Punjab-Haryana High Court
R.K. Rice Mills vs Excise And Taxation ... on 25 February, 2004
Equivalent citations: (2008)11VST223(P&H)
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. The Assessing Authority vide its order dated February 28,1984 imposed a penalty of Rs. 1,63,000, i.e., Rs. 88,000 under Section 48 of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as "the Act"). A sum of Rs. 75,000 had been imposed under Section 36 of the Act. The petitioner aggrieved of the order of the Assessing Authority, filed an appeal before the Appellate Authority which was accepted vide order dated March 28,1986 and that the matter was remitted to the Assessing Authority for deciding afresh. The terms of remittance were not to the liking of the petitioner and that an appeal was filed before the Sales Tax Tribunal, Haryana, which was decided vide order dated September 9, 1986 and that the terms of remittance order were further modified accordingly. Thereafter, the assessment was framed and resultantly, the demand was reduced to Rs. 1,09,000 vide order dated May 20, 1989.
2. This order was again challenged before the Appellate Authority and that the appeal was allowed vide order dated January 28, 1992 and that the contention of the assessee was accepted in toto. Resultantly, no demand remained to be recovered or become recoverable against the assessee.
3. It has been averred that after the Tribunal had passed the order on September 9, 1986, an application dated October 29, 1986 had been filed before the Assessing Authority for refunding the entire amount of Rs. 1,63,000 which had been paid by the assessee in pursuant to the earlier demand in pursuant to the order of assessment. The said application was rejected vide order dated December 24, 1986 which has been challenged before this Court by way of present petition.
4. Learned Counsel for the petitioner contends that the amount has been refunded in two portions, i.e., one was made on May 29, 1989 in the sum of Rs. 54,000 and secondly, the refund was made on May 20, 1992 but no interest whatsoever has been awarded, despite the interest payable in pursuant to Rule 35(1)(b) of the Haryana General Sales Tax Rules, 1975 (hereinafter referred to as "the Rules"). It has been pointed out that the Assessing Authority was required to pass an order accordingly within a period of sixty days from the date of receipt of such application and failing which interest would be payable to the dealer or to the person as the case may be at the rate specified in Sub-section (5) of Section 25 of the Act unless the Commissioner have reasons, to be recorded in writing, condones the delay. He has made reference to the aforesaid provision which reads as under:
(5). If any dealer fails to pay tax, as required by Sub-section (2A) or by Sub-section (3), he shall be liable to pay in addition to the tax payable, simple interest on the amount of tax remaining unpaid at one per cent per month from the date commencing with the date following the last date for the payment of tax, for a period of one month and at one and a half per cent per month thereafter during the period he continues to make default in the payment:
Provided that where the amount of tax not paid as required under Sub-section (2A) or Sub-section (3) does not exceed five hundred rupees, the interest payable thereon shall not exceed the amount of tax not so paid:
Provided further that for the purposes of calculation of interest, a period of fifteen days or more shall be deemed to be one month and the amount of fifty rupees or more but less than one hundred rupees shall be deemed to be one hundred rupees and a period of less than fifteen days and an amount of less than fifty rupees shall be ignored.
5. On the other hand, learned District attorney has argued that the refund which was payable to the assessee was passed on to him accordingly on May 20, 1989 and thereafter, the amount had been withheld on the premises that assessment had not been framed and that some liability would become recoverable. It has been further argued that in fact the assessment was framed afresh after remittance order and that a demand of Rs. 1,09,000 had been created against the assessee. Thus, no interest became due and payable to the assessee in pursuant to the aforestated provisions. However, it has been conceded that the assessment so framed upon remittance had been further challenged by way of an appeal by the assessee and that the appeal had been accepted in toto and there was no demand against the assessee.
6. After hearing learned Counsel for the parties and perusal of the pleadings and also the evidence produced on record by way of annexures appended to the petition I am of the view that this petition deserves to be allowed. It is the admitted case that the Tribunal had remitted the case finally vide order dated October 29, 1986 for framing the fresh assessment and it is also admitted that an application had been filed by the assessee in pursuant to Rule 35 of the Rules on October 29, 1986 and that the said application was required to be decided within sixty days in pursuant to the unamended Rules and that the order was passed within the aforestated period vide which the application had been rejected. The amount of Rs. 54,000 had been refunded vide order dated May 20, 1989 when the fresh assessment was made by the Assessing Authority vide which the demand of Rs. 1,09,000 had been raised against the assessee. It is not understandable as to how the amount had been withheld with effect from December 24, 1986 up to May 20, 1989, especially when there was no demand pending against the assessee. No doubt, the assessment proceedings were pending but there is no provision under which the amount could be withheld by the revenue as no demand was recoverable against the assessee. Thus, in view of Rule 35, beyond the period of sixty days, after filing of an application, the revenue would be liable to pay interest in accordance with Sub-section (5) of Section 25 of the Act (reproduced hereabove).
7. In view of the above, the petition is allowed and the order dated December 24, 1986 (copy annexure P8) is quashed. The respondents are directed to calculate the interest due and payable in accordance with the aforestated provisions within sixty days from the date of presentation of the calculations by the petitioner. It is clarified that such presentation shall be taken to be in continuation of an application which is statutorily required to be filed under the Rules, resultantly the question period for processing shall not be available except the aforestated period of sixty days. No order as to costs.