By C. B. Thakar | Advocate
G. G. Goyal, Janak Vaghani | Chartered Accountants
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Sales tax — Refund — Dealer entitled to refund as per returns filed where assessment is set aside as time-barred — Sections 30, 45(1) and 60 of West Bengal Sales Tax Act, 1994.
Facts:
The dealer applied for refund of excess payment as per returns filed and amount paid after assessment under compulsion, where assessment order was set aside by the Tribunal being barred by limitation. The Department rejected his application against which dealer filed an application before the West Bengal Taxation Tribunal. Since there was difference in opinion between technical and judicial members, the matter was referred to the Full Bench for decision.
Held:
(1) Absence of an assessment order does not and cannot mean that the assessee’s tax liability under the Act remains uncertified or un-quantified. If the assessment is not made, then the assessee’s tax liability gets quantified as per the amount of tax payable on the basis of the return figures. If the assessment is made, tax liability is quantified as determined/ assessed amount.
(2) Setting aside of an assessment order on the ground that it was time-barred and failure to pass an assessment order have the same legal impact.
(3) Section 60 of the Act providing for grant of refund did not confine refund only to excess payments made after an assessment order.
(4) Accordingly, the dealer is entitled to get refund of tax paid in excess, if the tax payable under the Act, even if excess payment is made voluntarily, if there is no unjust enrichment thereby. Accordingly, the application was allowed with direction to grant refund of TDS as well as paid after the assessment.
