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IN THE HIGH COURT OF STATE OF TELANGANA
M.S. RAMACHANDRA RAO, T. VINOD KUMAR, JJ.
KMC Constructions Limited - Appellant
Versus
The Assistant Commissioner (CT), Hyderabad and Ors. - Respondents
Writ Petition No. 20554 of 2020
Decided On : 07-06-2021
Constitution of India,1950 - Article 215 - Andhra Pradesh Value Added Tax Act, 2005 - Sections 40(2), 39 and 42 - Granting refund of excess tax paid by petitioner - Grant of refund of excess amount of tax paid and had executed an Indemnity Bond - Petitioner contends that aggrieved by order of 2nd respondent, passed in excise of revisional powers conferred under Section 32 of Andhra Pradesh Value Added Tax Act, 2005, as adopted by State of Telangana petitioner had preferred an appeal before the Tribunal, numbered as T.A. No.; that the said appeal was allowed in favour of petitioner order of the revisional authority - 2nd respondent, holding that petitioner is liable to pay tax at the enhanced rate of 5%, as introduced w.e.f. respect of ongoing works contracts as against rate of tax of 4% having opted to pay under composition scheme provided under the Act - determination, the petitioner requested for grant of refund of the excess amount of tax paid and had executed an Indemnity Bond undertaking that petitioner would refund the amount immediately on receipt of demand, if it was detected that the petitioner is not entitled for the said refund as sought for, and submitted same with 1st respondent on for crediting the excess tax paid to the petitioner's Bank account –
Finding of the court : Action of the 1st respondent in falsely deposing to counter affidavits filed into this Court as an act of perjury; that the proceeding dt. 28.11.2020 issued by the 3rd respondent without independent exercise of mind and recording reasons held to be mandatory by this Court cannot be sustained - apparently unpalatable to Revenue, are only intended to curb tendency in revenue matters which, if allowed to become widespread, could result in considerable harassment to assessee-public without any benefit to the Revenue. We would like to say that the department should take these observations in the proper spirit. The observations of the High Court should be kept in mind in future and the utmost regard should be paid by the adjudicating authorities and appellate authorities to the requirements of judicial discipline and the need for giving effect to the orders of the higher appellate authorities which are binding on them –
Result :Writ Petition is allowed
ORDER :
T. Vinod Kumar, J.
1. This Writ Petition is filed assailing the action of the respondents in not granting refund of excess tax paid by the petitioner for the tax period 2011-12 and 2012-13, respectively, in a sum of Rs. 4,44,62,188/-, pursuant to the order dt. 18.02.2019, in T.A. No. 176 of 2016 passed by the Telangana Value Added Tax Appellate Tribunal, Hyderabad (for short, 'the Tribunal').
2. The petitioner contends that aggrieved by the order dt. 30.05.2016 of the 2nd respondent, passed in excise of revisional powers conferred under Section 32 of the Andhra Pradesh Value Added Tax Act, 2005, as adopted by the State of Telangana (TVAT Act) (for short, 'the Act'), the petitioner had preferred an appeal before the Tribunal, numbered as T.A. No. 176 of 2016; that the said appeal was allowed in favour of the petitioner on 18.02.2019, whereby the order of the revisional authority - 2nd respondent, holding that the petitioner is liable to pay tax at the enhanced rate of 5%, as introduced w.e.f. 15.09.2011, in respect of ongoing works contracts as against the rate of tax of 4% having opted to pay under the composition scheme provided under the Act, was set aside.
3. The petitioner further contends that, upon the appeal being allowed by the Tribunal, the 1st respondent had passed consequential order, by his proceedings, dt. 15.05.2019, termed as "Revised Assessment Order" giving effect to the order of the Tribunal in T.A. No. 176 of 2016, dt. 18.02.2019; that by the said revised assessment order, the total excess tax paid by the petitioner was determined in a sum of Rs. 4,44,62,188/-; upon such determination, the petitioner requested for grant of refund of the excess amount of tax paid and had executed an Indemnity Bond undertaking that the petitioner would refund the amount immediately on receipt of demand, if it was detected that the petitioner is not entitled for the said refund as sought for, and submitted the same with the 1st respondent on 20.06.2019 for crediting the excess tax paid to the petitioner's Bank account; and that despite regular follow up with the 1st respondent, the amount of refund due to the petitioner in terms of the revised assessment order has not been paid.
4. This Court, on 18.11.2020, ordered notice before admission to the respondents, when the learned Standing Counsel appearing for the respondents sought time to get instructions in the matter. On 02.12.2020 and 23.12.2020, time was sought for on behalf of the respondents for filing counter. The case was again listed on 20.01.2021, and as no counter was filed by the respondents, this Court taking note of the admitted fact that the petitioner had been declared to be entitled to a refund of Rs. 4,44,62,188/-, pursuant to the order of the Tribunal in T.A. No. 176 of 2016, granted one week time to the respondents to credit the said refund amount to the bank account of the petitioner, failing which, this Court directed for the appearance of the 2nd respondent.
5. However, the respondents did not credit the amount to the petitioner's account as directed by this court, and instead, filed a counter along with a vacate petition, on 26.01.2021. The said counter affidavit has been deposed to by the 1st respondent. By the said counter filed, the respondents sought to justify their action of not refunding the excess tax amount determined to the petitioner, in pursuance of the revised assessment order, dt 15.05.2019, on the ground that the respondent- revenue had preferred a Revision against the order of the Tribunal dt. 18.02.2019 to this Court under Section 34 of the Act and the same is pending. In the counter filed, it is also stated that the 2nd respondent, being the designated authority, in exercise of powers conferred under Section 40(2) of the Act, vide proceedings in RC. No. A7/789/2019 dt. 28.11.2020, permitted the 1st respondent to withhold the refund; and that the present Writ Petition has become infructuous and not maintainable.
6. On 28.01.2021, the 2nd
Point of law: the law declared by the highest court in the State is binding on authorities or Tribunals under its superintendence, and that they cannot ignore it either in initiating proceeding or de....
The main legal point established is that the withholding of a refund under Section 241A of the Income Tax Act, 1961 requires detailed and compelling reasons to be recorded in writing, and the exercis....
The court emphasized that orders passed by administrative or quasi-judicial authorities are required to stand or fall on their own and subsequent explanations by way of affidavit(s) cannot be permitt....
Procedural violations in tax adjudication require rectification to uphold the rights to refunds and interests, emphasizing the need for jurisdiction and fair hearing in administrative processes.
No bar under Section 54(1) CGST Act on second refund application for inadvertently omitted invoice within prior quarterly period if filed within two-year limitation; technical rejections invalid, mat....
Public authorities must provide an opportunity to explain delays in tax refund claims before rejecting them as time barred.
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