Judgment
Page No.# 1/10 GAHC010078892024
2026:GAU-AS:12868
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2468/2024 M/S NEW HAPJAN TEA COMPANY PVT LTD HAVING ITS REGISTERED OFFICE AT NIRMALI GAON, RATANPUR, P.O.
AND P.S.-DIBRUGARH, DIST- DIBRUGARH, ASSAM VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM IN THE DEPARTMENT OF FINANCE AND TAXATION, DISPUR, GUWAHATI, PIN-781006 2:THE PRINCIPAL COMMISSIONER OF STATE TAX ASSAM KAR BHAWAN DISPUR GUWAHATI-781006 DIST- KAMRUP (M) ASSAM 3:THE SPECIAL COMMISSIONER OF STATE TAX ASSAM KAR BHAWAN DISPUR GUWAHATI-781006 DIST- KAMRUP (M) ASSAM 4:THE DEPUTY COMMISSIONER OF TAXES SIVASAGAR ZONE BABU PATTY SIVASAGAR P.O. AND P.S.-SIVASAGAR
Page No.# 2/10 PIN-785640 ASSAM 5:THE JOINT COMMISSIONER OF TAXES (APPEALS) OFFICE OF THE JOINT COMMISSIONER OF STATE GST TINSUKIA PARBATIA PIN-786125 ASSAM 6:THE ASST. COMMISSIONER CUM SUPERINTENDENT OF TAXES DIBRUGARH NEAR D.C. OFFICE P.O. AND P.S.-DIBRUGARH PIN-786003 ASSA B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH
Advocates for the petitioner(s) : Mr. G Choudhury Ms. MN Konyak
Advocates for the respondent(s) : Mr. B Gogoi Standing Counsel Finance & Taxation Department, Govt. of Assam
Date on which Judgment is reserved: NA
Date of Pronouncement of Judgment : 03.09.2026
Whether the Pronouncement is of the : Yes Operative Part of the Judgment
Whether the Full Judgment has been : No Pronounced JUDGMENT & ORDER(ORAL)
Heard Mr. G Choudhury, the learned counsel appearing on behalf of the
Page No.# 3/10 Petitioner. I have also heard Mr. B Gogoi, the learned Addl. A.G. Assam who is also the Standing Counsel of the Finance and Taxation Department, Govt. of Assam being the Respondent Nos.1 to 6.
2. The present writ petition has been filed challenging the order dated 11.01.2023, as well as all consequential orders passed, and further seeking a direction for refund of the pre-deposit amount of Rs.11,22,000/- along with interest @ 24% from 30.12.2021 till realization.
BRIEF FACTS OF THE CASE:
3. The Petitioner herein is a company registered under the provisions of the Companies Act 1956 and is engaged in the business of manufacture and sale of tea. The Petitioner is also registered under the Assam Value Added Tax Act, 2003, (for short, ‘the Act of 2003’), as well as the Central Sales Tax Act, 1956, (for short, ‘the Act of 1956’). For the assessment year 2014-15, the Petitioner submitted its returns.
4. The case of the Petitioner was picked up for scrutiny assessment, and thereupon an order was passed on 20.03.2020, whereby the Petitioner was held liable to pay tax to the tune of Rs.44,88,914/- along with interest. Pursuant thereto, a notice of demand was issued on 03.07.2021. It was the case of the Petitioner that the date when the notice of demand was issued, the period prescribed under Section 39 of the Act of 2003 to exercise the powers under Section 36 of the said Act had elapsed.
5. Being aggrieved, the Petitioner filed an appeal before the Joint Commissioner of Taxes (Appeals). At the time of filing the appeal, the Petitioner
Page No.# 4/10 had to deposit as pre-deposit in terms with Section 79(5) of the Act of 2003 an amount to the tune of Rs.11,22,229/-. The Deputy Commissioner of Taxes (Appeals), vide an order dated 30.12.2021 held that the assessment order passed on 20.03.2020 was beyond the period of limitation provided for passing of the order under Section 36 of the Act of 2003, and accordingly set aside the order dated 20.03.2020.
6. The Petitioner, thereupon submitted a refund application for the pre-deposit amount of Rs.11,22,229/-. However, the said refund was not granted. Rather, the Special Commissioner of the State Tax Assam, vide the communication dated 11.01.2023, directed the Deputy Commissioner of State Tax to complete the reassessment of the Appeal Order and submit a proposal for taking necessary action. In pursuance thereto, various notices were issued to the Petitioner initiating re-assessment proceedings, and it is under such circumstances, the Petitioner had approached this Court by filing the writ petition.
7. The record reveals that upon filing of the instant writ petition, the learned Coordinate Bench of this Court, by an order dated 15.05.2024, directed no coercive action should be taken against the Petitioner in terms with the notices dated 30.11.2023 and 27.02.2024. Subsequent thereto, by an order dated 23.04.2025, the learned Coordinate Bench of this Court issued notice and thereby directed the Respondent authorities not to take any coercive action against the Petitioner in terms with the notices dated 30.11.2023 and 27.02.2024. The interim order thereupon has been extended from time to time.
Page No.# 5/10 8. This Court further takes note of that on 06.06.2026, an affidavit-in- opposition was filed by the Respondent No.2, wherein it is mentioned that the Assessing Officer was bound to keep in view the interest of the Government Revenue, and to protect the public money, and if any loss of revenue is detected beyond any time limitation as provided in law for assessment and re- assessment, then for bona fide use of jurisdiction and to protect the Government Revenue and public money, the question of limitation should not be taken as a ground. It was further mentioned that notice of production of books of account were duly served upon the Petitioner on 22.09.2015, 06.10.2015 and 09.12.2019, which were well within the period of limitation.
9. In the backdrop of the above, this Court has heard the learned counsels appearing on behalf of the parties and has perused the materials on record.
10. 2(two) questions arise in the instant proceedings. First, as to whether the Petitioner is entitled to the refund of the amount of Rs.11,22,229/- and second, as to whether the action on the part of the Respondent Authorities to proceed with the re-assessment for the assessment years 2014-15 is permissible.
11. The Petitioner being aggrieved by the order dated 20.03.2020, which was served upon the Petitioner on 03.07.2021, had filed an appeal before the Joint Commissioner of Taxes (Appeals). It is a stipulation in Section 79(5) of the Act of 2003 that no appeal by any person shall be entertained by the Appellate Authority, unless such Appeal is accompanied by a satisfactory proof of payment of minimum 25% of the disputed tax, penalty, if any, imposed, and the interest accrued thereon. The Petitioner, accordingly, had deposited the amount of
Page No.# 6/10 Rs.11,22,229/-.
12. In the case of Union of India Vs. Suvidhe Limited, reported in (2016) 11 SCC 808, the Supreme Court made a clear distinction between refund of the pre-deposit made for hearing an appeal with that of a claim for refund of the excise duty. The Supreme Court in the said judgment held that the amount deposited for availing the right of Appeal is not a payment of duty, but only a pre-deposit for availing the right of appeal, and such amount is bound to be refunded when the appeal is allowed with consequential relief. Paragraph 3 of the said order being relevant is reproduced hereinunder:
“3. Show cause notice issued by the Superintendent (Tech.)
Central Excise to the petitioner to show cause why the refund claim for Excise Duty and Redemption fine paid in a sum of Rs.14,07,410/- should be denied under Section 11-B of the Central Excise Act, 1944 is impugned in the present petition. The aforesaid amount is deposited by the Petitioners not towards Excise Duty but by way of deposit under Section 35-F for availing the remedy of an appeal. Appeal of the petitioners has been allowed by the Appellate Tribunal by its Judgment and order passed on 30.11.1993 with consequential relief. The Petitioners' prayer for refund of the amount deposited under Section 35-F has not received a favourable response. On the contrary, the impugned show-cause notice is issued as to why the amount deposited should not be forfeited. In our judgment, the claim raised by the Department in the show cause notice is thoroughly dishonest and baseless. In respect of a deposit made under Section 35-F, provisions of Section 11-B can never be applicable. A deposit under Section 35-F is not a payment of Duty but only a pre-deposit for availing the right
Page No.# 7/10 of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential relief.” 13. Similar observations were made by the Supreme Court again in the case of Commissioner of Customs (Import), Raigad Vs. Finacord Chemicals Private Limited and others, reported in (2015) 15 SCC 697.
14. In the case of Gayatri Distillers and Bottling Industries Vs. the State of Assam and 4 others, reported in (2025) 140 GSTR 370 which is a proceedings in connection with the Act of 2003, this Court had observed that the pre-deposit so made by the Petitioner in the said proceedings for admission of four revision petitions cannot be equated to payment of tax, but was pre- deposit for availing the right of revision. This Court held in the said judgment that when the revisional authority had allowed the revision petitions, the Petitioner therein was entitled to the refund of the said amount which the Petitioner had deposited as a pre-deposit. In addition to that, this Court had also observed in the said judgment that taking into account Section 52 of the Act of 2003, the Petitioner therein would be entitled to simple interest @ 9% per annum.
15. In view of the settled principles of law, it is, therefore, the opinion of this Court that once the appeal filed by the Petitioner was allowed, the question of not refunding the pre-deposit of Rs.11,22,229/- to the Petitioner amounts to illegal and unauthorized retention of the amount refundable to the Petitioner.
Accordingly the Petitioner is entitled to directions for refund of the pre-deposit amount of Rs.11,22,229/-. Further to that, as such retention of the pre-deposit is illegal and unauthorized, it is also the opinion of this Court that the Petitioner
Page No.# 8/10 is entitled to interest in terms with Section 52 of the Act of 2003 @9% per annum.
16. Let this Court now take up the second issue as to whether the communication dated 11.01.2023 as well as the subsequent actions so taken by the Respondent authorities can be sustained in law.
17. This Court has duly taken note of the contents of the communication dated 11.01.2023, wherein it is mentioned that on verification of the case records, the reassessment order was not found in the case record for the assessment year 2014-15 as per the appeal order passed by the Deputy Commissioner of Taxes (Appeals), Tinsukia, and, therefore, directed to complete the reassessment of the said appeal order and resubmit the proposal for taking necessary action.
18. The order dated 20.03.2020 is an order passed by the Assessing Officer under Section 36 of the Act of 2003. The said order was set aside by the Deputy Commissioner of Taxes (Appeals), Tinsukia by the order dated 30.12.2021. The available recourse to the order dated 30.12.2021 passed by the Deputy Commissioner of Taxes (Appeals) for the Respondents is either to file appeal under Section 80 of the Act of 2003 before the Appellate Tribunal subject to the availability of the limitation period or by exercising jurisdiction under Section 82(1) of the Act of 2003 by the Commissioner of Taxes. For the purpose of exercising jurisdiction under Section 82(1) of the Act of 2003, there is the requirement of satisfaction by the Commissioner of Taxes that the order sought to be revised is erroneous insofar as it is prejudicial to the interest of the revenue. Further to that, such decision of the Commissioner of Taxes has to be
Page No.# 9/10 preceded by giving the dealer an opportunity of hearing.
19. In the instant case, it is surprising to note that nothing of such sort had been undertaken by the Respondent authorities. The Respondent No.3 without exercising the powers conferred under Section 82(1) of the Act of 2003 could not have directed reassessment. This Court also takes note of that the subsequent proceedings has been initiated by the various Respondents, as would be apparent from Annexures 7 & 8 of the petition solely on the basis of the communication dated 11.01.2023.
20. The said action on the part of the Special Commissioner of State Tax Assam i.e. the Respondent No.3 of issuance of the communication dated 11.01.2023 for the reasons discussed above and the subsequent actions thereupon cannot be termed as action taken in accordance with the provisions of the Act of 2003, for which, the same are required to be interfered with.
21. Accordingly, the instant writ petition stands disposed of with the following observations and directions:
(i). The Respondent authorities, and more particularly the Respondent Nos.2 and 3, are jointly and severally directed to refund the amount of Rs.11,22,229/- to the Petitioner.
(ii). The said amount shall carry a simple interest @ 9% from the date of passing of the appellate order dated 30.12.2021 by the Deputy Commissioner of Taxes (Appeals).
(iii). The impugned communication dated 11.01.2023 issued by the Respondent No.3; the communication dated 20.02.2023 issued by the Respondent No.4; the communication dated 30.11.2023 issued by the
Page No.# 10/10 Superintendent of Taxes, Dibrugarh; the communications dated 09.01.2024 and 27.02.2024 issued by the Respondent No.6 are all set aside and quashed.
(iv). There shall be no order as to costs.
22. It is, however, clarified that the instant judgment shall not come in the way of the Respondents to take action against the order dated 30.12.2021 passed by the Deputy Commissioner of Taxes (Appeals) if so permissible under the law.
23. The refund of the pre-deposit amount shall be refunded along with interest as directed above within a period of 3(three) months from the date a certified copy of this order is served upon the Respondent No.2.
JUDGE Comparing Assistant Shivani Gautam Digitally signed by Shivani Gautam Date: 2026.09.09 11:36:20 +05'30'