Rules and Regulations Implementing R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006)

FORMER SECOND DIVISION [C.T.A. CASE NO. 7595. December 30, 2010.] MINDANAO II GEOTHERMAL PARTNERSHIP , petitioner , vs . COMMISSIONER OF INTERNAL REVENUE , respondent . [C.T.A. CASE NO. 7638. December 30, 2010.] MINDANAO II GEOTHERMAL PARTNERSHIP , petitioner , vs . COMMISSIONER OF INTERNAL REVENUE , respondent . [C.T.A. CASE NO. 7692. December 30, 2010.] MINDANAO II GEOTHERMAL PARTNERSHIP , petitioner , vs . COMMISSIONER OF INTERNAL REVENUE , respondent . RESOLUTION PALANCA-ENRIQUEZ , J p : This resolves petitioner Mindanao II Geothermal Partnership's "Motion for Partial Reconsideration" filed on October 1, 2010. Despite notice, respondent Commissioner of Internal Revenue failed to file her Comment on Petitioner's Motion for Partial Reconsideration, per Report of the Judicial Records Division dated November 12, 2010. In its "Motion for Partial Reconsideration", petitioner alleges that this Court erred in declaring that C.T.A. Case No. 7595 covering petitioner's claim for the first quarter of 2005 was prematurely filed; that C.T.A. Case No. 7692 covering petitioner's claim for the fourth quarter of 2005 was belatedly filed in clear disregard of the CTA's En Banc's ruling in the cases of CE Luzon Geothermal Power Company, Inc. vs. Commissioner of Internal Revenue and CIR vs. CE Cebu Geothermal Power Co., Inc. , C.T.A. EB Nos. 426 and 427, May 29, 2009; that C.T.A. EB Nos. 426 and 427, May 29, 2009 categorically state that judicial recourse within thirty days after the lapse of the 120-day period is only directory and permissive, and not mandatory nor jurisdictional, as long as said 30-day period is within the two-year prescriptive period. Petitioner's contention is bereft of merit. In the recent case of Commissioner of Internal Revenue vs. Aichi Forging Company of Asia, Inc., G.R. No. 184823, October 6, 2010 , the Supreme Court finally put to rest the issue that the 120-day period is crucial in filing an appeal with this Court and that the taxpayer has 30 days within which to appeal to this court the decision of the CIR, or his inaction during the 120-day period to decide, thus: "Section 112(D) of the NIRC clearly provides that the CIR has '120 days, from the date of the submission of the complete documents in support of the application for tax refund/credit,' within which to grant or deny the claim. In case of full or partial denial by the CIR, the taxpayer's recourse is to file an appeal before the CTA within 30 days from receipt of the decision of the CIR. However, if after the 120-day period the CIR fails to act on the application for refund/credit, the remedy of the taxpayer is to appeal the inaction of the CIR to CTA within 30 days. CDEaAI In this case, the administrative and the judicial claims were simultaneously filed on September 30, 2004. Obviously, respondent did not wait for the decision of the CIR or the lapse of the 120-day period. For this reason, we find the filing of the judicial claim with the CTA premature. Respondent's assertion that the non-observance of the 120-day period is not fatal to the filing of a judicial claim as long as both the administrative and the judicial claims are filed within the two-year prescriptive period has no legal basis. There is nothing in Section 112 of the NIRC to support respondent's view. Subsection (A) of the said provision states that 'any VAT-registered person, whose sales are zero-rated or effectively zero-rated may, within the two years after the close of the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales.' The phrase 'within two (2) years . . . apply for the issuance of a tax credit certificate or refund' refers to applications for refund/credit filed with the CIR and not to appeals made to the CTA. This is apparent in the first paragraph of subsection (D) of the same provision, which states that the CIR has '120 days from the submission of complete documents in support of the application filed in accordance with Subsection (A) and (B)' within which to decide on the claim. In fact, applying the two-year period to judicial claims would render nugatory Section 112(D) of the NIRC, which already provides for a specific period within which a taxpayer should appeal the decision or inaction of the CIR. The second paragraph of Section 112(D) of the NIRC envisions two scenarios: (1) when a decision is issued by the CIR before the lapse of the 120-day period; and (2) when no decision is made after the 120-day period. In both instances, the taxpayer has 30 days within which to file an appeal with the CTA. As we see it then, the 120-day period is crucial in filing an appeal with the CTA. With regard to Commissioner of Internal Revenue vs. Victorias Milling, Co., Inc. (22 SCRA 12) relied upon by respondent, we find the same inapplicable as the tax provision involved in that case is Section 306, now Section 229 of the NIRC. And as already discussed, Section 229 does not apply to refunds/credits of input VAT, such as the instant case." As regards C.T.A. Case No. 7692, considering that the Petition for Review was filed 133 days way beyond the prescribed 30-day period to appeal to this Court; and considering that the Petition for Review in C.T.A. Case No. 7595 was prematurely filed before the lapse of the 120-day period for the CIR to decide, then petitioner's claims for refund in C.T.A. Case Nos. 7692 and 7595 were correctly denied. Finding no valid or compelling reason to reverse or set aside our Amended Decision dated September 14, 2010, we have no alternative, but to deny the "Motion for Partial Reconsideration". WHEREFORE , premises considered, petitioner's "Motion for Partial Reconsideration" is hereby DENIED for lack of merit. SO ORDERED. STaIHc (SGD.) OLGA PALANCA-ENRIQUEZ Associate Justice Juanito C. Castaeda, Jr. and Erlinda P. Uy, JJ., concur.