Gauhati High Court
Larsen And Toubro Ltd vs The State Of Assam And 4 Ors on 30 October, 2024
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/18
GAHC010022732017
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2833/2017
LARSEN and TOUBRO LTD.
5, MILANPUR ROAD, BAMUNI MAIDAN, GUWAHATI- 781021, HAVING ITS
REGISTERED OFFICE AT L and T HOUSE, N.M. MARG, BALLARD ESTATE,
P.O. BOX NO. 278, MUMBAI- 400001 REP. BY ITS ASSISTANT MANAGER
INDIRECT TAXES MR. SOUMICK DAS, S/O LT. ANANDA MOHAN DAS, R/O
DWARKA NATH GHOSH LANE, BLOCK E-1, KOLKATA- 700027.
VERSUS
THE STATE OF ASSAM and 4 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, FINANCE TAXATION
DEPARTMENT, DISPUR, GUWAHATI -6.
2:THE COMMISSIONER OF TAXES
ASSAM
KAR BHAWAN
DISPUR
GUWAHATI-6.
3:THE DEPUTY COMMISISONER OF TAXES
GUWAHATI
ZONE A
KAR BHAWAN
DISPUR
GUWAHATI -6.
4:THE ASSISTANT COMMISSIONER OF TAXES
GUWAHATI
UNIT A
Page No.# 2/18
CIRCLE-99
NE WKAR BHAWAN
DISPUR
GUWAHATI-6.
5:THE SUPERINTENDENT OF TAXES
GUWAHATI
UNIT-A
NEW KAR BHAWAN
DISPUR
GUWHAATI -6
Advocate for the Petitioner : MR.A NATH, MR.A TODI,DR.B P TODI,MR.J U AHMED,MR.N J
MEDHI
Advocate for the Respondent : , MR.B CHOUDHURY,SC, TAXES
Linked Case : WP(C)/2844/2017
LARSEN and TOUBRO LTD.
5 MILANPUR ROAD
BAMUNI MAIDAN
GUWAHATI-781021
HAVING ITS REGISTERED OFFICE AT LandT HOUSE
N M MARG
BALLARD ESTATE
P.O BOX NO. 278
MUMBAI- 400001
REPRESENTED BY ITS ASSISTANT MANAGERINDIRECT TAXES MR.
SOUMICK DAS
S/O- LATE ANANDA MOHAN DAS
R/O- DWARKA NATH GHOSH LANE
BLOCK E-1
KOLKATA-700027
VERSUS
THE STATE OF ASSAM and 4 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT OF ASSAM
FINANCETAXATION DEPARTMENT
DISPUR
Page No.# 3/18
GUWAHATI-6
2:THE COMMISSIONER OF TAXES
ASSAM
KAR BHAWAN
DISPUR
GUWAHATI-6
3:THE DEPUTY COMMISSIONER OF TAXES
GUWAHATI
ZONE-A
KAR BHAWAN
DISPUR
GUWAHATI-6
4:THE ASSISTANT COMMISSIONER OF TAXES
GUWAHATI
UNIT A
CIRCLE-99
NEW KAR BHAWAN
DISPUR
GUWAHATI-6
5:THE SUPERINTENDENT OF TAXES
GUWAHATI
UNIT-A
NEW KAR BHAWAN
DISPUR
GUWAHATI-6
------------
Advocate for : DR.B P TODI
Advocate for : appearing for THE STATE OF ASSAM and 4 ORS.
Linked Case : WP(C)/1430/2017
M/S LARSEN and TOUBRO LTD.
MILANPUR ROAD
BAMUNI MAIDAN
GUWAHATI- 781021. HAVING ITS REGISTERED OFFICE AT L and T HOUSE
NO. N.M. MARG
BALLARD ESTATE
MUMBAI - 400001
REP. BY ITS ASSISTANT MANAGER INDIRECT TAXES
MR. SOUMIK DAS S/O LT. ANANDA MOHAN DAS
Page No.# 4/18
R/O DWARKA NATH GHOSH LANE
BLOCK E-1
KOLKATA- 700027.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
FINANCE TAXATION DEPARTMENT
DISPUR
GUWAHATI-6
2:THE COMMISSIONER OF TAXES
ASSAM
KAR BHAWAN
DISPUR
GUWAHATI -6.
3:THE ASSISTANT COMMISSIONER OF TAXES
GUWAHATI
UNIT-A
CIRCLE 99
NEW KAR BHAWAN
DISPUR
GUWAHATI-6.
4:THE SUPERINTENDENT OF TAXES
GUWAHATI
UNIT-A
NEW KAR BHAWAN
DISPUR
GUWAHATI -6.
------------
Advocate for : MR.A TODI
Advocate for : SC
FINANCE and TAXATION appearing for THE STATE OF ASSAM AND 3 ORS
Linked Case : WP(C)/1435/2017
M/S LARSEN and TOUBRO LTD.
MILANUR ROAD
Page No.# 5/18
BAMUNIMAIDAN
GUWAHATI - 781021
HAVING ITS REGISTERED OFFICE AT L and T HOUSE
MUMBAI- 400001
REP. BY ITS ASSISTANT MANAGER INDIRECT TAXES MR. SOUMIK DAS S/O
LT. ANANDA MOHAN DAS
R/O DWARKA NATH LANE
BLOCK E-1
KOLKATA- 700027
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
FINANCE TAXATION DEPARTMENT
DISPUR
GUWAHATI -6.
2:THE COMMISSIONER OF TAXES
ASSAM KAR BHAWAN
DISPUR
GUWAHATI -6.
3:THE ASSISTANT COMMISSIONER OF TAXES
CENTRAL VAT AUDIT CELL
KAR BHAWAN
DISPUR
GUWAHATI-6.
4:THE ASSISTANT COMMISSIONER
OF TAXES
GUWAHATI
UNIT-A
CIRCLE -99
NEW KAR BHAWAN
DISPUR
GUWAHATI -6.
5:THE SUPERINTENDENT OF TAXES
GUWAHATI
UNIT A NEW KAR BHAWAN
DISPUR
GUWAHATI -6.
Page No.# 6/18
------------
Advocate for : MR.A TODI
Advocate for : appearing for THE STATE OF ASSAM AND 4 ORS
Before
Hon'ble Mr. Justice SOUMITRA SAIKIA
Date of Hearing : 02.09.2024.
Date of Judgment : 30.10.2024
Judgment and Order (CAV)
Heard Dr. A. Todi, learned counsel for the petitioner. Also heard Mr. B.
Choudhury, learned Standing Counsel, Tax and Finance Department.
2. Since all these writ petitions are filed by the same writ petitioner, namely,
M/S Larsen & Toubro Ltd. being aggrieved by non-refund of the excess tax
amount paid by the petitioner for different assessment years, these 4 (four) writ
petitions are taken up together and disposed of by this common order. The brief
facts of the cases are given herein below.
3. The writ petition i.e. WP(C) No.1430/2017 is directed against the order
dated 16.11.2016 passed by the Assistant Commissioner of Taxes, Guwahati,
whereby the refund claims made by the petitioner under the Assam Value
Added Tax Act (AVAT), 2003 and Assam Value Added Tax Rules, 2005 were
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rejected as being time barred. The petitioner is a Public Limited Company
incorporated under the Companies Act, 1956, having its registered office at L&T
house, N.M. Marg, Ballard Estate, Mumbai-400001. The petitioner carries on the
business of execution of works contract of various natures at different places
within the country awarded by the various authorities of the Central
Government as well as the State Government of different States. The petitioner
company is also having its office in Assam at Milanpur Road, Bamunimaidam,
Guwahati-781021. The petitioner is represented by its Assistant Manager
(Indirect Taxes) in the present proceedings. The petitioner carries on its
business within the State of Assam which is registered under the Assam Value
Added Tax Act, 2003 bearing Identification No. (TIN) 18410028777. Being a
registered Company, the petitioner submits its returns regularly before the
competent authorities and has been paying taxes regularly.
4. For the period of 2006-07 the petitioner submitted its returns before the
Superintendent of Taxes, Guwahati, Unit-A (Respondent no.5). The returns filed
were duly received by the Superintendent of Taxes, Guwahati, Unit-A on
29.09.2007. In the returns filed by the petitioner, it was clearly mentioned that
there was excess tax paid by the petitioner to the tune of Rs.2,28,58,239/-
(Rupees Two Crores Twenty Eight Lakhs Fifty Eight Thousand Two Hundred and
Thirty Nine) only. The said excess tax was paid on the account of tax already
deducted at source by the VAT Authorities.
5. It is submitted that the petitioner was served with a notice being Notice
No.1163 dated 28.05.2009 requiring the petitioner to appear in audit
assessment proceedings contemplated under Section 36 of the Assam Value
Added Tax Act, 2003. The said notice was issued proposing to take up audit
assessment for 2 assessment years, namely, assessment year 2005-06 and
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2006-07. The petitioner responded to the said notice by filing representation
dated 03.06.2009 intimating the authorities that for the assessment 2005-06
assessment was initiated and completed by the competent officer and an
assessment order in that respect was passed on the basis of the audit
assessment proceedings. Pursuant to the said representation filed by the
petitioner, no further proceedings was initiated by the Department nor any
information to that effect was furnished to the petitioner in spite of enquiries
made by the petitioner on number of occasions. It is submitted that the
assessment for particular assessment year are completed by the Department
ordinarily at the belated stage and as per the Assam Value Added Tax Act, 2003
assessment proceedings by the respondent can be taken up beyond 5 years but
within 8 years from the ends of the relevant assessment year. Accordingly, it is
submitted that the petitioner awaited for further information from the
Department in respect of the completion of the assessment proceedings for the
assessment year 2006-07, but no such assessment order was issued by the
assessing authority, namely, the Assistant Commissioner of Tax, Unit-A, Circle-99
(respondent no.3) or by the Superintendent of Taxes, Guwahati, Unit-A
(Respondent no.4). Since the petitioner did not receive any intimation from the
Department in respect of the assessment proceedings for the assessment year
2006-07, the petitioner filed a refund application seeking refund of the taxes
paid in excess. The said application for refund was filed under Form-37 as
prescribed under the Assam Value Added Tax Rules, 2005 and was submitted by
the petitioner under cover of its letter dated 28.10.2016. The said refund
application, however, came to be rejected by the impugned communication
No.3309 dated 16.11.2016 rejecting the refund application filed by the
petitioner. The Department rejected the application on the ground of the said
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being time barred under the provisions of the Assam Value Added Tax Act, 2003
read with the Rules, 2005. Being aggrieved, the present writ petition has been
filed putting to challenge the rejection made by the respondent authorities of
the claim for refund which the petitioner claims to be entitled to under the AVAT
Act and Rules, 2005.
6. The refund application dated 31.03.2016 was filed by the petitioner by
which the petitioner claims refund of Rs.8,03,660/- for the assessment year
2007-08. However, the same was also rejected by the Department by its
communication dated 2245 dated 15.09.2016 and the same is also challenged
by way of filing writ petition being WP(C) No.1435/2017. For the assessment
year 2009-10 and 2010-11 similar refund applications were filed on 28.03.2016
and 31.03.2016 by claiming refund of Rs.2,38,14,179/- for the assessment year
2009-10 and Rs.2,74,92,353/- for the assessment year 2010-11 and such claims
for refund were also rejected by the communication dated 3033 dated
07.01.2017 by the respondents authorities as being time barred. These rejection
orders are put to challenge by the petitioner by filing WP(C) No.2844/2017 &
WP(C) No.2833/2017.
7. It is submitted by the learned counsel for the petitioner that earlier for the
assessment year 2010-11, when the petitioner had submitted its refund claims
as no order was passed by the Department the petitioner had approached this
Court by filing WP(C) No.293/2017 praying for a direction to the respondents to
pass appropriate orders. Subsequently, by order dated 03.03.2017, the writ
petition came to be disposed of upon the submissions made by the State
Counsel that the refund application has been rejected by the Department. The
Coordinate Bench of this Court while disposing of the writ petition directed the
respondent authorities to furnish a copy of such an order on the petitioner and
Page No.# 10/18
granted liberty to the petitioner to challenge the said order, if so advised and
accordingly, the petitioner has approached this Court challenging the impugned
orders rejecting the refund claims filed by the petitioner.
8. It is submitted by the learned counsel for the petitioner that though initially
notices were issued by the Departmental Authority proposing to assess for the
relevant assessment year, however, pursuant to such notices being issued and
the petitioner also filed due representations in response to the notices, no such
orders were passed nor any communication was issued to the petitioner
regarding the assessment proposed to be carried on by the Department. It is
submitted that pursuant to the notices issued by the Department the petitioner
has also appeared before the Authorities and submitted relevant documents.
But, no order was passed by the Department. Subsequently, having not received
any information from the Department, the petitioner filed its refund application
seeking refund of excess tax paid. This refund application, however, were duly
accepted by the authority initially, however, subsequently the refund application
came to be rejected by the impugned order dated 16.11.2016 on the ground of
being time barred. It is urged by the learned counsel for the petitioner that the
delay, if any, that may have occurred in filing the refund is because of lack of
information or intimation by the Department pursuant to the issuance of notice
for the assessment proceeding which the Department did not carry forward. It is
submitted that under such circumstances, when an assessee is served with a
notice for the assessment proceedings pursuant to filing of its returns and
where the assessee had also responded to the said notice by filing necessary
representation, the assessee is entitled to be intimated about the status of such
proceedings and any order(s) passed by the Department. It is submitted that no
such orders were ever passed and/or was the petitioner intimated about the
Page No.# 11/18
outcome of such proceedings undertaken. It is only thereafter the petitioner had
filed the refund application being unaware as to the status of the assessment
proceedings. The said refund application filed by the petitioner was rejected by
the Assessing Officer compelling the petitioner to approach this Court by filing
WP(C) No.293/2017 which came to be disposed of by the order dated
03.03.2017. The learned Standing Counsel, Finance & Taxation Department
submits that the refund application came to be rejected with the order which is
impugned in the present proceedings. It is submitted that under such
circumstances, the delay, if any, cannot be attributed to the writ petitioner.
9. Learned counsel for the petitioner submits that there is no dispute that the
petitioner is entitled to refund of excess value added tax paid. Under such
circumstances, the lawful claim of the petitioner towards excess tax paid cannot
be denied by the Department without putting the petitioner to notice and
affording an opportunity to be heard before rejecting its refund application by
way of impugned order. Referring to the Rule 29 of the Assam Value Added Tax
Rules, 2005, learned counsel for the petitioner submits that ordinarily an
application for refund in the prescribed form is to be filed within 180 days from
the date of the assessment or reassessment. Such an application for refund can
be admitted by the prescribed authorities if he is satisfied that the delay has
sufficient cause for not making the application within the said period. It is
submitted by the learned counsel for the petitioner that no opportunity of
explaining the delay was afforded to the petitioner as no notice was served to
the petitioner before the impugned orders dated 16.11.2016, 15.09.2016 and
07.01.2017 were issued rejecting the claim of the petitioner. Learned counsel for
the petitioner, therefore, submits that the impugned orders dated 16.11.2016,
15.09.2016 and 07.01.2017 be interfered with and set aside and the
Page No.# 12/18
respondents be directed to consider the claim and release the refund amounts
due to the petitioner. The petitioner submits that the petitioner's company is
also entitled to an interest on the refund claims and the same may also be
directed to be paid by the respondents along with the refund. In support of his
contention, the petitioner has referred to the judgment in WP(C) No.6314/2017
(M/s Va Tech Wabag Ltd vs. the State of Assam & 2 Ors.) as well as WP(C)
No.1790/2021 (Rajendra Kumar Deorah vs. State of Assam & Ors.). Referring to
those judgments, it is submitted that this Bench had earlier considered refund
claims of similarly situated assessees and directed the concerned authorities to
release the refund claims made.
10. Learned counsel for the petitioner has also referred to the judgment
rendered by the Hon'ble Tripura High Court passed in WP(C) No.139/2021 (M/s
Nandini Impex Pvt. Ltd. vs. The State of Tripura & 3 Ors.) in support of his
contentions.
11. Mr. B. Choduhury, learned Standing Counsel, Finance & Taxation
Department appearing for respondents strongly disputes the submissions made
by the learned counsel for the petitioner. He submits that the Department has
contested the writ petition by filing an affidavit-in-opposition. Referring to the
said affidavit the Department submits that under the provisions of Rule 29 of
the Assam Value Added Tax Rules, 2005 where the amount of refund is more
than 3 (three) lakhs, the refund is to be considered by the Higher Officers. In
the present case, as the refund sought for was more than 10 (ten) lakhs, the
Deputy Commissioner of Taxes forwarded the application to the Commissioner
of Taxes. The Commissioner of Taxes upon perusal of the application and upon
due consideration of the provisions of Rule 29 of the Assam Value Added Tax
Rules, 2005 rejected the application. The learned Standing Counsel for the
Page No.# 13/18
Department submits that there is no infirmity in the order rejecting the
application as there is a clear prescription under the Rule 29 of the Rules that
the refund applications are to be filed within 180 days from date of filing the
returns along with audit reports. Accordingly, for each of the relevant
assessment years, the refund application was filed well beyond 180 days from
the date of filing the returns along with the audit report. It is submitted that for
the assessment years 2009-10 and 2010-11 the period of audit assessment
prescribed expired on 31.03.2015 and 31.03.2016 respectively. Therefore, the
Departmental Authorities rightly rejected the refund claims. It is submitted that
there is no infirmity in the impugned orders dated 16.11.2016, 15.09.2016 and
07.01.2017 which call for interference in the present proceedings and the writ
petitions should, therefore, be dismissed.
12. Learned counsel for the parties have been heard and the pleadings
available on records have been carefully perused.
13. Before proceeding further in the matter the reference of Section 50 and
Rule 29 of the AVAT Act, 2003 and AVAT Rules, 2005 are necessary to be
referred to. Section 50 and Rule 29 of the AVAT Act, 2003 and AVAT Rules, 2
reads as under
"50. Refund : (1) Subject to other provisions of this Act and the rules made hereunder, if it is found
on the assessment or reassessment, as the case may be, that a dealer has paid tax, interest or penalty
in excess of what is due from him, the Prescribed Authority shall, on the claim being made by the
dealer in the prescribed manner and within the prescribed time, refund to such dealer the amount of
tax, penalty and interest paid in excess by him : Provided that, such refund shall be made after
adjusting the amount of tax or penalty, interest or sum forfeited or ail of them due from, and
payable by the dealer on the date of passing of order for such refund.
(2) Where the amount of input tax credit admissible to a registered dealer for a given period
exceeds the tax payable by him for the period, he may, subject to such restrictions and conditions as
may be prescribed, seek refund of the excess amount, by making an application in the prescribed
form and manner, containing the prescribed particulars and accompanied with the prescribed
documents to the Prescribed Authority, or adjust the same provisionally with his future liability to
tax in the manner prescribed. Provided that the amount of tax or penalty, interest or sum forfeited
or all of them due from, and payable by, the dealer on the date of such adjustment shall first be
Page No.# 14/18
deducted from such refund before adjustment".
"Rule 29. Refund.-- (1)(a) The application for refund as referred to in subsection (1) of section 50
shall be made in Form-37 within one hundred and eighty days from the date of assessment or
reassessment, as the case may be:
Provided that an application for refund made after the said period may be admitted by the
Prescribed Authority, if he is satisfied that the dealer had sufficient cause for not making the
application within the said period.
(b) An application for refund shall be signed and verified as in the case of application for
registration in case of a registered dealer.
(c) The Prescribed Authority may reject, any claim for refund if the claim filed appears to involve
any mistake apparent on the record or appears to be incorrect or incomplete, based on any
information available on the record, after giving the dealer the opportunity to show cause in writing
against such rejection.
(d) When the Prescribed Authority is satisfied that the refund claimed is due he shall record an
order sanctioning the refund.
(e) When the amount to be refunded is more than rupees three lakh the Prescribed Authority shall
take prior approval of Deputy Commissioner before sanctioning such refund. The Deputy
Commissioner shall not approve the refund if the amount to be refunded exceeds rupees ten lakhs
but forward such cases to the Commissioner for approval. Where the amount to be refunded is
more than fifty lakhs, the Commissioner shall take prior approval of the Government before
sanctioning such refund.
(f) When an order for refund is passed refund voucher in Form-38 shall be issued in favour of
claimant if he desires payment in cash and advice in Form39, shall, at the same time be forwarded
to the Treasury Officer concerned.
(g) Where any amount refundable under this sub-rule is not refunded to the dealer within the period
of ninety days of claim of refund made in accordance with the provisions of clause (a) of this sub-
rule, the refund voucher shall include the interest specified under section 52 covering the period
following the end of the said period to the day of refund. The authority issuing such order shall
simultaneously record an order sanctioning the interest payable, if any, on such refund, specifying
therein, the amount of refund, the payment of which was delayed, the period of delay for which
such interest is payable and the amount of interest payable by the State Government and shall
communicate the same to the Commissioner stating briefly the reasons for the delay in allowing the
refund:
Provided that in computing the period of ninety days, the following periods shall be excluded:-
(i) any delay attributable to the conduct of the person to whom the refund is payable; and
(ii) the time during which any reasonable inquiry relating to the return or claim was initiated and
completed and the time taken for adjustment by the refunding authority of any tax, interest and
other amount due.
(h) After the refund is sanctioned if the claimant desires to adjust the amount of refund due to him,
the Prescribed Authority shall set off the amount to be refunded or any part thereof against the tax,
if any, remaining payable by the claimant or against the future dues.
(i) The Prescribed Authority shall enter in a register in Form-40 particulars of all the refunds
allowed in pursuance of assessment orders, all applications for refunds and of the order passed
thereon".
14. Having noticed the provisions extracted above, it is evident that the Rule 29
clearly prescribes the period before which the refund claims are required to be
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filed. However, proviso to Rule 29 (1) (a) empowers the prescribed authority to
admit an application for refund beyond the period prescribed, namely, 180 days
from the date of assessment or reassessment, if the authority is satisfied that
the sufficient cause has been made out to justify the delay for not making the
application within the said period.
15. From a perusal of the impugned orders it is evident that the refund
applications were rejected on the ground that these were time barred.
Impugned orders do not reflect that the petitioner was given any notice to
explain the cause of delay. The affidavit-in-opposition filed by the respondents
also does not explain the position as to whether the petitioner was put to notice
and given an opportunity to explain the reasons for the delay in filing the refund
applications prior to issuance of the impugned orders.
16. There is no dispute also that claims for refund sought for by the petitioner
is also not disputed by the respondent Department denying the claims that the
petitioner is otherwise not entitled under the law to claims the refund. The
notices issued for the proceedings that the assessment by the Department
which are referred to in the writ petitions are also not disputed by the
Department. Under such circumstances, it is evident that the Department did
initiate a proceeding for assessment which, however, was not carried out for the
reasons best known to the Department.
17. Under such circumstances, it would have been appropriate for the
Department to pass necessary orders after issuance of notice to explain the
cause of delay. being filed by the asessee. The Department was required to
intimate the assessee about the progress or culmination of any such assessment
proceedings pursuant to issuance of any such notice. 'Tax' is a compulsory
exaction of money by the State which must be duly authorized by law. Where
Page No.# 16/18
under the prescribed law it is found that certain amount is payable and
refundable to the assessee, it is not expected that the State will withhold such
refunds by raising a technical plea of the claims of being time barred, that too,
without affording any opportunity to the assessee to explain the reason of delay
which according to the Department has occurred in filing the claims for refund.
In this context, the judgment passed by the Hon'ble Supreme Court in M/s. Shiv
Shankar Dal Mills and Ors. vs. State of Haryana and Ors. reported in (1980) 21
SCC 437 is considered to be relevant for this purpose. In the said judgment
Hon'ble Mr. Justice V.R. Krishna Iyer while deciding an issue relating to the
refund of market fees held that where public bodies, under colour of public law,
recover people's moneys, later discovered to be erroneous levies, the dharma of
the situation admits of no equivocation. There is no law of limitation, especially
for public bodies, on the virtue of returning what was wrongly recovered to
whom it belongs. Nor is it palatable to our jurisprudence to turn down the
prayer for high prerogative writs, on the negative plea of 'alternative remedy',
since the root principle of law married to justice is ubi jus ibi remedium.
He quoted Dicey as under:
"(i) The saw ubi jus ibi remedium, becomes from this point of view something more important than a mere
tautological proposition. In its bearing upon constitutional law, it means that the Englishmen whose
labours gradually formed the complicated set of laws and institutions which we call the Constitution, fixed
their minds far more intently on providing remedies for the enforcement of particular rights or for averting
definite wrongs, than upon any declarations of the Rights of Man or Englishmen....The Constitution of the
United States and the Constitutions of the separate States are embodied in written or printed documents,
and contain declaration of rights. But the statesmen of America have shown an unrivalled skill in providing
means for giving legal security to the rights declared by American Constitutions. The rule of law is as
marked a feature of the United States as of England.
(ii) social justice is a pervasive presence; and so, save in special situations it is fair to be guided by the
strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of
Page No.# 17/18
distributive justice, while moulding the relief, by consenting to restore little sums, taken in little
transactions, from little persons, to whom they belong."
18. This Court takes note of the judgment and order dated 20.01.2021 passed
by this Court in WP(C) No.6314/2017 ( M/s Va Tech Wabag Ltd. vs. the State of
Assam & 2 Ors.) and judgment and order dated 03.05.2023 passed in WP(C)
No.1790/2021 (Rajendra Kumar Deorah vs. State of Assam & Ors.). This Court
in these judgements had earlier come to the conclusion that since there is
already a power available to the prescribed authority to examine the delay
which may have occurred in filing the refund application by putting the asseesse
to notice and as such, step was not undertaken by the respondent authority
before issuing the impugned orders, it was held that the matter will require
consideration at the hand of the respondent authority.
19. In view of the above, the impugned orders dated 16.11.2016, 15.09.2016
and 07.01.2017, therefore, are set aside. The matter is remanded back to the
concerned respondent(s)/prescribed authority and this Court permits the
asessee to explain the causes of delay that may have occurred in filing the
refund application. These reasons if and when furnished by the asessee will be
duly considered by the prescribed authority and thereafter, if it is found that the
petitioner has paid excess value added tax then the authority will process the
refund application after consideration of the explanation as may be submitted
by the assessee explaining the delay and thereafter, shall pass appropriate
orders. Any such order(s) that may be passed, copies thereof shall be served to
the assessee. The entire exercise is directed to be completed within a period of
60 (sixty) days from the date of receipt of such condonation of delay application
along wtih a certified copy of this order.
20. The writ petitions are allowed in terms of the above directions. No order as
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to cost.
JUDGE
Comparing Assistant
