Calcutta High Court (Appellete Side)
Commissioner Of Commercial Taxes ... vs Bgr Mining & Infra Limited & Ors on 7 February, 2023
Item No.6.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 07.02.2023
DELIVERED ON: 07.02.2023
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 161 of 2023
Commissioner of Commercial Taxes & Anr.
Vs.
BGR Mining & Infra Limited & Ors.
Appearance:-
Mr. T. M. Siddique,
Mr. Debasish Ghosh ... for the appellants.
Mr. Avra Mazumder,
Mr. Sumit Gadodia .... for the respondents.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra-Court appeal by the Government is directed
against the common order passed in a batch of writ petitions
including WPA 6426 of 2021 dated 6 th December, 2021. In respect
of the other matters, the Government had preferred appeal before
this Court in FMA 857 of 2022 and the same was dismissed by
judgment dated 23rd November, 2022. The operative portion of the
judgment reads as follows:-
106. In the result, the appeal is dismissed and
the issues which were raised are answered in the
following terms:-
Issues:-
(1) The writ petitioner/purchasing dealer
has locus standi to maintain the claim for refund
of the excess tax collected directly to them and
the writ petition is maintainable.
(2) To be entitled to concessional rate of
tax filing of Form "C" declaration is mandatory.
However, the time limit prescribed for filing such
declarations is directory and not mandatory and in
the case on hand the assessing officer having
accepted the Form "C" declarations and considered
the same, it is deemed that the assessing officer
of IOCL was satisfied that there was sufficient
cause which prevented the dealer from filing Form
"C" declaration within the time stipulated under
the Act and the rules framed thereunder.
(3) Having held that the rejection of the
Form "C" declarations was erroneous, unsustainable
and illegal the assessment order dated 30.06.2020
to the said extent is set aside.
(4) The writ petitioner is entitled to the
concession rate of tax as they have fulfilled the
conditions in Section 8 of the Central Sales Tax
Act, 1956 and the Form "C" declarations having
been verified and found to be in order by the
concerned authority of the State of West Bengal.
(5) For the reasons set out above, it is held
that the writ petitioners are entitled to claim
refund of tax directly from the State of West
Bengal and they are not required to make the claim
through the selling dealer, IOCL.
(6) Refund cannot be denied to the writ
petitioners by the State of West Bengal
disregarding the fact that excess tax was paid
under compelling circumstances namely non-issuance
of form "C" declarations.
(7) For the reasons set out above, it is held
that the writ petitioner can claim refund directly
from the appellants/State of West Bengal having
borne the burden of tax which have been collected
from the writ petitioner and deposited by IOCL
with the Exchequer of the State of West Bengal.
(8) The State of West Bengal/ appellants are
unjustified in refusing to refund the excess tax
as it had been allowing concessional rate to the
writ petitioners before and after the disputed
period.
(9)The circular issued by the Union of India
dated 01.11.2018 is binding on the
appellants/State of West Bengal as they being the
agent of the Central Government for levy and
collection of Central Sales Tax and non-refunding
of the excess tax collected is contrary to the
instruction dated 01.11.2018.
107. In the light of the conclusion which we have
arrived at, the order and directions issued by the
learned Single Bench stands affirmed and the
appellants/State of West Bengal is directed to
effect the refund of the excess tax collected
directly to the writ petitioner within 45 days
from the date of receipt of the server copy of
this order together with interest at the statutory
rate as stipulated under the WBST Act, from
01.07.2020 that is the day after the date on which
the assessment order in the case of IOCL was
passed that is 30.06.2020 till the date on which
refund is effected. If there is any discrepancy
in the date, it is clarified that interest shall
be payable from the next day after the date of the
assessment order till the date of payment."
2. In the result, the appeal filed by the department is
dismissed and the issues, which were raised are answered in the
following terms:-
Issues:-
(1) The writ petitioner/purchasing dealer has locus standi
to maintain the claim for refund of the excess tax collected
directly to them and the writ petition is maintainable.
(2) To be entitled to concessional rate of tax filing of
Form "C" declaration is mandatory. However, the time limit
prescribed for filing such declarations is directory and not
mandatory and in the case on hand the assessing officer having
accepted the Form "C" declarations and considered the same, it
is deemed that the assessing officer of IOCL was satisfied that
there was sufficient cause which prevented the dealer from
filing Form "C" declaration within the time stipulated under the
Act and the rules framed thereunder.
(3) Having held that the rejection of the Form "C"
declarations was erroneous, unsustainable and illegal the
assessment order dated 30.06.2020 to the said extent is set
aside.
(4) The writ petitioner is entitled to the concession rate
of tax as they have fulfilled the conditions in Section 8 of the
Central Sales Tax Act, 1956 and the Form "C" declarations having
been verified and found to be in order by the concerned
authority of the State of West Bengal.
(5) For the reasons set out above, it is held that the writ
petitioners are entitled to claim refund of tax directly from
the State of West Bengal and they are not required to make the
claim through the selling dealer, IOCL.
(6) Refund cannot be denied to the writ petitioners by the
State of West Bengal disregarding the fact that excess tax was
paid under compelling circumstances namely non-issuance of form
"C" declarations.
(7) For the reasons set out above, it is held that the writ
petitioner can claim refund directly from the appellants/State
of West Bengal having borne the burden of tax which have been
collected from the writ petitioner and deposited by IOCL with
the Exchequer of the State of West Bengal.
(8) The State of West Bengal/ appellants are unjustified in
refusing to refund the excess tax as it had been allowing
concessional rate to the writ petitioners before and after the
disputed period.
(9) The circular issued by the Union of India dated
01.11.2018 is binding on the appellants/State of West Bengal as
they being the agent of the Central Government for levy and
collection of Central Sales Tax and non-refunding of the excess
tax collected is contrary to the instruction dated 01.11.2018.
3. In the light of the conclusion which we have arrived at,
the order and directions issued by the learned Single Bench
stands affirmed and the appellants/State of West Bengal is
directed to effect the refund of the excess tax collected
directly to the writ petitioner within 45 days from the date of
receipt of the server copy of this order together with interest
at the statutory rate as stipulated under the WBST Act, from
01.07.2020 that is the day after the date on which the
assessment order in the case of IOCL was passed that is
30.06.2020 till the date on which refund is effected. If there
is any discrepancy in the date, it is clarified that interest
shall be payable from the next day after the date of the
assessment order till the date of payment.
4. There shall be no order as to costs.
5. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
