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38 Refunds

38 Refunds

(1) Subject to the other provisions of this section and the rules, the

Commissioner shall refund to a person the amount of tax, penalty and interest, if any,

paid by such person in excess of the amount due from him.

(2) Before making any refund, the Commissioner shall first apply such excess

towards the recovery of any other amount due under this Act, or under the CST Act,

1956 (74 of 1956).

(3) Subject to 1[sub-section (4) and sub-section (5)] of this section, any amount

remaining after the application referred to in sub-section (2) of this section shall be at

the election of the dealer, either –

2[(a) refunded to the person, –

(i) within one month after the date on which the return was furnished or

claim for the refund was made, if the tax period for the person claiming refund is one

month;

(ii) within two months after the date on which the return was furnished or

claim for the refund was made, if the tax period for the person claiming refund is a

quarter; or]

(b) carried forward to the next tax period as a tax credit in that period.

(4) Where the Commissioner has issued a notice to the person under section 58

of this Act advising him that an audit, investigation or inquiry into his business

affairs will be undertaken 1[or sought additional information under section 59 of this

Act,] the amount shall be carried forward to the next tax period as a tax credit in that

period

(5) The Commissioner may, as a condition of the payment of a refund, demand

security from the person pursuant to the powers conferred in section 25 of this Act

[within fifteen days from the date on which the return was furnished or claim for the

refund was made.]

[(6) The Commissioner shall grant refund within fifteen days from the date the

dealer furnishes the security to his satisfaction under sub-section (5).

[(7) For calculating the period prescribed in clause (a) of sub- section (3), the

time taken to -

(a) furnish the security under sub-section (5) to the satisfaction of the

Commissioner; or

(b) furnish the additional information sought under section 59; or

[(c) furnish returns under section 26 and section 27; or

(d) furnish the declaration or certificate forms as required under Central Sales

Tax Act, 1956,]

shall be excluded.]]

[(8)] Notwithstanding anything contained in this section, where –

(a) a registered dealer has sold goods to an unregistered person; and

(b) the price charged for the goods includes an amount of tax payable under

this Act;

under clause (b) of sub-section (3) of this section;

no amount shall be refunded to the dealer or may be applied by the dealer

under clause (b) of sub-section (3) of this section unless the Commissioner is

satisfied that the dealer has refunded the amount to the purchaser.

[(9)] Where –

(a) a registered dealer has sold goods to another registered dealer; and

(b) the price charged for the goods expressly includes an amount of tax

payable under this Act,

the amount may be refunded to the seller or may be applied by the seller

under clause (b) of sub-section (3) of this section and the Commissioner may

reassess the buyer to deny the amount of the corresponding tax credit claimed by

such buyer, whether or not the seller refunds the amount to the buyer.

[(10)] Where a registered dealer sells goods and the price charged for the goods is

expressed not to include an amount of tax payable under this Act the amount may be

refunded to the seller or may be applied by the seller under clause (b) of sub-section

(3) of this section without the seller being required to refund an amount to the

purchaser.

[(11) Notwithstanding anything contained to the contrary in sub-section (3) of this

section, no refund shall be allowed to a dealer who has not filed any return due under

this Act.]

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GST India Solution is an effort of firm of professionals who welcome implementation of GST. This is an interactiveplatformthat aspires to disseminate right knowledge to professionals, practitioners and public at large. This platform has beenfloatedbya firm of Chartered Accountants relentlessly working in field of direct and indirect taxes since early 1985.

Goods & Service Tax

Our core competence is statutory compliance, advisory, corporate tax planning and appellate matters of direct and indirect taxesandcorporate training sessions on GST.

The senior partner of the firm has to his credit several professional publications viz., Delhi Sales Tax Right to Use Goods Act, Delhi VAT, Maharashtra VAT, West Bengal VAT, Haryana VAT published by Taxmann. Madhya Pradesh VAT and Chhattisgarh VAT were published by Suvidha Law House, Bhopal. He has also addressed seminars on indirect taxes organized by professional bodies like ICAI, IMA, NIFM etc. and has also contributed articles on subjects of pro. . . . .