M/s. Calcom Vision Limited, Mohali v. State of Punjab & Ors.

CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE RAKESH KUMAR GARG --- Present: Mr. Avneesh Jhingan, Advocate, for the petitioner. Ms. Sudeepti Sharma, AAG, Punjab. .. SATISH KUMAR MITTAL, J. (Oral) The petitioner, who is a registered dealer under the Punjab General Sales Tax Act, 1948 and running the business at Mohali, has filed this petition for directing the respondents to refund the amount of Rs.3,19,523/- for the Assessment Year 2000-01 to the petitioner along with interest, which was paid by it under the Punjab Social Securities Act,

2000. It is the case of the petitioner that the said Act was declared ultra vires by this Court in the case of M/s. Pioneer Agro Extracts Limited and others v. State of Punjab and others, (2002) 125-STC 532 and against the said decision, the appeal is pending in the Hon'ble Supreme Court of India, but no stay has been granted. it is further the case of the petitioner that vide assessment order Annexure P-1 for the year 2000-01, the CWP No.16373 of 2007 -2- Assessing Authority had directed to refund the amount of Rs.3,19,523/-, which was collected under the said Securities Act. It is further the case of the petitioner that in view of the said direction, subsequently the petitioner made an application (Annexure P-3) before the Excise and Taxation Officer, Mohali along with copy of the assessment order. Copy of the said application was also sent to the Secretary, Department of Social Welfare of Children and Women, Punjab. In spite of that application dated

27.12.2004, till date the payment of the refund of the said amount has not been made to the petitioner. Learned counsel for the petitioner states that the petitioner is entitled to receive that refund on furnishing proof by him that the petitioner has not charged the said cess from the customer and in this regard, learned counsel states that a specific affidavit (copy Annexure P- 10) was submitted by the party on 13.7.2005. In spite of that affidavit, the refund has not been made till date. Learned counsel for the petitioner states that day before yesterday, the petitioner had been called along with record to show that the petitioner-firm has not charged the said cess from the customer for the assessment year 2000-01. In view of the above and after hearing learned counsel for the parties, we dispose of this writ petition with a direction to respondent No.4 to consider and decide the matter on the basis of the affidavit as well as the material shown by the petitioner that the petitioner firm has not charged the said amount from the customer, within one month. If the said officer comes to the conclusion that the petitioner has not charged the said cess from the customer, then respondent No.2 is directed to refund the said amount to the petitioner within a further period of two months along CWP No.16373 of 2007 -3- with interest as per law. In case respondent No.4 decides the issue against the petitioner, it will be open for the petitioner to challenge the same in accordance with law. (SATISH KUMAR MITTAL) JUDGE January 11, 2008 (RAKESH KUMAR GARG) JUDGE