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Allahabad High Court · body

2015 DIGILAW 3802 (ALL)

Jitendra Kumar Contractor v. State of U. P.

2015-12-03

TARUN AGARWALA, VINOD KUMAR MISRA

body2015
JUDGMENT We have heard Sri Suyash Agrawal, the learned counsel for the petitioner and Sri B. Tripathi, the learned counsel appearing for the State. 2. The petitioner has filed the present writ petition praying for a writ of mandamus commanding the respondents to refund the excess tax paid along with interest @ 18% per annum. 3. After hearing the learned counsel for the parties, we find that the claim for refund is for various assessment years. For the period 1994-95, 1995-96, 1999-2000 and 2004-05, the refund of excess tax has been refused on the ground that the petitioner has not submitted the TDS certificate in Form No. 76 of Act. This issue has been settled by a decision of this Court in M/s. Technical Construction Company, Muzaffarnagar v. Trade Tax Officer, Sector-1, Muzaffarnagar and others reported in 2006 U.P.T.C.--1378, wherein this Court held that the claim for refund of excess tax could not be denied merely on the ground that certificate of tax deducted at source had not been submitted in Form No. 76. The Court, accordingly, directed the department to refund the amount along with interest. The said decision is squarely applicable in the instant case for these assessment years. 4. We, accordingly, issue a mandamus directing the competent authority to refund the excess tax for the assessment years 1994-95, 1995-96, 1999-2000 and 2004-05 along with interest, as prescribed from time to time, under Section 29 of the U.P. VAT Tax Act within six weeks from the date of the presentation of a certified copy of this order. 5. For the assessment years 1996-97 and 1997-98, the refund of excess tax has been refused on the ground that the T.D.S. had not been deducted by the contractee and therefore, a false claim was being made by the petitioner. According to the petitioner, the contractee, who had deducted the tax at source was the Accounts Officer Telecom Circle Division, Agra. Whereas the counter affidavit reveals that the enquiry made by the Tax Department was from the Office of General Manager Telecom Sahjadi Mandi, Agra. According to the petitioner, the enquiry made by the Tax Department was from different contractee and therefore, correct information has not been provided to them. It was urged that if an enquiry is made from the correct contractee, namely, Account Officer Telecom Circle Division, Agra, requisite information would be provided. 6. According to the petitioner, the enquiry made by the Tax Department was from different contractee and therefore, correct information has not been provided to them. It was urged that if an enquiry is made from the correct contractee, namely, Account Officer Telecom Circle Division, Agra, requisite information would be provided. 6. In the light of the aforesaid, we direct the competent authority to make necessary enquiry within three months from the Office of Accounts Officer Telcom Circle Division, Agra and if information is given that they have deducted the TDS and necessary proof is submitted in which case the competent authority will issue a refund order along with interest within a further period of four weeks or pass an order giving reason for refusal to refund the excess tax for these periods. 7. For the assessment years 1998-99, 1999-2000, 2000-01 and 2003-04, it has come on record that the refund demanded by the petitioner was sanctioned and paid during the pendency of the writ petition. The petitioner, however, contends that he is entitled for payment of interest as per Section 29 of the U.P. Trade Tax Act and the payment of interest is essential and is required to be paid. 8. We accordingly direct the competent authority to pay interest on the refund so made for these assessment years as per prescribed rate provided under Section 29 of the Act within a period of six weeks from the date of presentation of a certified copy of this order. 9. With the aforesaid observations, the writ petition is accordingly disposed of.