Case Law Details
Delhi And District Vs Assistant Commissioner Central Tax (Delhi High Court)
Conclusion: Once the statute provided for payment of interest and the stipulated conditions were fulfilled, the respondent/revenue would be obliged, in law, to pay the interest alongwith the refund. The fact that assessee submitted a communication that it will not claim interest, would not bar assessee from claiming the interest, as the law otherwise allowed for the same.
Held: In the instant case, the department passed an order stating that the assessee association had short paid towards tax. Assessee approached the High Court stating that the demand was more than Rs.50,00,000/- and no consultation prior to issuance of show-cause notice took place in the instant matter, contrary to the provisions of the master circular dated 10.03.2017, issued by the Central Board of Excise and Customs. It was also not disputed that before passing the impugned assessment order no personal hearing was granted to the authorized representative of the assessee. It was held that considering the fact that assessment had already been carried out by the adjudicating authority via order dated 03.01.2019 and that the remand order of the appellate authority was confined two only two aspects, there was no occasion for the adjudicating authority to pass a fresh assessment order reopening the entire assessment. Ordinarily, the impugned Order-in-Original was set-aside with a direction to the adjudicating authority to pass a fresh order. However, the adjudicating authority had not furnished an acceptable reason as to why the amount paid towards tax and cess i.e., Rs.36,27,615/- [Rs.36,94,642/- less Rs.67,027/] was not refunded, the writ petition insofar as the refund of the actual excess amount paid by assessee on account of the service tax and cess was concerned. The fact that assessee submitted a communication that it will not claim interest, would not bar the assessee from claiming the interest, as the law otherwise allowed for the same. It was not in dispute that statutory interest gets triggered under Section 11BB of the 1944 Act, once the stipulated period for refund of the amount gets over (in this case, the stipulated period was three months commencing from the date of receipt of application under sub-section (1) of Section 11BB of the 1944 Act). Once the statute provided for payment of interest and the stipulated conditions were fulfilled, the respondent/revenue would be obliged, in law, to pay the interest.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. The matter was listed, in the first instance, on 13.09.2021, when we had recorded the following after Mr Puneet Agarwal, learned counsel for the petitioner, was heard in support of the instant action:
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