9911796707
TMI Blog1965 (12) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... in yarn for the period November 13, 1947, to November 1, 1948. The respondent paid the amount of tax assessed on July 8, 1952. There- after relying upon section 13 of the C. P. and Berar Sales Tax Act, 1947, he applied on November 20, 1952, to the Assistant Commissioner of Sales Tax for an order refunding Rs. 873-10-0 on the plea that in the turnover of his business were included dyeing charges which were not taxable under the Act, and which since the order of assessment were held by the Board of Revenue to be not taxable. The Assistant Commissioner rejected the application, and the order was confirmed by the Commissioner of Sales Tax in appeal. The Board of Revenue, Madhya Pradesh, however, set aside the order and ordered that the case be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee in the present case." The High Court held that by section 13 of the Act as originally enacted, the respondent had "a valuable right to ask for refund of the amount of the tax paid by him in excess of the amount lawfully due" and that "the right to obtain a refund being a substantive right given to the respondent by the statute and not being a matter of mere procedure", this right could not be taken away except by clear and unambiguous words, and section 13 as amended was not legislation which satisfied that test. The High Court accordingly answered the questions as follows: "1. Ruling No. 57 is good law, and, in our opinion, the Board was right. 2.. Section 24 of Act 20 of 1953 has been validly enacted. 3.. The new secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler applying in that behalf, of any amount of tax or penalty paid by such dealer in excess of the amount due from him under the Act. The section implies that refund may be granted only of the amount which is not lawfully due, and whether a certain amount is lawfully due or not, must be determined by the Assistant Commissioner in making the order of assessment or reassessment. The order of the Assistant Commissioner is undoubtedly not final: it is liable to be set aside in appeal or modified in a revision application under the provisions of the Act. But so long as the order passed by the Assistant Commissioner is not so set aside or modified, a dealer cannot call upon him to ignore the previous order, and grant refund contrary to the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent to decide all the questions which arise before him: his orders, it is true, are liable to be set aside in appeal or modified in revision as provided by the Act. But under the Act the Assistant Commissioner-who exercises the powers of the Commissioner-has no power to review his decision, nor is he authorised to ignore his previous order, and to pass an order for refund inconsistent with his previous order which has not been set aside by appropriate proceedings. It is somewhat unfortunate that a later decision of the Bombay High Court in State of Bombay v. Purshottamdas Dwarakadas Patel [1957] 8 S.T.C. 379.,-a case arising under section 13 of the Bombay Sales Tax Act, 1946-which decided the identical question which arose in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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