Punjab-Haryana High Court
State Of Punjab And Another vs M/S Kalsi Pipes Private Ltd on 23 November, 2009
Author: Jaswant Singh
Bench: Jaswant Singh
VATAP59 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
VATAP No. 59 of 2009
Date of decision 23 .11.2009
State of Punjab and another ...Appellants
Versus
M/s Kalsi Pipes Private Ltd., Jalandhar ... Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr.P.K.Jain, Addl. AG Punjab ,Advocate for the appellants
Mr. Vinod Kr. Aggarwal, Advocate for the respondent.
1.To be referred to the Reporter or not ?
2.Whether the judgement should be reported in the Digest ?
M.M.KUMAR, J.
The State of Punjab has filed the instant appeal under Section 68(2) of the Punjab Value Added Tax Act,2005 challenging order dated 23.4.2009 (A.3) passed by the Value Added Tax Tribunal Punjab, Chandigarh (for brevity 'the Tribunal'). The Tribunal has set aside the order passed by the appellate authority in appeal No. 49 of 2008-09 filed under Section 20(2) of the Punjab General Sales Tax Act,1948. The appellant/ revenue has claimed that substantial question of law would emerge from the order of the Tribunal which warrant determination by this Court. It is pertinent to mention that the dealer- respondent has made a claim for refund of Rs. 5,13,708/- claiming that the amount was within the exempted limit and the tax to the aforesaid extent was erroneously deposited as it felt that exemption had exhausted itself. The Tribunal after noticing various bills came to the conclusion that the rate which was charged by the dealer- respondent was the same after 5.2.2001 which did not include the element VATAP59 of 2009 2 of tax. The aforesaid findings of the Tribunal are discernible from the following extract:
"...... The assessing authority had noted that although the exemption limit was available to the dealer to this extent still refund cannot be allowed on the ground of undue enrichment. However, no discrepancy in the amount of tax was found and it was found that there was excess paid tax amounting to Rs. 5,13,708/- which could not be refunded on the ground of unjust enrichment. However, the fact remains that for the sales starting from 25.1.2001 onwards, the rate being charged was Rs. 48.50 per kg., which was including of tax. This rate continued after 5.2.2001 also for quite long time and the sale was at this rate inclusive of tax. However, after calculating the sale amount at that rate then sale amount was being reduced to the extent of tax on one side of the bill and Punjab tax and cess was being shown separately and total amount of the bill remained the same which means that this tax was not being charged from the customer but was just shown for the purpose of calculations after 5.2.2001 and therefore appears to have been paid in the Treasury feeling that exemption limit exhausted on 5.2.2001 when bill no. 650 was made."
We repeatedly asked the learned State counsel as to how the finding of fact would be vitiated when the rate of Rs.48.50 has been charged even in respect of the period for which refund amount has been claimed. We also asked the learned counsel to substantiate how it would amount to undue enrichment when the dealer- respondent has not collected tax from the third VATAP59 of 2009 3 party. There has not been any satisfactory explanation. The Assessing Officer as well as the appellate authority are presumed to have gone through the books of account and the entry of Rs.48.50 must have been duly reflected. There is no whisper in the grounds of appeal alleging anything to the contrary which lead to the conclusion that the findings recorded by the Tribunal are pure findings of fact which would not give rise to a substantive question of law. Therefore, the appeal does not warrant admission. Dismissed.
(M.M.Kumar) Judge (Jaswant Singh) 23.11.2009 Judge okg