C.K. Abdul Rehim, J.
1. The petitioner is a dealer in timber and timber logs, having registration under the provisions of the Kerala Value Added Tax Act 2008 and Central Sales Tax Act 1956. He is purchasing timber logs from various Depots under the Forest Department of the State Government, on payment of tax due thereon. With respect to the year ending on 31.3.2006, there is excess input tax credit remaining unadjusted in the accounts of the petitioner. The petitioner filed refund application in the prescribed form as evidenced by Ext.Pl. Through Ext.P2 notice, the first respondent informed the petitioner that refund of excess input tax cannot be made for want of details. The petitioner was requested to produce lax payment details from various offices of the Forest Departments. Through Ext.P3, the petitioner replied that the bills produced by him are issued from the Government depots and it will clearly disclose collection of tax on the sale value of the timber. Further it was pointed out that the tax amounts were paid through separate Demand Drafts and particulars of such remittances were already furnished along with the monthly returns, enclosing copies of such Demand Drafts. In the reply it is stated that, since the seller is the Forest Department, it is capable of easy verification from the offices concerned. But without considering the explanations in reply, the claim for refund was rejected through Ext.P4 order. Eventhough the petitioner submitted a representation before the Commissioner of Commercial Taxes, nothing was received in response. Hence the petitioner seeks to quash Ext.P4 and seeks direction to the first respondent to grant refund of the excess input tax.
2. The respondents in their counter affidavit admit that the petitioner had furnished all bills and copies of Demand Drafts. According to the respondents, what was requested is to furnish tax remittance certificates from the Forest Department in order to confirm the payments. The contention is that it is not practically possible to have a cross verification with the various offices in the Forest Department. It is stated that the rejection of the claim for refund is valid because the petitioner had failed to produce certificates obtained from the Forest Department.
3. Heard learned Counsel for the petitioner and the learned Government Pleader. Counsel for the petitioner submits that the Forest Department is also a 'dealer' under the provisions of the Kerala Value Added fax, and the tax amount is paid when the petitioner purchased goods from that dealer. Therefore credit need be given for the amount of such input tax, the payments of which are proved through production of bills and copies of Demand Drafts. According to him, even if any cross verification is needed, it is the duty of the assessing authority concerned, and that the petitioner could not be insisted to obtain any further certificates. Therefore the rejection of the claim for refund is totally unsustainable, is the contention.
4. The contention of the learned Government Pleader at the first instance is that, Ext .P4 is an appealable order and therefore validity of the same could not be challenged in a writ petition. On a careful examination of Ext.P4 it is evident that the refund is not denied, as one not admissible. On the other hand the claim petition itself is rejected on a technical ground. Therefore even if the order is appealable, this Court is justified in examining the issue.
5. The question to be considered is as to whether the petitioner is liable to produce any further proof with respect to payment of input tax, for which refund is claimed. Section 11(3) of the Act makes it clear that the assessee is entitled credit of input tax against the output tax payable by him. Section 11(6) provides that if the input tax of a dealer is more than the output tax for the returned period, then the difference shall be adjusted against amounts if any due from the dealer or shall be carried forward to the next returned period. Proviso to that section states that if the carried forward input tax cannot be fully adjusted during the last returned period of that year, the excess tax credit comaining unadjusted should be refunded to the dealer, as if it is a refund accrued under Section 13 of the Act.
6. Rule 47A of the Kerala Value Added Tax Rules 2005, deals with refund of input tax remaining unadjusted at the end of the year. The said Rule provides that every dealer claiming refund in accordance with Section 11(6) shall within three months after the expiry of the year concerned, submit an application in form No. 21CC to the assessing authority. Sub-rule (2) to Rule 47A provides that Sub Rules (2) to (5) of Rule 47 shall mutatis mutandis apply to the refund contemplated under Rule 47A. Sub-rule (2) and (3)(i) of Rule 47 is extracted below:
(2) The burden of proving that a dealer is entitled to the refund under this rule shall be on the dealer who claims the refund.
(3)(i) On receipt of the application in Form No. 21C the assessing authority shall, if it is satisfied after such enquiry as it considers necessary, that input tax credit has not been availed of in respect of such goods and that the claim of refund is otherwise admissible, pass an order refunding the tax within three months from the date on which the dealer submitted all the relevant records rectifying the defects, if any, pointed out
7. On an analysis of the issue involved in this writ petition on the context of the above quoted provisions, two questions emerges for decision. Firstly, as to what is the extent of burden on the dealer to prove that he is entitled for refund. In this case it is evident that the dealer had produced Bills with respect to purchases made by him, evidencing payment of input tax. Further he had produced copies of Demand Drafts evidencing payment of tax to various Forest Depots within the State. These documents will definitely prove the payment of input tax. Production of these documents can definitely be considered as discharge of the burden cast upon the dealer to prove his claim for refund. Therefore, I am of the opinion that the dealer had successfully discharged burden of proving his entitlement for refund.
8. The next question is regarding the procedure to be adopted by the assessing authority when the dealer satisfies his claim with convincing evidence. As per the procedure contemplated in Sub-rule 3(i) the assessing authority has to make himself satisfied, after such enquiry as it considers necessary, as to whether the refund is admissible or not It is clear that what is contemplated is only a cross verification, if found necessary, for the satisfaction of the assessing authority, with respect to genuineness of the claim or genuineness of the documents produced in support. Can the assessing authority be justified in insisting production of additional proof for the purpose of such verification, if the dealer had already discharged his initial burden cast upon him by virtue of Rule 47(2). From Sub-rule of 3(1) of Rule 47 it is evident that, it is for the assessing authority to conduct 'such enquiry as it considers necessary'. Any such enquiry, which is basically in the nature of a cross verification, is the duty cast upon the assessing authority. The dealer cannot be burdened with production of any additional evidence. His initial burden of proving entitlement for refund should be presumed as discharged, on his production of materials which will clearly indicate payment of input tax. It is for the assessing authority to do any further cross verification, for which the dealer could not be insisted for production of any additional proof or certificates.
9. Under the above circumstances, the rejection of the claim for refund ordered through ExtP4 Is hereby quashed. The first respondent is directed to take up the refund application submitted by the petitioner back to his files and after making verifications and enquiries if found necessary,, should pass final orders refunding unadjusted input tax allowable, as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment.
The writ petition is disposed of accordingly.