1989 (11) TMI 292 - HC - VAT and Sales Tax

Summary

Issues:
Claim for refund under section 14-A of the Orissa Sales Tax Act, 1947 based on rejected applications. Interpretation of the repealed section 14-A and its applicability post-repeal. Commissioner's refusal to entertain applications for refund due to lack of order for refund in assessment.

Analysis:
The petitioner, a registered dealer under the Orissa Sales Tax Act, 1947, sought a refund of Rs. 23,937.29 paid between December 31, 1975, and December 31, 1988, excluding a specific quarter. The applications for refund were initially rejected citing the ultra vires nature of section 14-A of the Act. Upon approaching the Court, the initial rejection was quashed, and fresh consideration was directed by the Court.

Upon reevaluation, the Commissioner found that the petitioner had made payments to the Food Corporation of India and the Collector, Puri. However, as no order for refund was mentioned in the assessment, the Commissioner refused to entertain the applications for refund. The central issue in the writ application was whether a claim for refund should be based on the assessment order to exercise power under section 14-A of the Act.

Section 14-A, which was repealed by Act No. 23 of 1983, was considered in light of the Orissa General Clauses Act, 1937. The Court highlighted that despite the repeal, rights accrued under the provision could still be exercised as per the General Clauses Act. The provision allowed for a refund of tax in specific cases, not controlled by other provisions of the Act or any other law, except for the limitation period provided in section 14.

The Court emphasized that the Commissioner's rejection of the refund applications was unjustified as it was based on extraneous factors. The order was deemed unsustainable in law and was quashed. The Commissioner was directed to reevaluate the refund claims, ensuring compliance with the period of limitation, verification of payment by the dealer, and confirmation that the amount was not payable under the Act.

The petitioner was instructed to appear before the Commissioner for a fresh hearing, with the Commissioner required to dispose of the matter by a specified date. The writ application was allowed, and a writ in the nature of mandamus was issued to the Commissioner, with no costs imposed. Both judges concurred on the decision, and the writ petition was granted.