(From previous issue) :
11. From the judgment and order of the High Court Division, it appears that it took notice of the facts that the writ-petitioner first made an application on 20-8-1998 for refund of Taka 3,95,98,579 claiming stoppage of production and closure of the mills since 12-5-1998. Thereafter, the mills again commenced production and finally stopped production since 31st August, 2000. On 29-11-2001, the writ-petitioner made an application to the Superintendent for cancellation of VAT registration after closure of the mills since 4-11-1999. On 10-12-2001, the writ-petitioner again wrote to the Superintendent for cancellation of VAT registration, Upon such applications, the writ-petitioner first received a response by way of a show cause notice dated 23-4-2003 issued by the Commissioner claiming that there was no, balance in favour of the writ-petitioner, rather there were arrears of Taka 3,90,44,258. The writ-petitioner by its reply dated 13-5-2003 controverter the claims of the ‘Commissioner and explained its position. There was an enquiry by a four member committee appointed by the VAT authority and said committee found a balance of Taka 2,86,86,793 in the current account and after adjustment with the arrears of Taka 57,66,227, the writ-petitioner was found entitled to the refund of Taka 2,29,20,566. After receipt of the report, the Commissioner heard the writ-petitioner. He however, found the balance, of Taka 3,28,22,748 in the current account in favour of the writ-petitioner. He also found arrears of Taka 57,66,227, rebate of Taka 5,04,064 taken on the stock while tariff was in force and rebate of Taka 2,93,28,611 taken by showing excess use of Zinc Ingot, in total non-refundable rebate of Taka 2,93,28,611. By adjusting the amount with said balance of Taka 3,28,22,748, the Commissioner found that Taka 34,94,137 could be refundable to the writ-petitioner …
12. From the order of the Appellate Tribunal, it appears that it considered everything and also gave finding in favour of the writ-petitioner as to its entitlement to the refund of VAT, but it refused to give the relief to the writ-petitioner and even set-aside the order of the Commissioner which allowed refund of Taka 34,94,137 on the view that VAT registration of the writ-petitioner was not cancelled under Section 19(1) of the VAT Act and therefore, there was chance of commencement of production.
The Appellate Tribunal was of the further view that the prayer for refund was premature in view of the provisions of rule 34Ka(4) of the VAT Rules, 1991, the writ-petitioner would be entitled to the refund of the VAT after cancellation of its registration under sub-section (1) of section 19 of the VAT Act. In repealing the said view of the Appellate Tribunal, the High Court Division held that under sub-section (1) of Section 19 of the VAT Act if a-.registered person refrains from production or supply of taxable goods, he shall inform such stoppage to the concerned authority within 14 (fourteen) days and if· the concerned authority is satisfied that there was no unsettled liability then he shall cancel the registration, under sub-section (3) thereof and after such cancellation of the registration, such person becomes entitled to get refund of any balance in, the Current account. The writ-petitioner made the prayers for cancellation of the registration and refund long back, but no steps were taken by the VAT authority for cancellation of registration. In the aforesaid facts and circumstances, registration of the writ-petitioner shall stand cancelled and after the cancellation of registration, the petitioner shall become entitled to refund of the balance in the current account.
The High Court Division further held that the VAT authority is authorized to cancel the registration, but the failure of the VAT authority in cancelling the registration, the writ-petitioner could not be held responsible and therefore, the appeal of the writ-petitioner could not be rejected for want of cancellation of registration under rule 34Ka(4) of the VAT Rules, 1991.
The High Court Division was also of the view that rule 34Ka(4) of the VAT Rules “appears to be relevant to a case where refund was sought for under Section 67 of the VAT Act.”
13. We have considered the facts as noted by the High Court Division, particularly, the fact that the application for refund of excess VAT was filed by the writ-petitioner as back as on 20-8-1998 claiming stoppage of production and closure of the mills since 12-5-1998 and the further fact that after the mills had commenced its production again, finally it stopped the production since 31st August, 2000 and then again, on 29-11-2001 made an application to the Superintendent for cancellation of the VAT registration after closure of the mills since 4-1-1999.
Then again, on 10-12-2001, the writ-petitioner wrote to the Superintendent for cancellation of registration, but the respondents did not take any action on the applications filed by the writ-petitioner. The High Court Division specifically noted in its judgment that” At the time when we hear the matter, there is no dispute with regard to the facts that production in the mills was stopped since 31 August, 2000 and the mills were closed down and there was no stock for sale or disposal since then. The VAT authority has not said that there may be commencement of production in the mill in the future. In its report dated 29-3-2001, the four member committee found the balance in the current account stood at Taka 2,29,20,566 while the Commissioner found the balance at Taka 2,28,22,748 in favour of the petitioner.”
14. There is no dispute that the writ-petitioner made prayers to the concerned respondent under Section 19(1) of the VAT Act for refund upon cancellation of the VAT registration. In the leave petition, it has not been claimed by the Commissioner that the writ-petitioner never commenced its production in the mills after stoppage finally since 31st August, 2000 and that the mills were not closed down and there was stock for sale or disposal since then as specifically observed by the High Court Division.
15. In view of the above, we find no illegality with the High Court Division in making the Rule absolute in the terms as quoted hereinbefore and therefore, no interference is called for with the impugned judgment and order. However, we endorse the observations of the High Court Division that “It may however be mentioned that if the VAT authority may have any justifiable ‘demand against the petitioner, they can raise and get adjudicated the same in accordance with the provisions of the VAT Act. But they cannot adjust any disputed amount, which was never adjudicated under Section 55 of the VAT Act.” We also put our disapproval of the inaction of the concerned VAT authority on record in sitting over the applications filed by the writ-petitioner for cancellation of VAT registration and for fund of their due. It needs to be mentioned that more than 6(six years) 4(four) months elapsed from 29-11-2001 (on which date the writ-petitioner filed the application to the Superintendent for cancellation of VAT registration after closure of the mills finally since 4-1-11999) till the pronouncement of the judgment by the High Court Division, but the application for cancellation of the VAT registration was not disposed of till then. When the application for cancellation of the VAT registration was filed tender section 19(1) of the VAT Act, it was the I duty of the concerned VAT authority to move in the matter and give his decision. The concerned VAT authority must have remembered that he, being a Government functionary, was duty bound to act as per the dictate of law this way or that way and, for no reason and logic, he could just sit over the matter.
With the above observations, this petition is dismissed.
(Concluded)
11. From the judgment and order of the High Court Division, it appears that it took notice of the facts that the writ-petitioner first made an application on 20-8-1998 for refund of Taka 3,95,98,579 claiming stoppage of production and closure of the mills since 12-5-1998. Thereafter, the mills again commenced production and finally stopped production since 31st August, 2000. On 29-11-2001, the writ-petitioner made an application to the Superintendent for cancellation of VAT registration after closure of the mills since 4-11-1999. On 10-12-2001, the writ-petitioner again wrote to the Superintendent for cancellation of VAT registration, Upon such applications, the writ-petitioner first received a response by way of a show cause notice dated 23-4-2003 issued by the Commissioner claiming that there was no, balance in favour of the writ-petitioner, rather there were arrears of Taka 3,90,44,258. The writ-petitioner by its reply dated 13-5-2003 controverter the claims of the ‘Commissioner and explained its position. There was an enquiry by a four member committee appointed by the VAT authority and said committee found a balance of Taka 2,86,86,793 in the current account and after adjustment with the arrears of Taka 57,66,227, the writ-petitioner was found entitled to the refund of Taka 2,29,20,566. After receipt of the report, the Commissioner heard the writ-petitioner. He however, found the balance, of Taka 3,28,22,748 in the current account in favour of the writ-petitioner. He also found arrears of Taka 57,66,227, rebate of Taka 5,04,064 taken on the stock while tariff was in force and rebate of Taka 2,93,28,611 taken by showing excess use of Zinc Ingot, in total non-refundable rebate of Taka 2,93,28,611. By adjusting the amount with said balance of Taka 3,28,22,748, the Commissioner found that Taka 34,94,137 could be refundable to the writ-petitioner …
12. From the order of the Appellate Tribunal, it appears that it considered everything and also gave finding in favour of the writ-petitioner as to its entitlement to the refund of VAT, but it refused to give the relief to the writ-petitioner and even set-aside the order of the Commissioner which allowed refund of Taka 34,94,137 on the view that VAT registration of the writ-petitioner was not cancelled under Section 19(1) of the VAT Act and therefore, there was chance of commencement of production.
The Appellate Tribunal was of the further view that the prayer for refund was premature in view of the provisions of rule 34Ka(4) of the VAT Rules, 1991, the writ-petitioner would be entitled to the refund of the VAT after cancellation of its registration under sub-section (1) of section 19 of the VAT Act. In repealing the said view of the Appellate Tribunal, the High Court Division held that under sub-section (1) of Section 19 of the VAT Act if a-.registered person refrains from production or supply of taxable goods, he shall inform such stoppage to the concerned authority within 14 (fourteen) days and if· the concerned authority is satisfied that there was no unsettled liability then he shall cancel the registration, under sub-section (3) thereof and after such cancellation of the registration, such person becomes entitled to get refund of any balance in, the Current account. The writ-petitioner made the prayers for cancellation of the registration and refund long back, but no steps were taken by the VAT authority for cancellation of registration. In the aforesaid facts and circumstances, registration of the writ-petitioner shall stand cancelled and after the cancellation of registration, the petitioner shall become entitled to refund of the balance in the current account.
The High Court Division further held that the VAT authority is authorized to cancel the registration, but the failure of the VAT authority in cancelling the registration, the writ-petitioner could not be held responsible and therefore, the appeal of the writ-petitioner could not be rejected for want of cancellation of registration under rule 34Ka(4) of the VAT Rules, 1991.
The High Court Division was also of the view that rule 34Ka(4) of the VAT Rules “appears to be relevant to a case where refund was sought for under Section 67 of the VAT Act.”
13. We have considered the facts as noted by the High Court Division, particularly, the fact that the application for refund of excess VAT was filed by the writ-petitioner as back as on 20-8-1998 claiming stoppage of production and closure of the mills since 12-5-1998 and the further fact that after the mills had commenced its production again, finally it stopped the production since 31st August, 2000 and then again, on 29-11-2001 made an application to the Superintendent for cancellation of the VAT registration after closure of the mills since 4-1-1999.
Then again, on 10-12-2001, the writ-petitioner wrote to the Superintendent for cancellation of registration, but the respondents did not take any action on the applications filed by the writ-petitioner. The High Court Division specifically noted in its judgment that” At the time when we hear the matter, there is no dispute with regard to the facts that production in the mills was stopped since 31 August, 2000 and the mills were closed down and there was no stock for sale or disposal since then. The VAT authority has not said that there may be commencement of production in the mill in the future. In its report dated 29-3-2001, the four member committee found the balance in the current account stood at Taka 2,29,20,566 while the Commissioner found the balance at Taka 2,28,22,748 in favour of the petitioner.”
14. There is no dispute that the writ-petitioner made prayers to the concerned respondent under Section 19(1) of the VAT Act for refund upon cancellation of the VAT registration. In the leave petition, it has not been claimed by the Commissioner that the writ-petitioner never commenced its production in the mills after stoppage finally since 31st August, 2000 and that the mills were not closed down and there was stock for sale or disposal since then as specifically observed by the High Court Division.
15. In view of the above, we find no illegality with the High Court Division in making the Rule absolute in the terms as quoted hereinbefore and therefore, no interference is called for with the impugned judgment and order. However, we endorse the observations of the High Court Division that “It may however be mentioned that if the VAT authority may have any justifiable ‘demand against the petitioner, they can raise and get adjudicated the same in accordance with the provisions of the VAT Act. But they cannot adjust any disputed amount, which was never adjudicated under Section 55 of the VAT Act.” We also put our disapproval of the inaction of the concerned VAT authority on record in sitting over the applications filed by the writ-petitioner for cancellation of VAT registration and for fund of their due. It needs to be mentioned that more than 6(six years) 4(four) months elapsed from 29-11-2001 (on which date the writ-petitioner filed the application to the Superintendent for cancellation of VAT registration after closure of the mills finally since 4-1-11999) till the pronouncement of the judgment by the High Court Division, but the application for cancellation of the VAT registration was not disposed of till then. When the application for cancellation of the VAT registration was filed tender section 19(1) of the VAT Act, it was the I duty of the concerned VAT authority to move in the matter and give his decision. The concerned VAT authority must have remembered that he, being a Government functionary, was duty bound to act as per the dictate of law this way or that way and, for no reason and logic, he could just sit over the matter.
With the above observations, this petition is dismissed.
(Concluded)
