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2017 DIGILAW 2496 (ALL)

INDIA YAMAHA MOTOR PVT. LTD. v. STATE OF U. P.

2017-11-01

ABHINAVA UPADHYA, ASHOK KUMAR

body2017
JUDGMENT : Ashok Kumar, J. 1. In this writ petition the petitioner has prayed for a direction for refund of Rs. 10,92,26,607/- for the assessment year 2009-10 and further a direction be issued modifying/quashing the order of refusal of the aforesaid refundable amount. 2. An amendment application has been filed by the petitioner, which has been allowed and accordingly, the writ petition has been amended, by which the petitioner has sought the following relief’s : "(i) that a suitable writ, order or direction in the nature of writ of mandamus be issued directing the respondent no. 2 to refund Rs. 10,92,26,607/- for the assessment year 2009-2010 ; (ii) that a suitable writ, order or direction be issued modifying/quashing the order dated 8.4.2013 in so far as it refuses the refund of Rs. 10,92,26,607/- for the assessment year 2009-2010; (iii) that any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper be also awarded to the petitioner; (iv) that costs be awarded to the petitioner throughout." 3. Learned counsel for the petitioner has submitted that the petitioner company has installed the manufacturing facility in the plant to manufacture four stroke motorcycle under the new foreign collaboration entered after 1.12.1994 which has been approved by the Government of India for which an additional investment of Rs. 130.07 crores have been made. According to the petitioner the Eligibility Certificate has been issued under Section 4-A of the U.P. Trade Tax Act by the competent authority and the fixed capital investment of the petitioner company/unit was mentioned in the Eligibility Certificate being Rs. 96,41,67,155/- whereas it should have been Rs. 130,07,57,450/-. Learned Counsel has submitted that there was no reason mentioned for reduction of the fixed capital investment. The said Eligibility Certificate has been treated as partial Eligibility Certificate and, therefore, the petitioner has agitated the matter upto the stage of Trade Tax Tribunal with regard to issue fixed capital investment as well as its production capacity which was substantially increased. Learned counsel for the petitioner has submitted that Section 42 of the U.P. VAT Act after its amendment provided under Section 42(3) for filing of an application for Certificate of Entitlement and the Commissioner of Commercial Tax, U.P. Lucknow was required to issue a Certificate of Entitlement in accordance with Section 42(3) of U.P. VAT Act. Learned counsel for the petitioner has submitted that Section 42 of the U.P. VAT Act after its amendment provided under Section 42(3) for filing of an application for Certificate of Entitlement and the Commissioner of Commercial Tax, U.P. Lucknow was required to issue a Certificate of Entitlement in accordance with Section 42(3) of U.P. VAT Act. He has further submitted that as per the requirement of Section 40(6) of the U.P. VAT Act the petitioner applied for grant of Certificate of Entitlement and the same was granted by Certificate of Entitlement No. 318 dated 10.12.2012. Learned counsel for the petitioner has submitted that the Commissioner of Commercial Tax by his order dated 10th February, 2016 has amended the Certificate of Entitlement by which the petitioner became entitled for enhanced refund of Rs. 37,56,96,709/- in place of Rs. 20,68,26,078/- as mentioned in column no. 6 of the Certificate of Entitlement. Learned counsel for the petitioner has further submitted that after passing of the order dated 10th February, 2016 by the Commissioner of Commercial Tax, Lucknow, the petitioner became entitled to enhanced refund of Rs. 16,88,70,631/- within the period mentioned in the earlier Certificate of Entitlement granted to the petitioner on 10th February, 2012. In other words, the petitioner became entitled for refund of the amount for the period from 1st January, 2008 to 12th February, 2013. 4. The submission of the counsel for the petitioner, therefore, is that from the perusal of the Certificate of Entitlement it is clear that the petitioner is entitled for grant of exemption by way of refund to the extent of Rs. 20,68,26,000.78 for the period with effect from 1.1.2008 to 12.2.2013. 5. Learned counsel for the petitioner has placed the relevant provisions of U.P. VAT Act being Section 42(4), Section 42(4A)m, Section 42(5) and Section 42(7), which are reproduced herein below : "42. 20,68,26,000.78 for the period with effect from 1.1.2008 to 12.2.2013. 5. Learned counsel for the petitioner has placed the relevant provisions of U.P. VAT Act being Section 42(4), Section 42(4A)m, Section 42(5) and Section 42(7), which are reproduced herein below : "42. Treatment of industrial units availing exemption or reduction in the rate of tax under erstwhile Act,- (4) The industrial unit availing benefit of exemption from, or reduction in the rate of tax on the turnover of sales before the date of commencement of this Act or an industrial unit which is granted the facility of exemption from, or reduction in the rate of, tax on or after such commencement, on the turnover of sales under the erstwhile Act or the Central Sales Tax Act, 1956, shall be entitled for exemption by way of refund of net tax paid along with the return of tax period in prescribed manner and on fulfilling the conditions that,- (a) the unit shall hold valid registration certificate issued under this Act or under the Central Sales Tax Act, 1956, (b) the unit shall have a valid Certificate of Entitlement issued by the Commissioner, (c) the amount of refund shall not be more than an amount equal to net tax paid for relevant tax period, (d) the net tax payable has been deposited along with return of tax period in prescribed manner, (e) the refund shall be subject to the provisions of section 40 except that the amount shall not be adjusted against the admitted tax liability, (f) the facility of refund shall cease on the day when the amount or the period mentioned in the Certificate of Entitlement, whichever is earlier, (g) the tax payable on the turnover of sales of goods mentioned in the Certificate of Entitlement and which is manufactured in the industrial unit shall be deducted from the total amount mentioned or described in the Certificate of Entitlement, (h) the industrial unit has not misused the facility of exemption from or reduction in the rate of tax in any manner. Explanation: The expression 'net amount of tax payable' means - (i) the differential amount of tax payable under this Act on the sale of taxable goods other than non-vat goods, manufactured in the unit and input tax credit available to the extent or proportionate to taxable goods other than non-vat goods sold, in case of an industrial unit availing facility of exemption from tax under the erstwhile Act and the Central Sales Tax Act, 1956, (ii) the partial amount of net tax computed under clause (i) above, in proportion to the rate of tax available for exemption to the rate of tax payable under the erstwhile Act, in case of an industrial unit availing benefit of reduction in the rate of tax. (4-A) The industrial unit availing or granted benefit of exemption from, tax on the turnover of purchase before the date of commencement of this Act shall be entitled for exemption by way of refund of Earned Input Tax Credit computed on the basis of data declared in the documents submitted along with the return of tax period in prescribed manner and on fulfilling the following conditions that,- (a) the industrial unit shall hold valid Certificate of Entitlement issued by the Commissioner as provided under sub-section (3); (b) the amount of refund shall not be more than an amount equal to input tax credit earned during relevant tax period, (c) the refund shall be subject to the provisions of section 40 except that the amount shall not be adjusted against the admitted tax liability, (d) the facility of refund shall cease on the day when the amount or the period mentioned in the Certificate of Entitlement, whichever is earlier, (e) the facility of exemption from tax by way of refund shall be available only in respect of raw material, processing material, consumable stores, fuel other than petrol and diesel, lubricant, required for use in manufacture of goods or in the packing of manufactured goods mentioned or described in the Certificate of Entitlement, (f) the amount of exemption from tax by way of refund on the turnover of purchase of goods, shall be deducted from the total amount mentioned or described in the Certificate of Entitlement. (g) the industrial unit has not misused the facility of exemption from tax in any manner. (g) the industrial unit has not misused the facility of exemption from tax in any manner. Explanation: "Earned Input Tax Credit" means the amount of admissible input tax credit computed on the basis of data declared in the returns of tax period where industrial unit was availing benefit of exemption under the erstwhile Act. (5)(a) The amount found refundable shall be refunded within a period of 30 days from the last date of the month in which dealer files the return of relevant tax period along with the proof of deposit of net tax payable. (b) The amount of refund shall be made in such manner as may be prescribed. (c) The industrial unit failing to deposit the net tax admittedly payable within prescribed time and in prescribed manner or deposits it after due date, the amount of interest leviable and penalty imposed, if any, shall be adjusted and only the balance amount shall be refunded. (7) If any amount is found refundable and is not refunded within the prescribed time, the industrial unit shall be entitled to simple interest at the rate of twelve percent per annum from the last date prescribed for refund. The amount of interest shall be refunded in such manner as may be prescribed." 6. Learned counsel for the petitioner has submitted that in view of the provisions of Section 42(4A) of the Act the petitioner is entitled for exemption by way of refund of Earned Input Tax Credit on the basis of documents allegedly submitted by the petitioner along with its return. 7. From the perusal of the pleadings of the instant writ petition, we noticed that though the Commissioner of Commercial Tax has passed an order dated 10.2.2016, by which order the Commissioner has amended his earlier order dated 10.12.2012, by which the Certificate of Entitlement has been issued in favour of the petitioner company showing the refund of Rs. 20,68,26,078-00 (twenty crores, sixty eight lacs, twenty six thousand and seventy eight rupees) and the amended Certificate of Entitlement issued by the Commissioner dated 10.2.2016 indicates the figure in rupees being Rs. 37,56,96,709/- by increasing the amount from Rs. 20,68,27,078/- to Rs. 37,56,96,709/- which is an increase of Rs. 16,88,70,631/-. 8. 20,68,26,078-00 (twenty crores, sixty eight lacs, twenty six thousand and seventy eight rupees) and the amended Certificate of Entitlement issued by the Commissioner dated 10.2.2016 indicates the figure in rupees being Rs. 37,56,96,709/- by increasing the amount from Rs. 20,68,27,078/- to Rs. 37,56,96,709/- which is an increase of Rs. 16,88,70,631/-. 8. In the assessment order which is passed on 8.4.2013 there is no discussion about Certificate of Entitlement by the Assessing Authority, of which the petitioner is affected and has filed the present writ petition. 9. We have heard Shri Piyush Agrawal, learned counsel for the petitioner and Shri C.B. Tripathi, learned Special Counsel appearing for the respondents. 10. With the consent of the learned counsel for the parties the writ petition is finally disposed of by directing the petitioner to approach the appellate authority under Section 55 of the U.P. VAT Act or any other provision of law, which entitled the petitioner to approach the appellate authority to raise its grievance with regard to claim passed by the amended order by the Commissioner of Commercial Tax dated 10.2.2016 allegedly entitling the petitioner company for the refund, so as claimed. 11. Learned counsel for the petitioner has submitted that the period of filing the appeal has already expired, the appellate authority will/may not entertain the appeal on the ground of delay. 12. We find force in the submission of learned counsel and since this writ petition has been entertained in the year 2013 on 27.5.2013 and was pending before this Court, there would be delay caused to approach the appellate authority on the part of the petitioner. 13. In view of the aforesaid facts, we direct the appellate authority to entertain the appeal, if the same is filed within a period of three weeks from today, without going into the question of limitation. 14. The office is directed to issue a certified copy of this order to the petitioner on payment of usual charges by 6th of November, 2017.