Rajasthan High Court - Jaipur
Commissioner Commercial Taxes vs Ms Raj Rajya Vidhut Utpadan Nigam Ltd ... on 14 August, 2023
Author: Sameer Jain
Bench: Sameer Jain
[2023:RJ-JP:17711]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Sales Tax Revision / Reference No. 90/2018
1. Commissioner, Commercial Taxes, Rajasthan, Jaipur.
2. Commercial Taxes Officer, Special Circle-1, Kota.
3. Commercial Taxes Officer, Special Circle-1, Jaipur.
----Petitioners
Versus
1. M/s. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., Vidyut
Bhawan, Jyoti Nagar, Jaipur.
2. M/s. Bharat Heavy Electricals Ltd., Ktps Shakatpura, Kota
----Respondents
For Petitioner(s) : Mr. Ayush Singh for
Mr. Punit Singhvi
For Respondent(s) : Mr. Sanjay Jhanwar, Sr. Advocate with
Mr. Rahul Lakhwani
Mr. Wilson Joy
HON'BLE MR. JUSTICE SAMEER JAIN
Order
14/08/2023
1. Present Sales Tax Revision has been filed against the order dated 26.03.2018, passed by the Division Bench of the Rajasthan Tax Board, Ajmer in Appeal No. 1996/2015, whereby the appeal preferred by the respondent was disposed of with certain directions.
2. The instant Sales Tax Revision was admitted on the following question of law:
"Whether in the facts and circumstances of the case of Rajasthan Tax Board was justified in giving directions of refund of the amount to respondent No. 1 who is not eligible fro the amount as the same were deducted from the unregistered dealers of outside State?" (Downloaded on 11/11/2023 at 07:10:31 PM)
[2023:RJ-JP:17711] (2 of 6) [STR-90/2018]
3. The ineluctable and concise facts, necessary for discerning the issue at hand, are as follows:
3/1 That the respondent no.1 filed one refund application by way of Annexure-1, wherein it was stated that the respondent no.1- M/s Rajasthan Rajya Vidyut Utpadan Nigam Ltd. had deducted the TDS from the payment made in favour of respondent no.2-Bharat Heavy Electricals Ltd., which was duly deposited by respondent no.1 in the Government Treasury.
3/2 That during the course of assessment proceedings, respondent no.2 submitted the requisite certificates in the form of VAT-41 before the Assessing Authority-The CTO, Special Circle, Kota for allowing the credit of TDS amount and to refund the said amount in its favour. However, an impediment was caused on ground of the provisions contained under Section 53(5) of the VAT Act, which state that the amount is to be refunded to the person who actually suffered the incidence of tax or has paid the amount. 3/3 That in light of the above, by way of the said refund application, it was averred by respondent no.1 that the incident of tax to the extent of TDS, was borne by the respondent no.1 and the said amount was also deposited by the respondent no.1 itself and no other person had claimed the refund for the said amount. Therefore, in light of the said facts, the respondent no.1 was entitled to claim refund to the tune of Rs. 49, 87,77,206/- for the AY 2007-2008.
3/4 That the said refund application so preferred by respondent no.1 was rejected vide order dated 15.07.2014 on the ground of jurisdictional issues.
(Downloaded on 11/11/2023 at 07:10:31 PM) [2023:RJ-JP:17711] (3 of 6) [STR-90/2018] 3/5 That against the order dated 15.07.2014, the respondent no.1 preferred an appeal before the appellate authority. However, much to the dismay of respondent no.1, the said appeal was also rejected by the First Appellate Authority.
3/6 That subsequently, the respondent no.1 further appealed before the learned Tax Board, and as a result, the order impugned dated 26.03.2018 was passed.
4. Being aggrieved of the said order, learned counsel for the petitioner-Revenue has contended that the order impugned has effectively closed the issue at hand by barring and/or precluding the Revenue Authorities from assessing the refund application on its own merits, especially by holding that the factum of the amount being refundable or not, did not seem to be under dispute for the AY 2007-2008. It was also argued by learned counsel for the petitioner-Revenue that the learned Tax Board had acted in excess of the jurisdiction bestowed upon it as the learned Tax Board while allowing the appeal and directing the Revenue to refund the amount in terms of Paragraph 14 of the order, erroneously assumed jurisdiction under Article 226 of the Constitution of India, thereby rendering the order to be bad-in- law.
5. Per contra, learned Senior Counsel, Mr. Sanjay Jhanwar, appearing on behalf of the respondents, has shed light on the following admitted questions of facts:That both the contesting
(i) parties before the Court are extended hands of the Government.
(ii) That the fact of the TDS amount so erroneously deducted by the respondent no.1- M/s Rajasthan Rajya Vidyut Utpadan Nigam (Downloaded on 11/11/2023 at 07:10:31 PM) [2023:RJ-JP:17711] (4 of 6) [STR-90/2018] Ltd., has already been paid back to respondent no.2- Bharat Heavy Electricals Ltd, as mentioned in the assessment order for the Year 2007-2008 dated 30.07.2013. So effectively, the refund liable to be effectuated, accrues to the respondent no.1 only.
6. In light of the facts stated above, learned Senior Counsel argued that the burden and/or incidence of tax was suffered by respondent no.1. Therefore, in light of Section 53(5) of the Rajasthan Value Added Tax Act, 2003, the respondent no.1 is duly entitled for refund. In support of the said submission, learned Senior Counsel also placed reliance upon Article 265 of the Constitution of India and argued that tax cannot be collected by the Revenue, without the due authority of law. Hence, the facts of the present case call for immediate payment of refund.
7. Heard and considered the arguments advanced by learned counsel for both the sides and scanned the record of the present Sales Tax Revision.
8. The instrumental extract of the order impugned dated 26.03.2018, causing grievance to the petitioner-Revenue, is reiterated herein-under:-
"16. It is also clarified that we have gone into a very limited issue for consideration i.e. 'issuance of refund by the appropriate authority' and not on the issue whether the amount is refundable or not, since that does not seem to be under dispute at least for the year 2007-08."
9. Upon a perusal of the refund application preferred by the respondent no.1- M/s Rajasthan Rajya Vidyut Utpadan Nigam Ltd. under Section 53 of the Rajasthan Value Added Tax Act, 2003 read with Rule 27(1)(a) of the Rajasthan Value Added Tax Rules, 2006 (marked as 'Annexure-1') as well as the order of rejection dated 15.07.2014 (marked as 'Annexure-2'), it is made abundantly (Downloaded on 11/11/2023 at 07:10:31 PM) [2023:RJ-JP:17711] (5 of 6) [STR-90/2018] clear that the contentions raised by the respondent no.1 qua refund, were never considered by the adjudicating body on merits. Rather, the application for refund was merely rejected on the ground of jurisdiction, without even entertaining any arguments in respect of the merits of the case. The order dated 15.07.2014 is reproduced herein-under:
Þmi;qZDr fo"k;kUrxZr izklafxd i= ds Øe esa ys[k gS fd vkius bl o`r esa o"kZ 2007&08 ,oa 2008&09 ds fjQ.M gsrq vkosnu fd;k gSA vki bl o`r esa iath--r O;olk;h ugha gSA jktLFkku oSV ,DV dh /kkjk 53¼3½ ds rgr vki viuk vkosnu tgka vki iath--r gS ogka izLrqr djs ,oa viath--r gksus dh fLFkfr esa Jheku vk;qDr egksn; okf.kfT;d dj foHkkx t;iqj ds ;gka viuk vkosnu izLrqr djsaA vr% vkids nksuks vkosnu o"kZ 2007&08 ,oa 2008&09 fujLr fd;s tkrs gSAß
10. Therefore, it was erroneous on part of the learned Rajasthan Tax Board to render its findings in terms of Paragraph 16 as reproduced above, and hold that the question as to whether the amount is refundable or not is not under dispute for the Year 2007-2008, especially in light of the fact that the contentions qua the refund were never considered by the authorities below while dismissing the application preferred by the respondent no.1, solely on the ground of jurisdictional issues.
11. Hence, in light of the said observations and taking into account the factum of non-consideration of the issue regarding refund on merits, this Court is inclined to set aside Paragraph 16 of the order impugned dated 26.03.2018. Furthermore, as paragraph Nos. 14 and 15 are inter-se connected with Para 16 and lay down the procedure for compliance of the order impugned, the same are also liable to be set aside.
(Downloaded on 11/11/2023 at 07:10:31 PM)
[2023:RJ-JP:17711] (6 of 6) [STR-90/2018]
12. Consequentially, this Court directs that the petitioner- Revenue, more particularly, petitioner no.3-Commercial Taxes Officer, Special Circle-1, Jaipur, who happens to be the competent jurisdictional officer adept with entertaining and/or adjudicating upon the issue at hand, to finally dispose of the matter within a period of 60 days from the date of receipt of a copy of this order. The said adjudication be performed in accordance with law, after duly taking into consideration the merits of the case. In this regard, the learned Officer shall also be required to furnish an assigned date for both the sides, within a period of one month from the date of receipt of a copy of this order, in order to provide them with an opportunity of hearing, before finally adjudicating upon the lis in question. It is cautiously clarified that due compliance be made of the principles of natural justice. The parties will be at liberty to furnish written submissions, at the appropriate stage, as deemed fit by the learned Officer. Lastly, the competent authority from respondent no.2- M/s Bharat Heavy Electricals Ltd., Kota is also directed to mark their appearance on the concerned date, along with all the records pertaining to the dispute at hand.
13. In light of the directions enumerated herein-above, the present Sales Tax Revision stands disposed of.
(SAMEER JAIN),J Pooja/16 (Downloaded on 11/11/2023 at 07:10:31 PM) Powered by TCPDF (www.tcpdf.org)