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Judgment
Heard learned counsel for the parties.
Both the writ petition relate to claim of refund. In W.P.(T) No. 257 of 2021 petitioner is seeking a direction upon the respondents to immediately refund the amount of Rs. 4,26,173/- with interest @ 18% p.a. from the date of assessment order dated 07.07.2006 (Annexure-2), claiming to have filed an application for refund on 09.11.2006 (Annexure-4). In W.P.(T) No. 4409 of 2020 petitioner has sought refund of an amount of Rs. 9,69,405/- with interest @ 18% p.a. from the date of assessment order dated 29.04.2008(Annexure-2). The application for refund was made on 15.07.2008 (Annexure-5). Both the assessment order has been passed by the Deputy Commissioner of Commercial Taxes, Palamau Circle, Daltonganj.
Learned counsel for the petitioner submits that the refund applications have been kept pending till date despite reminders made by the petitioner, such as Annexure-7,8 and 12 series in W.P.(T) No. 257 of 2021 dated 15.07.2008, 06.03.2009 and 14.05.2019 and in W.P.(T) No. 4409 of 2020 such reminders were sent on 06.03.2009(annexure-6) and 14.05.2019(annexure-9). Learned counsel for the petitioner further submits that in W.P.(T) No. 257 of 2021, the respondent Department was undertaking inquiries on the claim of refund as would appear from the letter dated 15.01.2015 issued by the respondent Department and the reply by the Executive Engineer, R.E.O Works Division, Garhwa and Daltangonj dated 7.02.2015 and 29.06.2009 certifying that the respective TDS amount were deducted from the books of the petitioner and accordingly deposited by way of book adjustment with the Accountant General, Jharkhand, Ranchi. In W.P.(T) No. 4409 of 2020 also similar inquiries were being made as per letter dated 15.01.2015 issued by the respondent no.2 and further letter dated 07.02.2015 issued by the Executive Engineer, R.C.D, Road Division, Garhwa and letter dated 14.02.2015 issued by the Executive Engineer, R.C.D., Road Division Latehar to the respondent department, which certify that respective TDS amounts were deducted from the books of petitioner and deposited by way of book adjustment with the Accountant General, Jharkhand. However, instead of making the refund, respondents sat tight over the matter compelling the petitioner to approach this Court in the present writ petitions. Therefore, there is no deliberate delay or latches on the part of the petitioner in filing the refund application and pursuing his claim. The respondents cannot keep the refund application pending and still oppose the relief prayed for in the present writ petitions.
Learned counsel for the respondents Mr. P.A.S. Pati, G.A.-II and Mr. Salona Mittal, A.C. to G.A.-I in the respective writ petitions have taken common grounds in opposition to the prayer. Counter affidavit have been filed in both writ petitions. Their objections are as under:
That the writ petitions are barred by huge delay and latches of about 15 years in the first writ petition and 12 years in the second writ petition for which no explanation, whatsoever has been given. Learned counsel for the respondents relying upon the judgment of the Apex Court in the case of Union of India Vrs. VKC Footsteps India Private Ltd. reported in 2021 SCC Online SC 706 submitted that refund of taxes is neither a fundamental right nor a constitutional right but always a matter of statutory prescription, which can be regulated by the statute, subject to conditions and limitations. Petitioner cannot claim it as a matter of right after such a huge delay.
No excess demand was raised in favour of the petitioner in Form-XV after passing of the assessment order for the petitioner to claim a refund to the prescribed authority in terms of Section 42 in the prescribed Form-XX. If the petitioner was aggrieved by the assessment order not determining the excess tax paid, it was open for the petitioner to go in appeal, which he failed to do.
The application in question has not been made before the prescribed authority, which is the Joint Commissioner of Commercial Taxes in term of Rule 42 (1) (c) since the amount of refund exceeded Rs.20,000/-.
It is further submitted that mere filing of representation does not keep the cause of action alive. In this regard, learned counsel for the respondents have relied upon a recent judgment of the Apex Court in the case of Surjeet Singh Sahni Vrs. State of U.P. and others reported in 2022 SCC Online SC 249, para 5 thereof.
Based on these objections, learned counsel for the respondents have submitted that the writ petitions are fit to be dismissed at the threshold without giving any further opportunity to the petitioner to pursue his representation as filing of such representation cannot give rise to a fresh cause of action, once the original cause of action is stale on account of gross delay and latches.
We have considered the submissions of learned counsel for the parties and taken note of the relevant materials relied from the record. We have also gone through the decisions cited by learned counsel for the respondents. It is trite law that claim for refund is a statutory right prescribed with limitations and conditions laid down under the statute. In the present case, though such application was made before the respondents but not before the prescribed authority in terms of the Act and long back in the year 2006 and 2008 respectively. The mere delay in deciding the refund application did not make the cause of action alive for such a long period to seek remedy under Article 226 of the Constitution of India. Mere filing of representation also does not extend the period of limitation as the aggrieved person has to approach the Court expeditiously and within reasonable time.
The Apex Court in the case of Surjeet Singh Sahni (supra) has at para 5 held that if it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and /or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and latches. No explanation worth acceptance has been given by the petitioner to justify the delay of 15 and 12 years in the respective cases for approaching this Court. Both the writ petition have been filed in January 2021 and December 2020 respectively.
As such, this Court is not inclined to entertain these writ petitions on the ground of delay and latches. The writ petitions are accordingly dismissed.