Refund of tax under clause (a) or clause (aa) or clause (ab) of section 61

76. Refund of tax under clause (a) or clause (aa) or clause (ab) of section 61.

(1) Where a registered dealer as referred to in section 61 has sought for -

(a)    the refund of the amount of tax realised or realisable from him by another registered dealer under clause (a) of sub-section (1) of section 61; or

(b)    the refund of the excess amount of net tax credit over output tax under clause (aa) of sub-section (1) of section 61; or

(c)    the refund of such per centum of input tax credit available during such return period referred to as ‘A’in sub-section (17) of se ction 22 after adjustment of reverse credit, if any, as corresponds to all sales of goods in the course of export out of India within the meaning of section 5 of the Central Sales Tax Act, 1956 (74 of 1956), to total sales in the return period under clause (ab) of sub-section (1) of section 61,

refund to the extent of seventy five  per centum of the amount arising under clause (a), or clause (aa), or clause (ab) of sub-section (1) of section 61, shall be made to such dealer within making any prior assessment subject to the conditions and restrictions laid down in sub-rule (2) to sub-rule (10).

(2) The registered dealer shall, after submission of return along with receipted challan or challans evidencing full payment of net tax, interest, and late fee according to such return for any period under the Act and under the Central Sales Tax Act, 1956 (74 of 1956), make an application in Form 31A either under digital signature or without any digital signature, electronically though the web site, www.wbcomtax.gov.in of the Commercial Taxes Directorate, to the Commissioner, within three months from the date of submission of such return, or subject to the satisfaction of the Commissioner, or the Additional Commissioner, as may be authorised by the Commissioner (hereinafter referred to as the refund sanctioning authority for the purpose of this rule) within such further time not exceeding four months from the date of submission of such return as may be allowed by such authority, for refund of seventy five  per  centum of the amount arising under clause (a), or clause (aa), or clause (ab), as the case may be, of sub-section (1) of section 61 during the return period for which such refund has been claimed by him on the basis of statements and declarations in Form 32, Form 35, Form 36, Form 37, as applicable :

(c)   a statement of purchases, pertaining to the refund in the following proforma :–

Statement of purchase pertaining to the refund under clause (a), clause (aa), or clause (ab), of sub-section (1) of section 61

In respect of the return period ....................................................

Signature with the date and status (Proprietor/Partner/Karta, HUF/Principal Officer/Trustee/President/General Secretary)

(d)   an application for condonation of delay in making application for refund in Form 31A, if the application has been made after the expiry of the period of three months from the date of submission of return.

2B) The dealer shall, within fifteen days from the date of completion of the electronic transmission, required under sub-rule (2) and sub-rule (2A), of Form 31A and the documents referred to in sub-rule (2A), submit those documents in paper form, duly filled in, signed and authenticated by him, to the refund sanctioning authority, either in person or by speed post by way of generating paper form of those documents electronically after transmission of those documents under sub-rule (2) and sub-rule (2A). He shall also submit the following along with the paper form of the above documents :

(a) Form 35, Form 36, Form 37, as the case may be;  

(b) a copy of the return certified by him to be the true copy of the return furnished by him in respect of the quarter for which refund has been sought;

(c) a certificate from a Chartered Accountant or a Cost Accountant certifying the amount of purchase and the amount of sales and the correctness of the claim of refund made in Form 31A;

(d) a copy of the receipt received by the dealer, electronically acknowledging the receipt of document transmitted electronically under sub-rule (2) and sub-rule (2A).

(2CC) Where under any clause other than the clause (e) of sub-section (1) of section 46 in respect of such return period assessment proceedings have been initiated under that section, the registered dealer shall not be entitled to refund under this rule in respect of such return period.

(2D) The amount which is, prima facie, found admissible for refund in accordance with the provision of sub-rule (3)(c) the application of refund made by the registered dealer, shall not be refunded to him unless such dealer furnishes by the date specified in the notice in Form 37B, served upon him under sub-rule (3)(c), an indemnity bond for such sum as has been claimed in the application for refund in the Form appended to this sub-rule to the authority making the refund under sub-rule (3A):–

INDEMNITY BOND KNOW ALL MEN by these presents that –

I/We........................................son of ................................... registered

dealer under the West Bengal Value Added Tax Act, 2003 and holding

dealers under the West Bengal Value Added Tax Act, 2003 and holding the Certificate of Registration No. ............., dated ................., is/are held and firmly bound unto the Governor of West Bengal (hereinafter referred to as the Governor) in sum of ................... (rupees  ......................) well and truly to be paid to the Government on demand and without demur for which to be well and truly made and for that purpose, I/we, the undersigned, bind myself/ourselves and my/our heirs, executors, administrators, legal representatives, my/our successors and assigns and the person for the time being having the control over my/our assets and affairs.

Signed  this  ...............  day  of  .................  Two  Thousand.......................... .

 WHEREAS sub-rule (2D) of rule 76 of the West Bengal Value Added Tax Rules, 2005, requires that in the event of refund in accordance with the provision of sub-rule (3A) or sub-rule (3C) in respect of the application of refund made by the undersigned to the Government of West Bengal of Rs.....................(rupees) shall be secured by a bond in terms hereinafter contained;

Now the condition of this above-written bond or obligation is such that if the undersigned or his/their heirs, executors, administrators, legal representatives, successors and assigns or the person for the time being having the control over his/their assets and affairs shall repay or cause to be repaid the sum of Rs........................ (rupees...........................) in the event of loss suffered by the Government as a result of false or incorrect statements, declarations and documents furnished or produced by the undersigned and in such event the bond or obligation shall be void and stand automatically cancelled, otherwise the same shall remain in full force and virtue.

 Signed by the above named registered dealer

(2E) If the dealer fails to furnish the required documents referred to in sub-rule (2A) and in sub-rule (2B) or if the application is not in order, the refund sanctioning authority shall serve a notice on the dealer asking him to furnish those documents or to remove the defect within fifteen days from the receipt of the notice.

(2F) If the dealer complies with the terms of the notice issued under sub-rule (2E), the application for refund in Form 31A shall be deemed to have been received under this rule on the date on which the dealer furnishes the required documents or removes the defect in the application and thereafter the application for refund will be entertained.

(2G) If the dealer does not comply with the terms of the notice issued under sub-rule (2E), the application shall be rejected by the refund sanctioning authority referred to in sub-rule (2) and the dealer shall be informed of such rejection.

(3) (a) The refund sanctioning authority shall, after receiving the application for refund in Form 31A, send one copy of such application along with all the documents furnished in accordance with the provisions of sub-rule (2B) to the appropriate assessing authority and the appropriate assessing authority shall, on receipt of such copy of application, cause an enquiry to ascertain as to whether the applicant for refund is in possession of documents connected with the refund and shall return those documents with his report containing any fact pertaining to refund and a fact whether the applicant for refund is in possession of documents connected with the refund.

(c) If the application for refund in Form 31A made by the dealer together with the documents referred to in sub-rule (2B) are properly filled in and the refund sanctioning authority, upon preliminary examination of those documents, the application for refund, copy of the return certified by the appropriate assessing authority to be true copy of the return and the reports furnished by the appropriate assessing authority under sub-rule (3)(a) and sub-rule (3)(b), is prima facie satisfied that claim of refund is admissible, he shall serve a notice in Form 37B upon the applicant informing him that ninety per centum of the amount of refund claimed by him in the application or ninety per centum of such amount less than the amount claimed by him in the application for refund to be refundable to him, shall be refunded to him forthwith by Refund Adjustment Order or Refund Payment Order or by cheque, or by National Electronic Funds Transfer, upon furnishing by him, in accordance with the provisions of sub-rule (2D), an indemnity bond by the date specified in the said notice or by the date as extended by an order, in writing, by the refund sanctioning authority upon prayer by the applicant for refund for extension of time for furnishing the said indemnity bond :

Provided that the date to be specified for furnishing the indemnity bond by the applicant in the notice referred to in this sub-rule shall not be less than seven days from the date of service of the notice :

Provided further that the Additional Commissioner who is the refund sanctioning authority, shall before serving a notice in Form 37B upon the applicant for refund, send all records which have been examined by him under this sub-rule and also his observation of the amount which is prima facie found admissible by him to be refundable to the Commissioner for obtaining his approval for the refund and where the Commissioner accords his approval for the said refund, the refund sanctioning authority shall, thereafter, proceed to serve the notice in Form 37B upon the applicant :

(3A) Where the dealer who has been served with a notice in Form 37B, issued under sub-rule (3)(c), furnishes the indemnity bond pursuant to the said notice on or before the date as specified in the said notice or such date as extended by the refund sanctioning authority under sub-rule (3)(c), the refund sanctioning authority shall, within thirty working days from the date of receipt of the application for refund, pass an order for making refund to such dealer seventy five per centum of the amount of refund claimed by him in the application or of such admissible amount, and issue Form 37C enclosing therewith the Refund Adjustment Order or Refund Payment Order (Cash) or the cheques and one copy of the Form 37C shall be sent to the appropriate assessing authority :

Provided that where, as declared in the application for refund in Form 31A, any amount of tax, interest, late fee or penalty is payable by, or due from, such dealer in accordance with the declaration made in the application for refund in Form 31A, the refund sanctioning authority shall first issue Refund Adjustment Order in favour of the dealer authorising such dealer to adjust the amount shown to have been paid in excess in the Refund Adjustment Order against the amount or amounts of tax, interest, late fee and penalty payable by, or due from, him and thereupon, if any amount still remains refundable, the refund sanctioning authority shall issue Refund Payment Order (Cash) or cheque in favour of the dealer :

Provided further that where no amount of tax, interest, late fee or penalty is payable by or due from the dealer, the said authority shall issue Refund Payment Order (Cash) or cheque for the full amount to be refunded as per the order of refund made under this sub-rule :

Provided also that where such dealer makes an application any time within thirty days from the date of receipt of the Refund Adjustment Order for payment of the refundable amount otherwise than by way of such Refund Adjustment Order on the ground that there is or are no amount of tax, interest, late fee or penalty payable by, or due from, him against which the refundable amount may be adjusted and if the refund sanctioning authority is satisfied to that effect, the said authority may refund the said amount or amounts to the dealer through National Electronic Funds Transfer :

(3B) After the refund is made under sub-rule (3A), the applications for refund alongwith all documents furnished by the dealer and also other documents connected with the proceedings for refund lying with the refund sanctioning authority shall be transferred to the appropriate assessing authority or such other authority as the Commissioner may authorise, for assessment under clause (e) of sub-section (1) of section 46 and the refund so made under sub-rule (3A) shall be subject to the result of such assessment in which the amount refunded under sub-rule (3A) shall be taken into account.

(3C) If, after assessment under sub-section (1) of section 46, no amount is determined to be refundable or the amount of refund determined to be refundable is less than the amount which has already been refunded to the dealer under sub-rule (3A), the said authority shall demand the amount so refunded under sub-rule (3A) by way of assessment.

(3D) *  *

(4)  *  *

(5)  Where the claim for refund upon preliminary examination under sub-rule (3)(c) is found inadmissible, the refund sanctioning authority shall issue a notice to the applicant asking him to show cause as to why the application for refund shall not be rejected and if the refund sanctioning authority is not satisfied with the reasons adduced by the applicant, he shall, within thirty working days from the receipt of the application for refund, reject the application for refund made under sub-rule (2) and inform the applicant of such rejection.

(6)    The applicant shall follow uniform pattern and accepted principles of accounting in respect of the claims of refunds, with appropriate modifications or adjustments, if any, on the basis of findings of the Commissioner with regard to the disposal of earlier application or applications referred to in sub-rule (2).

(7) If information furnished by a registered dealer in any document referred to in sub-rule (2) is found to be incorrect or if the claim of refund of excess amount of net tax credit over output tax for any return period for which an application for refund has been submitted by him under this rule, is found to be in excess of the admissible amount by more than ten per centum for that return period, the registered dealer shall not be eligible to get refund not exceeding fifty per centum of the amount arising under clause (a), or clause (aa), or clause (ab), of sub-section (1) of section 61 for the next eight return periods.

(7A) Notwithstanding anything contained in this rule, where the refund sanctioning authority is satisfied that for certain reasons the refund of the amount claimed by the applicant in the application for refund to be refundable to him or such amount less than the amount claimed by the applicant in the application for refund to be refundable to him, is to be withheld for certain period of time as he deems fit, he may do so after obtaining the approval of the Commissioner for withholding the refund for certain period of time.

(7B) Where the refund sanctioning authority withholds the refund for a certain period of time, he shall inform the dealer of the reasons for which the refund has been withheld for a certain period of time.

(7C) Where a dealer has made application for refund in Form 31A under any of the sub-sections of section 61 in respect of any return period of a year under this rule, he has to make application for refund under this rule for all subsequent return periods of the said year, provided refund arises for those return periods.

(8) The refund thus made under clause (a) or clause (aa) or clause (ab), of section 61 shall be entered into a refund register in Form 38A.

(9) Where a registered dealer revises the return in respect of a return period in accordance with the provisions of sub-section (3) of section 32 after making of application for refund in respect of the said return period and the revised return shows greater amount of refund than what has been claimed by him in the original return, such excess amount shall be refunded to him by way of making assessment under sub-section (1) of section 46.

(10) All applications for refund under section 61 for which refund has already been granted under sub-rule (3A) before the day this rule comes into force, shall stand transferred to the appropriate assessing authority or such authority as the Commissioner authorises to act as the appropriate assessing authority for the purpose of determining the actual amount refundable to the dealer in course of making assessment of net tax under clause (e) of sub-section (1) of section 46.