Case Law Details
VA Tech Wabag Ltd. Vs State of Assam (Gauhati High Court)
The Rule 29 of the Assam Value Added Tax Rules 2005 provides that a claim for refund as provided under Section 50(1) of the AVAT Act, 2003 shall be made in Form 37 within 180 (one hundred and eighty days) from the date of assessment or reassessment. The said Rule prescribes the manner in which the Form is to be filled and submitted seeking claim of refund. Provisio to Rule 29(1)(a) of the AVAT Rules gives a latitude to the Prescribed Authority to entertain an application seeking refund submitted even after the prescribed period of 180 (one hundred and eighty days) from the date of assessment or reassessment as the case may be. The Prescribed Authority may consider the refund claim if it is satisfied that the dealer had sufficient cause for not making an application within the said period. What will be sufficient cause has not been described in the statute. The Prescribed Authority is given the liberty to entertain such claims that may be filed even after the expiry of prescribed period of 180 (one hundred and eighty days) from the date of assessment or reassessment on sufficient causes being shown by the dealer. Accordingly, it is implied under the provisions of Section 50 of the AVAT Act 2003 read with Rule 29(1)(a) AVAT Rules 2005 that if cause(s) shown by a dealer are not considered to be sufficient then the Prescribed Authority must reflect and disclose the reasons therefor in the order passed by the Prescribed Authority rejecting any claim for refund made by a dealer, namely the petitioner company in the present proceeding.
The Department’s Notice dated 21-05-2015 at page 32 of the writ petition called upon the petitioner to submit proof of submission of applications or otherwise submit reasons for late filing of refund applications. The petitioner duly responded to the Notice issued by the Department. A copy of the refund application of 2006-07 originally submitted was also stated to have been enclosed with the reply submitted. However, as discussed above the department vide the impugned order dated 09-12-2016 rejected the claims of refunds sought by the petitioner. It is evident from the recital of the impugned order that the question of the delay which occurred in filing the refund petition, whether ought to be condoned or not, was not adequately addressed to by the respondent No.3. There was also no reference to the application seeking refund and/or the relevant orders of assessment which indicates the refund available/payable to the petitioner. There was no reference in the impugned order, regarding any enquiry etc. made by the Departmental Officer to have arrived at a finding that the applications were not filed, which the petitioner on the contrary had claimed it had filed within the relevant time although no acknowledgement was received. That fact whether verified by the respondent authorities from the records before arriving at the conclusion as has been done by the impugned order, is not discernable from the impugned order.
This exercise of the respondent authorities although not reflected in the recital of the impugned order, the same is now sought to be supported by way of an affidavit filed on 03.09.2020 in respect of the impugned order which was passed on 09-12-2016. It is also stated in paragraph 4 of the affidavit filed by the Department before this court that the petitioner failed to submit any reasonable, logical and substantive reasons for not filing application within the prescribed time. Such explanation in a subsequent affidavit pursuant to the impugned order passed will amount to permitting the Department to expand the scope of an order passed by the Departmental Officer exercising quasi-judicial jurisdiction and which is not permissible under the statute. It has long been held that orders passed by administrative or quasi judicial authorities are required to stand or fall on its own. Subsequent explanations by way of affidavit(s) cannot be permitted in order to improve an order already passed by the Departmental Officer.
In view of all the above discussions, the writ petition is allowed. The impugned order dated 09.12.2016 and Communication No. 3589-90 dated 17-12-2016 is interfered with and is accordingly set aside and quashed.
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