Gauhati High Court
Page No.# 1/9 vs The State Of Assam And 5 Ors on 25 February, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/9
GAHC010267932024
2025:GAU-AS:2016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6753/2024
SAI NATH TRADERS
KABAITARY, JOGIGHOPA, BONGAIGAON, ASSAM, PIN- 783382, A
PROPRIETORSHIP FIRM, REPRESENTED BY SRI SANJAY KUMAR SARKAR,
AUTHORISED REPRESENTATIVE
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, FINANCE (TAXATION) DEPARTMENT, DISPUR,
GUWAHATI- 781006
2:THE COMMISSIONER OF STATE TAXES
KAR BHAWAN
DISPUR
GUWAHATI- 781006
3:THE ADDITIONAL COMMISSIONER OF STATE TAXES
KAR BHAWAN
DISPUR
GUWAHATI- 781006
4:THE DEPUTY COMMISSIONER OF STATE TAXES
CENTRAL VAT AUDIT TEAM
KAR BHAWAN
DISPUR
GUWAHATI- 781006
5:THE SUPERINTENDENT OF STATE TAXES
CENTRAL VAT AUDIT CELL
KAR BHAWAN
DISPUR
GUWAHATI- 781006
Page No.# 2/9
6:THE SUPERINTENDENT OF STATE TAXES
KABAITARY CHECK POST CAMP AT O/O THE ASSISTANT COMMISSIONER
OF TAXES
BONGAIGAON
ASSA
Advocate for the Petitioner : MR. R DUBEY, MS N B KAYASTHA,MR. A N I HUSSAIN,MS. A
B KAYASTHA
Advocate for the Respondent : SC, FINANCE AND TAXATION,
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 25-02-2025 Heard Mr. R. Dubey, learned counsel for the petitioner and Mr. B. Gogoi, learned Standing Counsel, Finance and Taxation Department for all the respondents.
2. The petitioner has projected that he is the sole proprietorship firm, M/s Sai Nath Traders having its principal place of business at Kabaitary, Jogighopa, District - Bongaigaon, Assam and it used to deal in selling of coals. For the said purpose, it got itself registered as a dealer under the Central Sales Tax Act, 1956 ['the Central Sales Tax Act', for short] with CST Registration no. 18499942410.
3. The petitioner has preferred the instant writ petition stating that he is aggrieved by inaction on the part of the respondent authorities in granting refund in terms of a fresh Assessment Order dated 13.09.2024 and for not deciding a revision petition preferred before the revisional authority on 17.07.2024.
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4. The petitioner has stated that as a registered dealer under the Central Sales Tax Act, he was in the business of selling coals and for the Assessment Year : 2015-2016, it had filed returns for the period : 01.04.2015 to 31.03.2016 along with audit reports in Form 47 and Form 48 under the Assam Value Added Tax Rules, 2005. Assessments were carried out for the aforesaid period by the respondent authorities under the provisions of Section 36 of the Assam Value Added Tax Act, 2003 ['the Assam Value Added Tax', for short] read with Section 9[2] of the Central Sales Tax Act, initially resulting in an Assessment Order dated 18.12.2020 recording that the petitioner firm would be entitled to a refund amount. After the Assessment Order dated 18.12.2020, the petitioner submitted a refund application for the Assessment Year : 2015 - 2016 in prescribed form on 12.01.2021. But after receipt of the refund application, the respondent authorities issued a Show Cause Notice under Section 82[1] of the Assam Value Added Tax Act on 08.03.2022 stating that there were certain irregularities in the stock transfer and the vehicle numbers mentioned in the purchase register and asking the petitioner to show cause as to why fresh assessment should not be carried out for the period : 2015 - 2016. In response to the Show Cause Notice dated 08.03.2022, the petitioner submitted its Reply denying the contentions raised in the Show Cause Notice. After receipt of the Reply to the Show Cause Notice, the respondent authorities asked for production of the books of accounts for suo moto fresh assessment for the period : 2015 - 2016 under the Central Sales Tax Act by an Office Letter dated 31.05.2022. The petitioner accordingly, produced the books of accounts before the respondent no. 3.
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5. But thereafter also, another Show Cause Notice was issued to the petitioner by the respondent no. 3 on 20.07.2023 stating that the vehicle numbers provided by the petitioner were not in conformity with the Vahaan App and asked the petitioner to explain the discrepancies. In response, the petitioner submitted his Written Reply on 27.07.2023 and further placed reliance on a Circular no. 5/2012 issued by the Commissioner of Taxes, Assam to buttress his point that the records of all the vehicles might not be reflected in Vahaan App. After the Reply of the petitioner dated 27.07.2023, the respondent no. 3 passed an Order on 20.10.2023 observing inter alia that the Reply submitted by the petitioner was unsatisfactory and that the petitioner failed to explain the details of the vehicles and therefore, the refund application of the petitioner could not be accepted. By the said Order dated 20.10.2023, the respondent no. 3 further directed the Assessing Authority to conduct fresh assessment in respect of the petitioner for the period : 2015 - 2016 under the Central Sales Tax Act.
6. Being aggrieved by the Order dated 20.10.2023, the petitioner has assailed the same by preferring a writ petition, W.P.[C] no. 6862/2023. When the writ petition came up for consideration on 28.11.2023, the Court while issuing notice to the respondents and making the notice returnable on 08.01.2024, observed that it would not be in the interest of justice to stay the assessment proceeding which had been initiated on the basis of the impugned Order dated 20.10.2023. The Court had proceeded to observe that if in the assessment proceeding any demand is raised against the petitioner, the respondent shall not give effect to the said demand till the returnable date. The Court had further observed that the impugned Order dated 20.10.2023 as well as the assessment so proposed to be carried out on the basis thereof, would be Page No.# 5/9 subject to the outcome of the writ petition.
7. Based on the Order dated 20.10.2023, the respondent no. 4 issued a Notice dated 16/18.12.2023 directing the petitioner to produce the books of accounts for the Assessment Year : 2015 - 2016 under the Central Sales Tax Act. The petitioner, in view of the Order dated 28.11.2023 passed in the writ petition, W.P.[C] no. 6862/2023, participated in the said proceeding by producing the documents available at his end before the respondent no. 4. The respondent no. 4 had accordingly, carried out the assessment and passed an Order of Assessment dated 30.03.2024 assessing an amount of Rs. 1,63,05,370/- as refundable amount and assessed an amount of Rs. 41,10,130/- as total tax and interest payable. On receipt of the Assessment Order dated 30.03.2024, the petitioner submitted an application for refund of security on 23.04.2024, followed by a Representation dated 30.05.2024, for inclusion of interest in the refund voucher. In connection with the re-assessment proceeding, the Joint Commissioner of Taxes, Assam vide its Office Letter dated 19.06.2024 directed the Deputy Commissioner [the respondent no. 4] to resubmit the proposal for approval of refund of Rs. 1,63,05,370/- for the Assessment Year : 2015 - 2016. The petitioner had, in the meantime, aggrieved by the Assessment Order dated 30.03.2024, preferred a revision petition on 17.07.2024 before the revisional authority.
8. The petitioner has stated that subsequent to the revision petition, that he had submitted a nos. of representations to grant the refund amount as assessed by the Assessment Order dated 30.03.2024. But, to the surprise of the petitioner, the Assessment Order dated 30.03.2024 came to be rectified and Page No.# 6/9 after rectification, a fresh Assessment Order has been passed by the respondent no. 4 on 13.09.2024 whereby the refund amount, admissible to the petitioner, has been finalized for a sum of Rs. 1,61,10,097/-. The fresh Assessment Order dated 13.09.2024 has further ordered that the total tax and interest payable would be Rs. 43,05,403/-.
9. On receipt of the rectified Assessment Order dated 13.09.2024, the petitioner had submitted an application for refund on 16.09.2024 before the respondent authorities requesting to refund the amount of Rs. 1,61,10,097/- in an expeditious manner. The petitioner has stated that his refund application dated 16.09.2024 was followed by Representations, dated 01.10.2024 and dated 15.10.2024.
10. Mr. Dubey, learned counsel for the petitioner has submitted that the proprietor of the petitioner firm has been diagnosed with heart ailments and he has been undergoing treatments at various medical facilities at different places including Delhi. He has further submitted that the proprietor of the petitioner had undergone coronary angiography at Max Hospital, New Delhi on 09.11.2022 followed by medical checkup in the Years : 2023 & 2024. He has further submitted that the proprietor of the petitioner has been advised for medical check-up but due to non-disposal of his refund application and non-receipt of the admissible refund amount, the petitioner is facing financial difficulties at present. Mr. Dubey has further submitted that since the petitioner is agreeable to the fresh Assessment order dated 13.09.2024, there is no bar for the respondent authorities to consider and process the petitioner's refund application dated 16.09.2024 for the amount of Rs. 1,61,10,097/-, Page No.# 7/9 notwithstanding his challenge made earlier in the writ petition, W.P.[C] no. 6862/2023. It is further submitted by him that for the sum of Rs. 43,05,403/-, the petitioner has already submitted a fresh revision petition on 30.12.2024, the respondent authorities would be at liberty to proceed with the subsequent revision petition of the petitioner filed on 30.12.2024, disregarding his earlier revision petition filed on 17.07.2024. He has further submitted that while processing the refund petition, the petitioner's prayer for interest in terms of Section 52 and Section 53 of the Assam Value Added Tax should also be considered.
11. Mr. Gogoi, learned Standing Counsel, Finance and Taxation Department has submitted that when the petitioner had preferred a writ petition, W.P.[C] no. 6862/2023 [Annexure-14] assailing an Order dated 20.10.2023, the authorities proceeded with the assessment proceedings in terms of the liberty granted by the Order dated 28.11.2023 and has passed the fresh Assessment Order dated 30.03.2024, which was subsequently rectified on 13.09.2024. Since it is submitted by the petitioner that the petitioner would abide by the fresh Assessment Order dated 13.09.2024, the authorities can proceed to consider and process the refund application for the sum of Rs. 1,61,10,097/- submitted by the petitioner on 16.09.2024. In so far as the assail made by the petitioner with regard to the amount assessed at Rs. 43,05,403/- as total tax and interest payable is concerned, the case of the petitioner projected in the revision petition, stated to have been submitted already on 30.12.2024, can be considered on merits along with the petitioner's claim for interest made under Section 52 and Section 53 of the Assam Value Added Tax Act, 2003.
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12. Mr. Dubey, learned counsel for the petitioner in his reply submission, has submitted that since the amount of Rs. 1,61,10,097/- is admittedly due for refund as per the fresh Assessment Order dated 13.09.2024, the same should be processed in an expeditious manner as the petitioner is in urgent need of the amount for his medical treatment. Since the application for refund is pending since 16.09.2024, the same should be considered at the earliest.
13. Mr. Gogoi has submitted that since it is submitted on behalf of the petitioner that the petitioner would abide by the fresh Assessment Order dated 13.09.2024 before this Court today, therefore, the time period prescribed in Rule 29[1][G] of the Assam Value Added Tax Rules should be counted from today and thus, this writ petition can be disposed of within a direction to consider, process and finalize the refund application within a period of ninety days from today in accordance with the rules and procedure prescribed and the petitioner's claim for payment of interest would also be considered as per the rules and on merits. He has further submitted that since it is stated that the petitioner has submitted a fresh revision petition on 30.12.2024, the said revision petition will be considered as per law and on merits by the revisional authority within the time-limit prescribed and a period of three months would be sufficient for the revisional authority to dispose of the same. Mr. Gogoi referring to the stand taken in the affidavit-in-opposition, has submitted that the refund application of the petitioner, submitted on 16.09.2024, is already being processed.
14. I have duly considered the submissions of the learned counsel for the parties.
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15. Since it is submitted on behalf of the petitioner that the petitioner would abide by the fresh Assessment Order dated 13.09.2024, disregarding his earlier challenges, there appears to be no bar for the respondent authorities to proceed with the refund application submitted by the petitioner on 16.09.2024 for the sum of Rs. 1,61,10,097/- in accordance with law.
16. The submission made by Mr. Gogoi as regards the time period for disposal of the refund application within a period of ninety days is found reasonable and accordingly, it is directed that the proceeding with regard to the refund application dated 16.09.2024 should be brought to its logical conclusion within a period of ninety days from today. While considering the matter of refund, the competent authority shall also consider the petitioner's claim for interest in terms of Section 52 and Section 53 of the Assam Value Added Tax Act, 2003.
17. With regard to the revision petition submitted by the petitioner on 30.12.2024, this Court is of the considered view that the revisional authority should now take the said revision petition on board for consideration disregarding the earlier revision petition dated 17.07.2024, and the same should also be considered and disposed of on merits within an outer limit of three months from today.
18. This order disposes of the writ petition. No cost.
JUDGE Comparing Assistant