Answer : Yes.

The appellant in this case had filed original returns under the MVAT Act and Central Act within the time prescribed for filing the returns. The appellant had claimed excess set off in the original MVAT returns and consequential adjustment in the CST returns. This fact came to the knowledge of the appellant only at the end of the year — while filing the March 2006 return. The appellant revised the returns under both the Acts as provided in Section 20(4) and paid the dues resulting from the excess claim. The Sales Tax Officer, Returns Branch levied interest under section 30(2) read with Section 9(2) on the differential dues as per the revised return from the due date of original return to the date of revised return. It was challenged before the Tribunal that as per sub-section (4) of Section 20 of the MVAT Act a dealer is allowed to file revised return at any time before a notice for assessment is served on him in respect of the period covered by the return or before the expiry of a period of nine months from the end of the year containing the period to which the return relates, whichever is earlier. The contention of the appellant before the Tribunal was that no notice of assessment was received in respect of the months for which revised returns are filed. Section 30(2) of the MVAT provides for levy of interest if a registered dealer fails to pay the tax within the prescribed time. In the case before the Tribunal it was argued that the revised return was filed within the time prescribed under section 20(4) of the MVAT Act and hence no interest could be levied.

The Tribunal held that in view of proviso to sub-section (2) of Section 30 of the MVAT Act which expressly provided that where a dealer has furnished a fresh return or revised return and the amount of tax payable as per the fresh return or revised return exceeds the amount of tax payable as per the original return, then for the purpose of the said sub-section a dealer shall be deemed to have been required to pay the excess amount of tax at the time he was required to pay the tax as per the original return and accordingly he shall be liable to pay interest under the sub-section on the said excess amount of tax. It was therefore held that in view of the unambiguous deeming provision the Sales Tax Officer, Return Division had correctly levied the interest.

(Hemsons Trading Enterprises (P) Limited vs. The State of Maharashtra — Vat Second Appeal Nos. 9 to 17 of 2007 dated 20.12.2007. The judgment is delivered at the Ist Bench of the Maharashtra Sales Tax Tribunal by the Hon’ble Member Shri D. H. Sali. The appellant was represented by Mr. N. V. Tapare, Advocate.)

Answer : No.

The facts relevant to the issue are as under : One Mr. Gajjulal Ratnalal Jaiswal was carrying on the business under the name and style of M/s. Deshi Daru Dukan under CL III Licence at Chowka, Dist: Aurangabad. The appellant was registered under the Maharashtra Value Added Tax Act 2002. Mr. Jaiswal expired on 21.12.2005. As per the State Excise Act, the Excise department sealed the shop and stopped the business on 21.12.2005. The excise department gave permission to start the business to Smt. Tarabai Gajjulal Jaiswal, being the legal heir of Mr. Gajjulal Ratanlal Jaiswal on 13.2.2006. Smt. Tarabai Gajjulal Jaiswal started the business from 15.2.2006 and applied for Registration Certificate under the MVAT Act on 14.03.2006 i.e within 30 days from the date of starting of business. The Registration authority granted the registration certificate and made it effective from the date of application i.e. 14.03.2006 and not 15.2.2006.

The appellant contended before the Tribunal that as per section 44(1) of the MVAT Act and Rule 8(D) of the Rules the successor should apply for Registration within 60 days from the date of death of the proprietor. The appellant felt that the period of limitation would run from 13.2.2006 i.e. the date of permission of the State Excise Department. According to the appellant she has not carried on any business during 21.12.2005 to 14.2.2006. On the basis of above facts it was argued that the Certificate should be made effective from 15.02.2006 i.e. the date on which the proprietress started the business.

The department submitted that as the appellant has failed to give the application within 60 days from the date of death of the proprietor as contemplated under Rule 9(2)(d)(i) of the MVAT Rules the date of registration would be effective from the date of application.

The Tribunal after going through Sections 3,16, 18 and 4 of the MVAT Act and Rules 8 and 9 of the MVAT Rules observed that in case of succession of business after death of the proprietor, the Registration Certificate would be effective from the date of succession, if the application is made within sixty days of such succession. The Tribunal was of the opinion that the ‘succession’ of business may take place on any date on or after the death but succession of business will not automatically follow the ‘death’, unless there is an intention of the legal heir to continue the business of the deceased. The Tribunal therefore felt that ‘succession’ may not necessarily take place on the date of ‘death’. It therefore held that as per the provisions the application for Registration Certificate has to be made within sixty days of ‘succession’ and not of ‘death’.

The Tribunal further observed that in the particular facts of the present case, the appellant was not in a position to continue the said business of country liquor without licence granted by the excise authorities and hence there was no propriety to make an application for succession of business under Rule 9(2)(d)(i) of the MVAT Rules. The Tribunal therefore held that the succession of business can be said to have taken place on 13.2.2006 and not from the date of death on 21.12.2005. The application for registration Certificate was therefore required to be made within sixty days from 13.2.2006 which the appellant had complied and therefore the certificate should be made effective from 13.02.2006. The Tribunal also observed that the ruling was of course subject to the condition that no business of purchase/sales had taken place during the interim period 21.12.2005 to 13.2.2006.

(Desi Daru Dukan vs. The State of Maharashtra — Vat Second Appeal No. 2 of 2007 dated 12.12.2007. The judgment is delivered at the Ist Bench of the Maharashtra Sales Tax Tribunal by the Hon’ble President Mr. G. D. Parekh. The appellant was represented by Mr. L. R. Shinde, Sales Tax Practitioner.)

Answer : No.

The relevant facts are as under :

M/s. Seagram India (P) Ltd., a manufacturer of Indian Made Foreign Liquor effected sales under section 5(1) of the Central Sales Tax Act 1956. The period involved in the present Vat Second Appeal is 1.03.2006 to 31.03.2006. The appellant became entitled for a refund of Rs.33,00,734/- during the period in question. The appellant filed Form No.501 for refund of the said amount and complied all requirements as per the instructions of the Commissioner of Sales Tax. The assessing authority visited the place of business for the purpose of refund audit on 5.8.2006 and audited the accounts. The Deputy Commissioner of Sales Tax on 12.2.2007 issued 60% of the total refund. Appeal filed against the aforesaid order before the Joint Commissioner of Sales Tax was held as not maintainable as the impugned order was a provisional or interim order as contemplated under section 85(2)(i) of the MVAT Act.

The contention of the appellant before the Tribunal was that the impugned order was passed on 12.2.2007 i.e. after the amendment of the provisions of law. The order did not indicate that it was a provisional order. The authorities have audited the books and determined the full amount as refundable. No Bank guarantee was needed as full verification has taken place. The appellant submitted that the order passed in Form 502 is a final order and the appellate authority had erred in interpreting the impugned order as not appealable in view of section 85(2)(i) of the MVAT Act. On merits also the appellant submitted that it certainly has affected the dealer. The order was passed behind the back of the appellant. No reasons were adduced for withholding 40% of refund. The department tried to justify the order on the basis of Trade Circular dated 12.1.2007.

The Tribunal discussed sections 50 to 54 of MVAT Act regarding the procedure, time limit etc for grant of refund in great detail. The Tribunal observed that ‘provisional refunds’ were removed and substituted with effect from 20.06.2006 by new provisions entitled ‘Grant of Refunds’. It therefore held that when the ‘provisional Refunds’ have been removed and replaced by the new provisions, the order in Form 502 is a final order. The Tribunal also reproduced the order passed by the authority and felt that by no stretch of imagination it can be said to be an interim order as contemplated by clause 85(2)(i) of MVAT Act. The Tribunal also observed that there is no provision for curtailment of refund. The Tribunal observed that the restrictions put by the learned Commissioner were not in consonance with the provisions of the MVAT Act. The Tribunal set aside the order passed by the Joint Commissioner and held that an appeal against the impugned order of grant of short refund was maintainable and remanded the matter for fresh adjudication.

(M/s. Seagram India Limited vs. The State of Maharashtra — Vat Second Appeal No. 8 of 2007 dated 20.12.2007. The judgment is delivered at the Ist Bench of the Maharashtra Sales Tax Tribunal by the Hon’ble President Mr. G. D. Parekh. The appellant was represented by Mr. A. B. Ghanekar, Sales Tax Practitioner.)