Rajasthan High Court - Jaipur
M/S Interglobe Aviation Ltd vs State Of Raj And Ors on 28 February, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Civil Writ Petition No.7130/2010 M/s Interglobe Aviation Limited having its Registered Office at Central Wing, G Floor, Thapar House, 124, Janpath, New Delhi through Authorized Signatory Vs. The State of Rajasthan through Finance Secretary, Jaipur and Others 2. S.B. Civil Writ Petition No.7129/2010 M/s Interglobe Aviation Limited having its Registered Office at Central Wing, G Floor, Thapar House, 124, Janpath, New Delhi through Authorized Signatory Vs. The State of Rajasthan through Finance Secretary, Jaipur and Others 3. S.B. Civil Writ Petition No.7128/2010 M/s Interglobe Aviation Limited having its Registered Office at Central Wing, G Floor, Thapar House, 124, Janpath, New Delhi through Authorized Signatory Vs. The State of Rajasthan through Finance Secretary, Jaipur and Others Date of Order ::: 28.02.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Raju Ramchandran, Senior Advocate, with Shri Pankaj Ghiya, Shri Shivendra Kundra, Miss Manisha Singh, Shri Anuroop Singhi, Shri Ramit Pareek, Advocates for the petitioners Shri R.B. Mathur with Shri Nikhil Simlote, Advocates for respondents #### //Reportable// By the Court:-
These three writ petitions have been filed by M/s Interglobe Aviation Limited having its Registered Office at Central Wing, G Floor, Thapar House, 124, Janpath, New Delhi through Authorized Signatory, (hereinafter shall be referred to as 'the petitioner-company') with the prayer that the orders dated 24.02.2010 (Annexure P-13 in Writ Petitions No.7130/2010 and 7128/2010 and Annexure P-12 in Writ petition No.7129/2010), by which its applications for refund of Value Added Tax were rejected, be quashed and set aside, and a mandamus be issued to the respondent- Commercial Taxes Department of the Government of Rajasthan, to refund to petitioner-company unduly collected amount Value Added Tax of Rs.85,20,747/- for the period from 06.0.01.2007 to 31.03.2007 in Writ Petition No.7129/2010 for the assessment year 2006-2007, Rs.4,12,30,035 for the period from 01.04.2008 to 18.01.2009 in Writ Petition No.7130/2010 for the assessment year 2007-2008, and Rs.6,11,37,585/- from the period from 01.04.2007 to 05.01.2008 and from 25.02.2008 to 31.03.2008 in Writ petition No.7128/2010 for assessment year 2008-2009.
Since common questions of law and facts were involved in all these matters, they were heard together and are being decided by this common judgment.
The petitioner-company is a public limited company registered under the Companies Act, 1956. It is engaged in the business of civil aviation. Its registration certificate authorizes it to sale aerated water, cookies, cashew nuts, juices, sandwiches, health bar, confectionery, tea and coffee. Petitioner-company filed three different applications respectively for assessment years 2006-2007, 2007-2008 and 2008-2009 before the Commercial Taxes Officer, Commercial Taxes Department, Circle-C, Ward II, Jaipur, under Section 53(1) of the RVAT Act for grant of refund. In the applications, it was inter-alia pleaded by the petitioner-company that it is a registered dealer under the Rajasthan Value Added Tax, 2003 and Central Sales Tax Act, 1956, having its principal place of business in Rajasthan at Sanganer Airport, Sanganer, Jaipur.
It is contended that petitioner-company regularly purchased Aviation Turbine Fuel (for short, 'ATF') from Indian Oil Corporation Limited (for short, ('IOCL') at Sanganer Airport, Jaipur, during the period aforesaid. In view of Schedule II, Entry No.3 of Notification No.S.O.458, dated 31.03.2006 and the sale of ATF was wholly exempt from taxation during the period from 06.01.2007 to 05.01.2008. In view of Notification No.S.O. 438, dated 25.02.2008, the ATF was leviable to tax at the rate of 4% during the period from 25.02.2008 to 18.01.2009, if the sale of ATF was made to an airline having a HUB in Rajasthan. It was only during the intervening period from 06.01.2008 to 24.02.2008 that the ATF was subject to the levy of VAT at the rate of 28%. Since the petitioner-company had set up a HUB at Sanganer Airport, Jaipur, it was eligible for exemption in terms of provisions aforesaid. Certificates issued by the IOCL proves VAT charged which were also produced along-with the application. Apart from the certification by the Ministry of Aviation vide letter dated 12.01.2009, copy of the Press Reports at the press briefing given by Shri Subhash Chandra Garg, Principal Secretary (Finance) of the Rajasthan Government, was also produced.
All three refund applications submitted by the petitioner-company were rejected by respondent no.3 the Assistant Commercial Taxes Officer vide three different orders passed on 24.02.2010, hence these writ petitions.
Shri Raju Ramchandran, learned Senior Advocate, appearing for the petitioner-company, has argued that Section 8 of the VAT Act empowers the State Government to exempt the goods specified in the Schedule-I, whether prospectively or retrospectively, the sale or purchase by any person or class of persons as mentioned in Schedule-II from payment of tax, without any condition or with such condition as may be specified in the notification. The State of Rajasthan, in the present case, has issued Notification dated 31.03.2006 extending exemption from VAT to sale of ATF to any airline establishing a HUB in the State. Such exemption was valid till one year from the date of commencement of HUB. The notification is available on the record of writ petition as Annexure P-2. The petitioner-company, with the intention to avail of benefit promised under the said Notification, set up a HUB at Sanganer Airport, Jaipur, with effect from 05.01.2007, and started using the Sanganer Airport for parking its aircrafts at night, with flights originating from Jaipur. The petitioner-company also has its own maintenance and engineering team for repair and maintenance of aircraft stationed at Sanganer Airport, Jaipur. Besides, pilots of the petitioner-company are based at Jaipur. Creation of HUB has been certified by the Ministry of Civil Aviation, which is the only competent authority authorized to make such certification. Copy of said certificate dated 12.01.2009 is available on the record of writ petition as Annexure P-1. The Airport Authority of India, Jaipur Airport, Jaipur, vide its letter dated 12.09.2008, has also certified that petitioner-company parks its aircraft at Sanganer Airport, Jaipur at night, and its flights originate in the morning from Jaipur, and that the petitioner-company has its own engineering Department. The copy of the certificate dated 12.09.2008 is available as Annexure P-3 on record of writ petition. It was thereafter that the Government of Rajasthan in exercise of its powers under Section 8(3) of the VAT Act, 2003, issued another notification dated 25.02.2008, whereby the sale of ATF was wholly exempted from taxation/leviable to tax to the extent the rate of tax exceeds 4%, subject to the same condition that the airlines which establishes a HUB in the State; registers flying clubs for their training flights; and which for the first time connect cities of the State having no air service.
Shri Raju Ramchandran, learned Senior Advocate, argued that petitioner-company regularly purchased ATF from IOCL at Sanganer Airport, Jaipur, with the payment of VAT whereas the sale of ATF to the petitioner-company was exempt from payment of VAT wholly in view of Entry No.3 contained in Schedule II to the Rajasthan VAT Act for the period from 06.01.2007 to 05.01.2008, in view of Notification dated 31.03.2006 and such sale was liable to tax at the rate of 4% only for the subsequent period from 25.02.2008 to 18.01.2009 in view of the notification dated 25.02.2008. It was only during the intervening period of 06.01.2008 and 24.02.2008 that the sale of ATF to petitioner-company was subject to the levy of VAT at the rate of 28%. Subsequently, however, the Government of Rajasthan has vide its Notification dated 19.01.2009 rescinded the Notification dated 25.02.2008. The tax collected has been deposited by the IOCL, Jaipur with the respondent Commercial Taxes Department, which has issued a certificate to the petitioner-company stating so.
Shri Raju Ramchandran, learned Senior Advocate, argued that the respondent-Department failed to appreciate that conditions of the exemption notifications were fully complied with. Respondents have wrongly held that the returns filed by the petitioner-company in Form VAT-10 cover only items sold by it, and does not include any claim for refund in respect of ATF. Commercial Taxes Officer has illegally rejected the applications of the petitioner for refund on irrelevant and extraneous considerations such as that the petitioner-company has not got its HUB registered and that the ATF is not included in the registration certificate of the petitioner-company and further that the returns filed by the petitioner-company in Form VAT-10 returns do not show any claim of refund. There is neither any requirement nor any provision under the VAT Act for registration of the HUB in terms of VAT Act or in terms of the Notifications that entitled the petitioner-company to exemption.
It is argued that for the purpose of refund, it is wholly irrelevant whether or not the petitioner-company's registration certificate has shown ATF as one of the items it would trade in. Since ATF was meant for self-consumption of the petitioner-company, there was no question of petitioner's company including the same in the registration certificate. Non-inclusion of ATF in the registration certificate would not justify non-refund of the excess amount collected by the respondent Department. Even if the tax has been collected by the IOCL but it has ultimately been deposited with the respondent Department.
Shri Raju Ramchandran, learned Senior Advocate, further argued that the question of filing revised return by the petitioner-company would not arise in the present case because VAT herein was paid on purchase of ATF, which was used for self-consumption by the petitioner-company. Learned Senior Advocate referring to Rule 19(8) of the VAT Rules, submitted that charging of VAT by IOCL could neither be a case of error nor omission on the part of the petitioner-company, therefore, the question of filing revised return would not arise. The Commercial Taxes Officer has in the impugned order, wrongly referred to the provisions of Section 17(2) of the VAT Act and the Rule 27(1-A) of the VAT Rules, whereas it was pure and simple case for refund of VAT wrongly levied on and calculated from the petitioner-company and such a case would fall under Section 53 of the VAT Act. The very object and purpose of inserting Section 53 in the VAT Act is to ensure that the State is not unjustly enriched.
Regarding objection of alternative remedy raised by the respondent Department, learned Senior Advocate submitted that it is not a case where the petitioner-company has directly approached this court claiming refund of the VAT. The petitioner-company has first availed of the alternative remedy of going to the competent authority under Section 53 but since the Commercial Taxes officer has shut the door on the petitioner-company, there was no option left for it except to approach this court. The Commercial Taxes Officer in refusing to grant refund has failed to consider relevant considerations and has been guided by extraneous and irrelevant considerations. He has proceeded on erroneous assumption that the applications have been filed under Section 17(2). He has failed to lawfully exercise the jurisdiction vested in him. If the competent authority has refused to exercise the jurisdiction on illegal, untenable and extraneous grounds, it would be a just case for this court to make an interference. It is argued that as it is the present writ petitions have remained pending before this court for last three years, it would be too harsh upon the petitioners if at this stage they are relegated to the remedy of appeal.
Learned Senior Advocate Shri Raju Ramchandran, in support of his arguments, has relied on the judgments of the Supreme Court in Union of India and Another Vs. State of Haryana and Another (2000) 10 SCC 482, H.P. And Others Vs. Gujarat Ambuja Cement Limited and Another AIR 2005 SC 3936, Godavari Sugar Mills Limited Vs. State of Maharashtra and Others (2011) 2 SCC 439, Salonah Tea Co. Ltd. and Others Vs. Superintendent of Taxes, Nowgong and Others (1988) 1 SCC 401, and Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd.,(2005) 8 SCC 242.
Shri R.B. Mathur, learned counsel for respondent-Department raised preliminary objection that the order passed by the Assistant Commercial Taxes Officer under Section 53 of the VAT Act can be challenged by the petitioner-company by way of appeal before the Deputy Commissioner under Section 82 of the VAT Act, and then further appeal lies to the Rajasthan Tax Board under Section 83 of the VAT Act. There is no extraordinary or special reason for this court to directly entertain the writ petitions against the orders refusing to grant refund particularly when in this case petitioner would not be required to make any pre deposit. The petitioner-company should therefore be required to avail the alternative remedy of appeal.
Shri R.B. Mathur, learned counsel for the respondents Department, submitted that there is no justification for the petitioner-company to bye pass the remedy of two successive appeals available to it. In support of his arguments, learned counsel for the respondents Department has relied on the following judgments of the Supreme Court in Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Another AIR 1983 SC 603,; Whirlpool Corporation Vs. Registrar of Trade marks, Mumbai and Others (1998) 8 SCC 1,; Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another (2010) 4 SCC 772, and United Bank of India Vs. Satyawati Tondon and Others (2010) 8 SCC 110.
Shri R.B. Mathur, learned counsel for the respondents Department, has argued that the competent authority has rightly rejected the application claiming refund because ATF was not included either in the items which the petitioner-company intended to purchase or sell, as would be evident from its registration certificate (Annexure-11). The petitioner-company never got its HUB registered as dealer under VAT Act for the purpose of taxation or for that matter, seeking exemption from payment of tax. It is argued that the petitioner-company never informed the respondent Department about setting up of the HUB. It was for the first time that when the petitioner-company filed applications claiming refund on 17.09.2009, that the respondent came to learn about starting of HUB. The petitioner never claimed any exemption even when it purchased ATF from IOCL.
Shri R.B. Mathur, learned counsel for the respondent-Department, has referred to the returns filed by the petitioner-company during the relevant years and submitted that there is a particular column, being Column No.16, wherein the assessee could claim refund. But in none of these three assessment years, did the petitioner claim any refund in the returns which are on record. Petitioner did not even file revised returns, which it could do within a period of three years from the date of filing of the original returns, to claim refund. Learned counsel for respondent-Department, has referred to the certificate of registration of the petitioner-company under the Rajasthan VAT Act, dated 10.01.2008 that came into effect with effect from 01.04.2007 and for the Central Sales Tax dated 12.01.2008 which came into effect from 04.01.2008, both of which have been filed with the reply to the writ petitions, respectively, as Annexure R/1, R/2.
Shri R.B. Mathur, learned counsel for the respondent-Department has argued that burden of proving excess or undue levy of tax according to Section 53(5) of the VAT Act lies on the dealer. No specific date has been given as to when the petitioner-company started HUB. It is essentially a question of fact whether at all they have started and if started from which date and therefore this court in a matter having such disputed questions of fact ought not to entertain a writ petition.
Before adverting to the merits of the case, it would be apposite to deal with the objections raised by the revenue as to the maintainability of the writ petition against the order refusing to grant of refund of tax.
The first and foremost judgment relied on by Shri R.B. Mathur, learned counsel for the respondent Department, in support of this objection, is that of Titaghur Paper Mills, supra, wherein it was held that if in the scheme of the Act, there is a hierarchy of authorities before which the petitioner can get adequate redress against the wrongful acts complained of, and the Act provides for a complete machinery to challenge an order of assessment, then such orders can be challenged only by the mode provided by the Act and not by a petition under Article 226 of the Constitution.
The judgment of the Supreme Court in Whirlpool Corporation, supra,, is the landmark decision on the question of maintainability of writ petition despite availability of alternative remedy. In that case too, it was held by the Supreme Court that under Article 226 of the Constitution, the High Court having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. The High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction, but the alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least four contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or where the vires of an Act is challenged.
In Whirlpool's case, supra, the Supreme Court followed its earlier two Constitution Bench judgments in A.V. Venkateswaran, Collector of Customs Vs. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 and Calcutta Discount Co. Ltd. Vs. ITO, Companies Distt. - AIR 1961 SC 372.
In A.V. Venkateswaran, Collector of Customs, supra, the Supreme Court held as under:-
"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual fact which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."
In Calcutta Discount Co. Ltd., supra, the Supreme Court held as under:
"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act."
In Raj Kumar Shivhare, supra, writ petition was entertained by the High Court even though appeal under Section 35 of the Foreign Exchange Management Act, 1999 also lay before the High Court on a question of law. The Supreme Court held that the appellant failed to demonstrate why the appellate jurisdiction of the High Court under Section 35 of the Act does not provide an efficacious remedy. The Supreme Court while setting aside the judgment of the High Court granted liberty to the appellate before it to file appeal before the High Court under Section 35 of the FEMA within a period of thirty days. That judgment turned out on its peculiar facts.
In United Bank of India Vs. Satyawati Tondon and Others, supra, it was held by the Supreme court that in the matters arising out of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, where alternative remedy by filing application under Section 17(1) before Debts Recovery Tribunal is available to the writ petitioner, the High Court should not under Article 226 of the Constitution entertain writ petitions and grant stay in such matters except where writ petitioner is able to show that the case falls within any of the exceptions carved out in the judgments of the Supreme Court.
In H.P. and Others Vs. Gujarat Ambuja Cement Limited and Another, supra, the Supreme Court while considering the objection of alternative remedy to filing of writ petition under Article 226 of the Constitution, held that despite existence of alternative remedy, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution. But normally, the High Court should not interfere if there is efficacious alternative remedy is available. If somebody approaches the High Court without availing alternative remedy provided, the High Court should ensure that he has made out a strong case that there exists good ground to invoke the extraordinary jurisdiction. Following observations of the Supreme Court are reproduced herein for the facility of reference:-
Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. Income Tax Officer, Bareilly, AIR (1971) SC 33 that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition.
The Supreme Court in Salonah Tea Co. Ltd., supra, held that normally in a case where tax or money has been realized without the authority of law, there is in such cases concomitant duty to refund the realization as a corollary of the constitutional inhibition that should be respected unless it causes injustice or loss in any specific case or violates any specific provision of law. If the tax was collected without authority of law, the respondents had no authority to retain the money and were liable to refund the same, held the Supreme Court. It held that in an application under Article 226 of the Constitution, the Court has power to direct refund, however, courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. A petition solely praying for issue of a writ of mandamus directing the State to refund the money allegedly collected by the State of tax is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against authority which had illegally collected the money as a tax. In Godavari Sugar Mills Limited, supra, also it was held by the Supreme Court that there is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment.
Core question that requires to be decided is whether the present case falls within any of the exceptions carved out by the Supreme Court so as to justify entertainment of the writ petition by this court under Article 226/227 of the Constitution in the face of remedy of appeal under Section 82 of the VAT Act. The Constitution Bench of the Supreme Court in Whirlpool Corporation, supra, enlisted four exceptions, viz., namely, where the writ petition has been filed for enforcement of fundamental rights; where there has been violation of principle of natural justice; where the order of proceedings is wholly without jurisdiction; and where the vires of Act is challenged. But their Lordships though noticed earlier Constitution Bench decision in Calcutta Discount Co. Ltd., but did not mention yet another exception to this rule laid down therein, which was that where availing of alternative remedy subjects a person to lengthy proceedings and unnecessary harassment, writ petition may be entertained. The Supreme Court in Union of India and Another Vs. State of Haryana and Another, supra, has added one more exception to the rule of alternative remedy, namely, the writ petition can be entertained despite alternative remedy if the question raised is purely legal one, there being no dispute on facts.
There are thus these six well recognized exceptions to the rule of alternative remedy, which can be culled out from the afore discussed judgments of the Supreme Court, firstly where the writ petition has been filed for enforcement of fundamental rights; secondly where there has been violation of principle of natural justice; thirdly where the order of proceedings is wholly without jurisdiction; fourthly where the vires of any Act is under challenge; fifthly where availing of alternative remedy subjects a person to very lengthy proceedings and unnecessary harassment; and sixthly where the writ petition can be entertained despite alternative remedy if the question raised is purely legal one, there being no dispute on facts.
Despite afore-noted exception, especially fifth of the above, whether or not in a particular case the writ court should entertain a petition under Article 226/227 of the Constitution despite availability of alternative remedy, would always depend on the facts situation of a given case. In the present case, the petitioner has been able to demonstrate before this court that it has been charged VAT on purchase of ATF whereas it was fully exempt for the first phase, and has been charged excess rate by 24% in the second phase even though under the exemption notification issued by the Government it was not liable to pay VAT during the first phase and ought to have been charged more than the rate of 4% during the second phase and that the IOCL has certified the fact of purchase of ATF by the petitioner and charging of VAT thereon and deposit of the same with the respondent-Department. The petitioner has also been able to show that its HUB actually started though there may be some dispute as to when the HUB effectively started functioning at Jaipur. While the petitioner asserts that the petitioner's HUB started functioning at Jaipur from 05.01.2007, the respondents dispute this fact. Dispute raised by the respondent pertains to the exact date on which it started but they possibly are not in a position to dispute that HUB of the petitioner actually started working at Sanganer Airport, Jaipur, and by virtue of commencement of HUB at Jaipur, the petitioner-company was entitled to exemption of tax. Assertion that the petitioner did not give information regarding actual date of commencement of HUB to respondent-Department, does not tantamount saying that HUB actually did not start from Jaipur. In fact, the competent authority has not denied either the fact of payment of VAT by the petitioner or he in any case could not have denied the fact of exemption granted to the HUB. He has not even disputed the fact of commencement of HUB, which he in any case could not dispute in the face of certification by the Government of India and Airport Authority of India. Yet, this can be a matter of enquiry as to exactly on which date it started.
Then there remains three objections, which the respondents have raised, firstly that HUB has not been got separately registered by the petitioner; secondly, that the ATF was not included in the registration certificate of the petitioner as dealer in Form-03 as an item which it intended to purchase and thirdly the petitioner did not in its return submit any claim for refund in Column 16 thereof. These objections shall have to be considered in the light of impugned order passed by the competent authority rejecting the application of the petitioner for refund.
Perusal of the impugned order indicates that while the competent authority has mentioned that the purpose of refund application was different than for which the petitioner-company got itself registered and taking that view, the competent authority has relied on provisions of Section 17(2) and Rule 27 of the VAT Rules, to observe that refund can be claimed only against the amount of input tax paid by the assessee. But that is not the case here because the purpose for which the refund application was moved was different than merely claiming input credit. The assessing officer also stated that the HUB was not registered and therefore the ATF was not included as one of the inputs, which the assessee could procure from the market. Third reason given by the assessing officer is that the application for refund was not on prescribed proforma. But then, the assessing officer in the order rejecting the application for refund has not either way commented on the fact whether or not the HUB started working from Jaipur on 05.01.2007 and if at all the HUB started working, was it not entitled to exemption from payment of VAT for first phase and subsequently reduced the rate in the second phase and thirdly if at all the petitioner has been made to pay full VAT at the rate of 28% for both the phases to IOCL, or whether the same has not been deposited with the respondent Department?
What therefore emerges is that basic facts have remained undisputed even in the order of rejecting the application for refund. Contention that the petitioner is not a registered dealer with the Commercial Taxes Department, cannot be accepted as a valid objection. Question thus arises whether a person who is not at all registered as a dealer with the respondent-Department, can he still claim refund? The assessing officer, while rejecting the application of the petitioner for claim of refund, has relied on Section 17(2) of the Act and Rule 27, whereas the application for refund in the present case was made under Section 53 of the RVAT Act. Section 53 in its sub-section (3) itself provides that where an amount or tax is collected from a person, who is not registered under this Act and such amount or tax is not found payable by him, or where an amount in lieu of tax for any works contract is deducted in any manner by an awarder from any bill of payment to a contractor, who is not liable to pay tax under this Act, the amount or tax so collected or deducted shall be refunded in the prescribed manner by the Assistant Commissioner or the Commercial Taxes Officer, as the case may be. To the same effect is Rule 29. The said Rule provides that where any amount of tax or any amount in lieu of tax has been collected or deducted from a person not registered under the Act, and he same is not found payable by him, such person shall submit an application in Form VAT-22, to claim refund of said amount, to the Assistant Commissioner or Commercial Taxes Officer in whose jurisdiction such person ordinarily resides, and in case of person not residing in the State, such application shall be submitted to the officer authorized by the Commissioner in this behalf with proof of payment of tax, copy of contract and any document in support of the claim that it is not liable to pay the tax. On submission thereof, the officer, on being satisfied as to the correctness of such document, shall issue the refund in Form VAT-23-A within sixty days of submission of the application completed in all respect. When there are these provisions which provide for refund to a person not even registered under the Act, case of the petitioner-company cannot be taken worst than such person because petitioner-company in any case is a registered dealer with the respondent-Department.
As regards delay in submitting the claim for refund, the assessing officer could very well decide not to grant any interest to the petitioner-company for the period of delay despite sub-section (4) of Section 53 of the RVAT Act, providing for payment of interest on the amount of refund at such rate as may be notified by the State Government, because the petitioner-company neither raised the claim for refund in the return nor did it file any revised return within the prescribed period of limitation, and that it raised the claim for refund of VAT paid in 2006-07, 2007-08 and 2008-09 for the first time on 17.09.2009.
In all these writ petitions, the petitioner-company has sought a direction to the respondent Commercial Taxes Department for refund of the VAT collected from it which it was exempt to pay or was required to pay at the nominal rate of 4% per annum as a consequence of striking down the order refusing to refund such unduly collected tax and rejecting the claim of the petitioner-company for such refund, the petitioner-company has thus not directly approached this court claiming for a direction to the respondent-Department for refund nor has it straightway prayed for a direction for refund. In Salonah Tea Co. Ltd., supra, the Supreme Court has made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. In Godavari Sugar Mills Limited, supra, again a similar distinction was reiterated by the Supreme Court. The fact that the present writ petitions have been filed in the latter category of two, besides being covered respectively by fifth and sixth exceptions enumerated above, according to which, relegating the petitioner to alternative remedy now after these writ petitions have remained pending for three years before this court, would subject it to lengthy proceedings and unnecessary harassment and the present writ petitions raise purely legal question, there being no substantial dispute on facts, though a feeble attempt was made on the part of the respondents about their being disputed questions of facts but in view of the aforesaid discussion, no such dispute is actually found to exist from the order rejecting the application for refund. Respondents cannot be therefore permitted to supply additional reasons to the rejection order in the course of arguments now.
In view of the above discussion, the writ petitions succeed and are hereby allowed. Impugned orders dated 24.02.2010 in all the writ petitions, referred to above, are set aside. The matters are remanded back to the assessing officer to decide the claims of the petitioner-company for refund afresh, within six months after making appropriate enquiry in the light of above discussion. There shall be no order as to costs.
(Mohammad Rafiq) J.
//Jaiman// All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW