Case Law Details
Mobile Store Limited Vs Joint Commissioner, Commercial Taxes (Calcutta High Court)
1. This intra-Court appeal by the writ petitioner is directed against the order dated 29th November, 2022 in W.P.A. 23900 of 2022. The said writ petition was filed by the appellant praying for a direction upon the respondents to refund the amount of excess tax paid by the appellant as accepted by the department in Form – 27 dated 4th August, 2016 in Memo No.1681 in which it has been stated that the assessee has paid excess tax of Rs.1,64,22,581.16. Though such a form was issued by which the appellant was entitled for refund of the excess tax payable, the department did not refund the excess tax.
2. This prompted the petitioner to approach the West Bengal Taxation Tribunal in Case No.RN-1968 of 2017 with a prayer to issue a writ of mandamus to direct the department to refund the said amount. When the matter came up before the Tribunal on 28th September, 2018, the State made an oral submission that the appellant is due and payable a sum of Rs.1,22,55,623.45 being dues under the WBVAT Act as well as CST Act and an interest thereon of Rs.96,99,566/-. From the order passed by the Tribunal, it is seen that no affidavit or document was produced to show that how the amount was due and payable, whether an assessment order had been passed and on what date order was passed and when it was served on the appellant etc. The State requested time to ascertain as to whether any appeal has been filed as against the order against the WBVAT Act and CST Act. The matter was adjourned to 30th November, 2018.
3. Thereafter, it appears that the matter was adjourned from time to time but as of now the Tribunal is not functional on account of lack of quorum. We wish to point out on this aspect that a public interest litigation had been filed before this Court, which had been assigned to this Bench by the order of the Hon’ble The Chief Justice. At that juncture, the name of the Chairman of the Tribunal was yet to be finalised and during the pendency of the writ petition, the Chairman was nominated but however, the Technical Member is yet to be nominated. The matter stands adjourned to the monthly list of February, 2023.
4. Thus, as on date, the Tribunal is not functional and therefore, the appellant as well as the other similarly placed assessees are entitled to approach this Court under Article 226 of the Constitution of India.
5. Thus precisely what the appellant had done by filing the writ petition. The learned Single Bench had dismissed the writ petition holding that the appellant ought to have withdrawn the matter before the Tribunal and without doing so, if the writ petition is to be taken up for consideration, it would tantamount to parallel remedies being invoked and would render the proceedings before the Tribunal as infructuous.
6. We are not agreeable with the conclusion arrived by the learned Single Bench for more than one reason. Firstly, the appellant cannot at this juncture withdraw the proceedings before the Tribunal because the Tribunal is not functional on account of lack of quorum. Secondly, the Tribunal had not taken any final decision in the matter.
7. Therefore, it would have been well open to the writ Court to grant permission to the appellant to withdraw the proceedings before the Tribunal by making necessary submission in the writ petition. In any event, there is nothing on record to point out that there was an order of assessment under both the enactments, which had culminated in a demand. There is also nothing placed on record before the Tribunal or before this Court to show that the demand was pending prior to the issuance of the refund order in Form – 27 or subsequent to the said order. The respondents are not justified in linking both the proceedings. After the issuance of Form – 27 in which it has been clearly recorded that the appellant had paid excess tax, it is the duty of the department to refund the said amount and if the amount is not refunded within time, the appellant / assessee would be entitled to interest on the same as the department seeks to recover alleged tax dues with interest. The same principle will equally apply to the department as well when they have withheld the refund though Form 27 was issued as early as on 4th August, 2016.
8. Thus, sanction and payment of the excess tax collected is an independent proceedings to the proceedings that the department may initiate for any alleged tax dues either under the provisions of the WBVAT Act or under the CST Act.
9. Thus, we are of the considered view that the writ petition was maintainable. In the result, the appeal is allowed and the order passed in the writ petition is set aside. There will be a direction to the respondents to refund the sum of Rs.1,64,22,581.16 together with statutory interest from August, 2016 till the date of actual payment.
10. This direction shall be complied with by the respondents within a period of four weeks from the date on which the server copy of this order is served. This order will not preclude the department to proceed in accordance with law if, according to them, there are any alleged tax dues payable by the appellant.
11. In the light of the above direction, nothing further survives for consideration in the matter, which was filed by the appellant before the learned Tribunal and consequently, the proceedings before the learned Tribunal in case No.RN-1968 of 2017 stands closed.
12. There shall be no order as to costs.
13. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.
