WP 1735-2013.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY WRIT PETITION NO. 1735 OF 2013 M/s Vaibhav Steel Corporation V/s The Additional Commissioner of Sales Tax (VAT) and Ors.

Mr. C.B. Thakkar i/b Mr. M.M. Vaidya for the petitioner. Mr. B.B. Sharma, A.G.P . for the respondents.

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DATE

CORAM : MOHIT S. SHAH, CJ M.S. SANKLECHA, J. : 26 NOVEMBER 2013

Rule, returnable forthwith. At the request of the counsel, petition taken up for final disposal.

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2.

By this petition under Article 226 of the Constitution of

India, the petitioner has prayed for a writ of mandamus to direct the respondents to accept the petitioner's application in Form 501 which the petitioner had sought to file within the limitation period of 3 years. 3. The relevant year is the Financial Year 2009-10. The

petitioner filed its return for this year on 22 April 2010 entitling the petitioner to refund of Rs.33,38,715/-. No assessment order has yet been passed. However, on or around 20 August 2012, the petitioner in terms of section 51 of the Maharashtra Value Added Tax Act, 2002 (MVAT Act, 2002) filed an application for refund of Rs.33,38,715/abs 1 of 7

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.. Petitioner

.. Respondents

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ORDINARY ORIGINAL CIVIL JURISDICTION

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electronically but the system would not accept it. letters dated 21 August 2012, the

Thereafter by

communication to the Joint Commissioner of Sales Tax and the refund application in Form 501 for the F.Y. 2009-10. However, by

communication communication dated 20 September 2012, the Additional Commissioner of Sales Tax informed the petitioner that the refund application in Form 501 was to be filed by Electronic before 31 December 2011, which was extended upto 7 January 2012 and since the petitioner had not filed the same within the prescribed considered. By similar communication dated 3 September 2012, the Joint Commissioner of Sales Tax, Refund also informed the petitioner that as the prescribed time limit to file the refund application for the period 2009-10 was already over, the petitioner's request for the same could not be considered. refund application was thus not accepted. 4. The learned counsel for the petitioner submits that for The petitioner's time, the petitioner's application could not be accepted or System only within the prescribed time for the period 2009-10, i.e.

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the relevant year 2009-10, the period of limitation for filing refund application under section 51(7) of the MVAT Act, 2002 was 3 years and accordingly the said 3 years period was to expire on 31 March 2013. However, well before expiry of the said limitation period, the petitioner sought to submit the application for refund in Form 501 on 20 August 2012, but the said application was not accepted on the ground of limitation.
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Additional Commissioner of Sales Tax seeking acceptance of its

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petitioner

addressed

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5.

It appears that by Maharashtra Act No. XV of 2011

published in the Government Gazette on 21 April 2011, amendments amendment is to section 51 of the MVAT Act, 2002. under:

amendment made by Maharashtra Act No.XV of 2011 reads as

Amendment of section 51 of Mah. Act IX of 2005: In (4) in sub-section (7), for the words three years

the words eighteen months shall be substituted. 6. Learned counsel for the petitioner submits that the Hence the

amendment is prospective and not retrospective.

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limitation period of three years, which was available to the petitioner for making a refund application for the year 2009-10 upto 31 March 2013, has not been curtailed by the Legislature. The period of limitation would be 18 months for the relevant years after 21 April 2011. This on the ground that a right to refund of excess tax is a substantive right and not a matter of procedure, which is subject to change in period of limitation for refund. In support reliance is placed upon the decision of the Supreme Court in Hoosein Kasam Dada (India) Ltd. vs. The State of M.P . & Ors., 1953 IV Sales Tax cases 114 and on a decision of the Division Bench of this Court in Universal Drinks Pvt. Ltd., Nagpur vs. Union of India, 1984 (18) ELT 207 (Bom.).

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section 51 of the Value Added Tax Act:

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were made to certain provisions of the MVAT Act, 2002. One of the

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The said
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respondents has opposed the petition and submitted that in view of

Commissioner of Sales Tax, Maharashtra State had issued Trade Circular No. 15T of 2011 dated 2 November 2011. The said circular reads as under: The due date for submission of refund

2009-10 was 30.09.2011.

received for extension of this date. Considering the submission of refund application in form 501 for the year 2009-10 has been extended upto 31 st December 2013. 2. 3.

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shall be provided. This circular cannot be made use of for the legal interpretation of provisions of law, as it is clarificatory in nature. If any member of the trade has any doubt, he may refer the matter to this office for further clarification. 4. You are requested to bring the contents of this circular to the notice of all the members of your association.

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difficulties faced by the Trade, the due date for

Needless to state that no further extension

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application u/s 51 of MVAT Act, 2002 for the period Representations were

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the amendment to section 51(7) of the MVAT Act, 2002, the

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7.

On the other hand, the learned counsel for the

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8.

It is submitted on behalf of the revenue that the above

to have submitted its application for refund by 31 December 2011 or

the learned counsel submits that the petition ought to be dismissed as this Court has upheld the validity of section 51(7) of the MVAT Act, 2002 in Mahalaxmi Cotton, Ginning Pressing & Oil Industries vs. State of Maharashtra (Writ Petition No. 33 of 2012 decided on 11 May Court in Union of India vs. Kirloskar Pneumatic, (1996) 4 SCC 453 , wherein it was held that the Court cannot direct the authorities extend the period provided under the statute. 9. Having heard the learned counsel for the parties, we find under the Act to ignore the statutory provision of limitation and 2012). Further reliance is placed upon the decision of the Supreme

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considerable substance in the submission made by the learned counsel for the petitioner that the matter is squarely covered by the decision of this Court in Universal Drinks Pvt. Ltd. vs. Union of India (supra). In the said decision, this Court dealt with the similar question in the context of the Central Excise Rules, particularly Rule 11 thereof. The period of limitation there was reduced from one year to 6 months, w.e.f. from 6 August 1977. This Court held that right to claim refund is a vested right and that even if it is held to be an existing right and not vested right, such a right cannot be taken away unless it is taken away by a statutory enactment expressly or by necessary implication. An amendment reducing the period of

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at least upto 7 January 2012 which was the extended date. Further

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circular was given wide publicity and, therefore, the petitioner ought

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limitation takes effect prospectively unless it has retrospective effect amendment will apply to cases in which right to claim refund arose to claim refund has arisen prior to the date of amendment. In fact, this Court in Electrofronts vs. Union of India, 2003 (162) ELT 1182 has observed: Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantial rights.

petitioner sought to submit the application on 20 August 2012 claiming refund for the year 2009-10, the three years period of

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limitation had not yet expired as the same was to expire on 31 March 2013. In this view of the matter, the right which was vested in the petitioner or at least which was an existing right on the date of amendment on 21 April 2011, could not have been taken away without express terms or necessary intendment in the Amending Act. Having gone through the provisions of the Amending Act, as quoted hereinabove, we find that the amended section 51(7) of MVAT Act, 2002 reducing the period of limitation from 3 years to 18 months is clearly prospective and not retrospective. Hence, the petitioner was entitled to claim refund within the limitation period of 3 years which was to expire on 31 March 2013. When the refund application was made on 20 August 2012, the respondent authority clearly erred in
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10.

In the facts of the instant case, it is clear that when the

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after the amendment and it cannot govern the cases where the right

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by express terms or by necessary intendment. Accordingly such an

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law in rejecting the refund application on the ground that it was

Pressing & Oil Industries (supra) and of the Apex Court in Kirloskar Pneumatic (supra) have no application to the present facts. This is so as neither the validity of section 51 of the MVAT Act, 2002 is challenged before us nor are we directing the authority under the we see no reason not to allow the petition. 12. MVAT Act, 2002 to ignore the statutory period of limitation. Thus

raise other contentions, it is not necessary to deal with the other contentions as the petitioner is entitled to succeed on the above ground. 13.

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In view of the above, the petition is allowed and the Rule The respondents are directed to consider the

is made absolute.

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petitioner's refund application for the year 2009-10 by treating it as having been made within the period of limitation. CHIEF JUSTICE

Though the learned counsel for the petitioner sought to

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11.

The decisions of this Court in Mahalaxmi Cotton, Ginning

M.S. SANKLECHA, J.

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time barred.