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TMI Blog1965 (3) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... for proceeding afresh. The petitioner was not satisfied with the appellate order and it filed a revision against it. By an order dated 15th September, 1964, passed by the Judge (Revisions) Sales Tax the appellate order was set aside and the matter was remanded back to the Judge (Appeals) for rehearing. The result of this order was that the assessment order which was set aside in appeal was again revived. At this stage I may mention that the learned counsel for the petitioner stressed that on the setting aside of the assessment order no liability to pay sales tax remained and as such the petitioner was entitled to the refund of the entire amount of Rs. 4,41,234 that had been paid by it as advance tax. It was urged that till an assessment order is passed the amounts that are deposited by a dealer along with the filing of the return under rule 41(2) continue to be the dealer's property and he can demand its refund and that to such a deposit section 29 of the U.P. Sales Tax Act applies. The learned Standing Counsel, on the other hand, urged that the liability to tax was created by section 3 of the Act and not by the passing of the assessment orders. Rule 41(2) enables a dealer to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for nearly ten lacs was considerably liquidated and, according to the petitioner, only a sum of Rs. 2,84,482 remained to be paid. According to the petitioner, refund of sums in excess of this balance was due to it for the past years owing to the pendency of appeals. The petitioner's case further is that the advance tax of Rs. 4,41,234 for the assessment year 1955-56 was also refundable to the petitioner. An application dated 12th July, 1963, for refund of the advance tax paid for 1955-56 was moved by the petitioner. The Sales Tax Officer on 30th of July, 1963, rejected this application (See annexure B to the rejoinder-affidavit). For all these reasons the petitioner stopped payment of further monthly instalments. As the payment of instalments was stopped by the petitioner the Sales Tax Authorities imposed a penalty on the petitioner to the tune of Rs. 32,715. On 5th August, 1964, the Collector addressed a letter to one of the petitioner's directors informing him that a sum of Rs. 3.17 lakhs is in arrear as sales tax against the petitioner-company and inviting the company to send a proposal for liquidating the arrear by the end of March, 1966. The petitioner's representative ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliefs against this order of 13th November, 1964. This order is challenged on two grounds: firstly, that the agreement dated 18th September, 1964, was solemnly arrived at and was binding and could not be varied unilaterally by the Collector and secondly, in passing the impugned order without having afforded the petitioner an adequate opportunity of being heard, the Collector violated the principles of natural justice. The second ground has no force. The order dated 6th November, 1964, was conveyed to the petitioner on 7th November, 1964. Admittedly the petitioner-company approached the Collector and discussed the matter with him and requested him to adhere to the earlier agreement. Thus it was heard in the matter. The subsequent order dated 13th November, 1964, did modify the proposal conveyed on 7th November, 1964. This latter order can, therefore, not be characterised as having been passed without hearing the petitioner. The first ground is supported by two submissions: firstly, that the arrangement arrived at on 18th September, 1964, was a regular contract and could not be varied unilaterally by the State Government. It is urged that this contract can be enforced inter parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be set aside at the mere whim of the court or of the decree-holder. Order XX, rule 11, Civil Procedure Code, authorises the Court which passes the decree to grant an order for instalments on the application of the judgment-debtor and with the consent of the decree-holder. In this case the Sales Tax Officer had passed the assessment order, the demand created whereunder is sought to be recovered. The Sales Tax Officer would be in the position of the court which passes the decree. The order dated 18th September, 1964, has not been passed by the Sales Tax Officer, but by the Additional Collector, who was acting as the recovery authority. Prima facie Order XX, rule II, Civil Procedure Code, will not be applicable to the recovery authorities as they are comparable to the execution Courts. But, the learned counsel for the petitioner urged that Order XX, rule II, Civil Procedure Code, is applicable to execution courts. Two Full Benches of our Court have taken the view that Order XX, rule II, Civil Procedure Code, is not applicable to execution courts. In Maharaj Kumar Mahmud Hasan Khan v. Moti Lal BankerA.I.R. 1961 All. 1. the majority held that the execution court cannot vary the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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