2011 (7) TMI 1056 - HC - VAT and Sales Tax

Whether the applicant had realised tax from the customers? Held that - In the present case the applicant has not realised any tax in the bills of cash memos. Therefore, neither the provisions of section 8A(2) of the Act applies nor there is any contravention of the said provisions and, therefore, section 29A of the Act has no application. For the foregoing discussion, in view of the fact that there is no evidence that any tax has been realized what to say, the tax in excess of the tax due, any amount deposited cannot be refunded of the amount in excess of the tax due cannot be denied under section 29A of the Act, which is made applicable under the Central Sales Tax Act. On the facts and circumstances, the assessing authority is directed to refund the amount which is in excess of the tax due. Revision dismissed.

Summary

Issues:
1. Interpretation of Section 8A of the Central Sales Tax Act for determining turnover.
2. Application of Section 29A of the U.P. Trade Tax Act regarding refund of excess tax.

Analysis:
1. The petitioner contested the assessment years 1994-95 and 1995-96 under the Central Sales Tax Act, 1956, regarding the tax rate on staple fiber waste. The petitioner claimed a refund of excess tax deposited, which was denied under section 29A of the Act. The Tribunal upheld the denial based on the presumption that tax had been realized from customers. However, the petitioner argued that tax was paid on net turnover as per the statutory formula under section 8A of the Central Act, and no tax was separately charged in bills to customers. The court analyzed the provisions of section 8A of the Central Act, emphasizing that the formula aims to exclude tax from the sale price to avoid taxing the tax amount itself. The court noted that no evidence showed tax realization from customers, and if presumed, it should be at the two percent rate, not four percent as contended.

2. Section 29A of the Act deals with the disbursement of amounts wrongly realized as tax by a dealer. It mandates depositing such amounts for refund to the person from whom it was realized. In this case, the petitioner did not show any tax realization in bills, as confirmed by the assessing authority. The court concluded that since no tax was realized from customers, section 29A did not apply. Therefore, the excess tax amount, if any, should be refunded as it cannot be denied under section 29A. The court directed the assessing authority to refund any amount exceeding the tax due. Consequently, both revisions were dismissed.

This detailed analysis highlights the court's interpretation of the relevant legal provisions, the petitioner's arguments, the Tribunal's decision, and the court's final judgment regarding the refund of excess tax paid by the petitioner.