IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12470 of 2008 M/S BHARAT SANCHAR NIGAM LIMITED Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. L. N. Rastogi, Senior Advocate For the Respondents : Mr. Lalit Kishore, Additional Advocate General-III Mr. Satyabir Bharti, Junior Counsel to Additional Advocate General-III ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 22nd August, 2008. We have heard Mr. L. N. Rastogi, the senior counsel for the petitioner. 2. The claim of the petitioner, by means of this writ petition is with regard to interest on refund of Sales Tax. 3. That the telephone rental is not exigible to tax and stands concluded by the decision of the Supreme Court reported in 145 STC 91 is not in dispute. The said judgment by the Supreme Court is of 2nd March, 2006. That payment of tax recovered from the petitioner has been refunded on 6th September, 2007 is also not in dispute. The senior counsel submits that by virtue of Section 43 of the Bihar Finance Act, 1981, the petitioner entitled to interest on the amount of refund if the refund was not made within six months of - 2 - petitioner’s entitlement for refund. He, thus, submits that petitioner is entitled to interest on delayed refund. 4. For better appreciation of the controversy raised by Mr. L. N. Rastogi, a couple of provisions need to be adverted to by us. 5. Sections 42 and 43 of the Bihar Finance Act, 1981 read thus: - “42. Refunds.- The prescribed authority shall in the prescribed manner, refund any amount paid by a dealer in excess of the amount finally determined as being payable by him under this part. The refund shall be allowed by adjustment of such excess towards the amount payable by the dealer for any other period or by cash payment or both: Provided that no claim for such refund shall be entertained unless it is made within three years from the date of service on the dealer of the notice of such excess. “43. Interest.- Any amount refundable under the provisions of this part, if not refunded within six months from the date of receipt of an application in that behalf from the dealer or person concerned shall carry interest at the rate of nine per centum with effect from the date of expiry of the period specified above.” 6. Rule 34 of the Bihar Sales Tax Rules, 1983 provides, thus: - “34. Refunds under section 42.- (1) For the purposes of section 42 the following shall be the prescribed authority:- (a) the Commercial Taxes Officer in charge of a sub-circle, if the amount to be refunded does not exceed [Rs.10,000; (b) the Deputy Commissioner or assistant Commissioner in charge of a circle, if the amount to be refunded does not exceed [Rs.20,000; and - 3 - (c) the Joint Commissioner, if the amount to be refunded exceed, [Rs.20,000. (2) When any amount paid by a dealer or any other person is held to be in excess of the amount finally determined as being payable by him under the Act- (a) a notice of such excess in Form XV shall be issued to the dealer or such other person immediately after such final determination; (b) an application from a dealer for refund of excess tax paid shall be made to the authority prescribed in sub-rule (1) in Form XX and shall clearly specify the grounds upon which the refund is claimed; (c) the authority prescribed in sub-rule (1) shall- (i) in the case of refund by adjustment against any amount payable by the dealer for any other period, issue a refund adjustment order in Form XXIA accompanied by a challan for adjustment; and (ii) in the case of refund in cash, issue a refund payment order in Form XXII and shall cause it to be delivered for encashment to the dealer or his manager, if any, declared under section 14. A copy of the Refund payment order shall also be forwarded simultaneously to the Treasury Officer concerned.” 7. We may notice here that during the course of motion hearing, we wanted to know from the senior counsel, the date on which the application for refund was made. The senior counsel submitted that, that situation did not arise as no notice as contemplated under Rule 34(2)(a) in form XV was issued by the concerned authority to the petitioner. 8. This position, however, is controverted by the Government counsel. He submitted that a perusal of Annexure-7 - 4 - would show that as a matter of fact the notice was issued to the petitioner under Form XV on 25th June, 2007 and in response thereof, in fact the petitioner made an application for refund under Form XX. However, that application was not accepted on 24th July, 2007, as it was incomplete and suffered from wrong entries. The petitioner then reapplied in Form XX, which was received by the concerned authority on 20th August, 2007 and the refund has been made on 6th September, 2007. 9. In view of the aforesaid facts that we have noticed, we hardly find any justification for invoking the high prerogative jurisdiction. As soon as a proper application for refund was made by the petitioner, which was received by the authority on 20th August, 2000, the refund has been made to the petitioner on 6th September, 2007. If any delay occurred in payment of refund, it was, firstly because, no application for refund was made as soon as amount became refundable and then the application was made in Form XX initially was incomplete and suffered from diverse deficiencies. 10. Writ petition is accordingly dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-