Page 97 - GSTL_23rd July 2020_Vol 38_Part 4

2020 ] TEAM HR SERVICES PVT. LTD. v. UNION OF INDIA 463
13. We may however mention that the Counsel for the petitioner also,
perhaps to bring the case of the petitioner within the Circular relied upon, has
sought refund of the amount by calling it “pre-deposit”, when it was not depos-
ited by way of pre-deposit but under protest, even before any demand was
raised and while the petitioner was still being investigated against. Such deposits
under protest, to ease the rigors which the Tax Authorities otherwise are entitled
to impose, are not unknown and judicial notice has been taken thereof. However
as long as the amount deposited is under protest and in which protest, as held in
Mafatlal Industries Ltd. supra no grounds are required to be stated, no right there-
to accrues in favour of the depositee till the depositee is held entitled in law
thereto. Thus, the wrong nomenclature given by the petitioner to the deposit
would not be a ground for allowing the respondents State to unduly enrich
themselves. A Division Bench of this Court in Indglonal Investment and Finance
Ltd. v. Income Tax Officer, (2012) 343 ITR 44 has held that refund provisions
should be interpreted in a reasonable and practical manner and when warranted,
liberally in favour of the assessee.
14. To be fair to the Counsel for the respondents, he has only placed be-
fore us what is recorded in the final rejection refund order but reasoning wherein
is illogical and contrary to the expected conduct from the State and unjustifiable.
The said order does not disclose any ground or statutory provision whereunder
the respondents State are entitled to retain the said amount of Rs. 2,38,00,000/-.
15. No statutory mechanism whereunder the petitioner is entitled to
seek refund in such circumstances also has been disclosed. It is thus not as if, we
ought not to exercise our implicit discretion in exercising writ jurisdiction for the
reason of any statutory remedy being available to the petitioner. When it is so
and when the reasons disclosed in the order refusing refund are found to be il-
logical and de hors the statutory provision and further when it is found that the
respondents State are illegally withholding money, a case for issuing a mandamus
as sought is made out.
16. It is perhaps for this reason only that even while issuing notice of
the petition, directions for refund were made and which remain uncomplied
with.
17. We are unable to find any justification for the respondents to retain
the said amount of Rs. 2,38,00,000/-. We have thus enquired from the Counsel
for the respondents, what should be the rate of interest for which the respond-
ents should be held liable.
18. The Counsel for the respondents states that as per the statute, the
respondents are liable for interest @ 6% per annum only.
19. Per contra, the Counsel for the petitioner has drawn attention to :
(A) Sandvik Asia Ltd. v. Commissioner of Income Tax-I, Pune, (2006) 2 SCC
508 = 2006 (196) E.L.T. 257 (S.C.) where interest @ 9% per annum
was awarded;
(B) Surinder Singh v. Union of India, 2006 SCC OnLine Del 1863 (DB) =
2006 (204) E.L.T. 534 (Del.) where interest @ 12% per annum was
granted on delayed refund;
(C) Hello Minerals Water (P) Ltd. v. Union of India, 2004 SCC OnLine All
2187 (DB) = 2004 (174) E.L.T. 422 (All.) where interest @ 10% per an-
num was granted;

GST LAW TIMES  23rd July 2020  97