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TMI Blog1968 (7) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the returns submitted for the quarters ending with the accounting year on 14th day of Sravan Sudi 2015 and Rs. 6,885.99 nP. for the four quarters ending with the accounting year on the 14th day of Sravan Sudi 2014 respectively on account of sales tax along with the returns. After deducting the amounts assessed by the Commercial Tax Officer for these two years, the petitioners were entitled to a refund of Rs. 6,758.20 nP. and Rs. 6,259.88 nP. for these two accounting years. The petitioners submitted refund applications before respondent No. 1 in accordance with the provisions of the Bengal Act but respondent No. 2 failed within 30 days from the date of submission of such refund application or even thereafter to pass orders for refund in writing and communicate the same to respondent No. 1 for issue of refund payment order (cash) as called for by the petitioners. Not having received the amount, the petitioners again sent a letter dated 9th December, 1963, calling upon respondent No. 2 for issue of refund payment order of the above amount. But in spite of receipt of such a letter no steps were taken. The petitioner then moved this Court in writ jurisdiction and obtained t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application by a dealer for refund of the excess tax should be made to the assessing authority. Rule 60 enables the assessing authority to record and sanction refund and to communicate the order to the applicant except as provided in rule 61 and rule 62, if it is satisfied that such refund is due. Rule 61 confers power upon the Commercial Tax Officer to refund to the extent of Rs. 250 beyond which the application together with his opinion is required to be submitted by him to the Assistant Commissioner for orders. Rule 62 makes it obligatory upon the Assistant Commissioner to record his order in writing and to communicate to the Commercial Tax Officer for necessary action within 30 days from the date of submission of the application under rule 61. It will thus be seen that there is a difference of language between rule 60 and rule 62. Whereas under rule 60 the assessing authority, if he is satisfied that the refund is due, is to record the order sanctioning the refund. Rule 62 does not provide only for recording an order sanctioning refund but makes it obligatory upon the Assistant Commissioner to record his order upon the application submitted by the assessing authority within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, what happened was that after the applications by the petitioners were filed in compliance with rule 59, the Commercial Tax Officer submitted the applications together with his opinion to the Assistant Commissioner. Thereafter, the Assistant Commissioner entered into correspondence with the Commissioner and in consultation with him or at his suggestion withheld the refund of the respective amounts claimed by the petitioners on the view that as the petitioners were carrying on business under different trade names outside West Bengal, the impugned assessments were liable to be reviewed as they could not be treated as branches of the same partnership firm but should be treated as separate legal entities; even in doing so excepting the letter addressed by the Assistant Commissioner to the Commissioner dated 17th August, 1963, no order in writing was made by the Assistant Commissioner. In my view, the decision or action taken by the Commissioner or the Assistant Commissioner withholding the refund is entirely misconceived and cannot be supported. The true effect of the letter, it seems to me, written by the Assistant Commissioner to the Commissioner (annexure Y to the affidavitin-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ignore his previous order upon the application for refund. That being so the respondents have no power to withhold the refund of excess tax and any such decision or action to the contrary is liable to be struck down as invalid. It was next contended by the learned Government Pleader that no writ petition is competent for refund of any tax even if it is found to have been paid by the dealer in excess of the amount. I am unable to accept such a broad contention. Reliance was, however, placed on a decision of the Supreme Court reported in Suganmal v. State of Madhya Pradesh[1965] 16 S.T.C. 398; A.I.R. 1965 S.C. 1740. , and it was submitted that ordinarily a writ of mandamus directing the State to refund the money is not maintainable as a suit can always be instituted against the authority which illegally collected such tax for which it is open to the State to take all possible defences to the claim which cannot be appropriately raised and considered in the exercise of writ jurisdiction. I am afraid, this case is of no assistance to the respondents. In this case, there was assessment against the aggrieved assessee under the Indore Excess Profits Duty Order, 1944, but on appeal thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such order, as already indicated by me earlier, excepting the matters provided under section 12 and the prescribed rules 59 to 62 of the Rules for refund of the excess amount, all other considerations will be totally irrelevant and extraneous. In that view of the matter, the entire decision or action withholding refund of the amounts claimed by the petitioners by the respondents must be struck down as invalid. The other contention of Mr. Chakravorty is that the impugned notices starting suo motu review of both the assessment orders in question are wholly incompetent and without jurisdiction. It was argued that the grounds on which such review has been initiated are absolutely untenable because the petitioners carry on business as a partnership firm under different trade names as one unit. The partners being the same, they are entitled to carry on business under different trade names at different places but because the firm carries on business under different names, that by itself will not constitute these businesses under different trade names as separate independent businesses. It is said that the firm has no existence apart from these partners. Reliance was placed on several de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a consideration of proper materials or evidence that may be adduced. It is true that under the certificate of registration it is also mentioned that the partnership firm is also carrying on business under different trade names in different places but that fact by itself does not conclusively establish that the businesses carried on by the partners, although under different trade names, form one unit. These questions again cannot be conveniently decided by this Court in writ jurisdiction. Considering all these it cannot be held that the Commercial Tax Officer had no power or jurisdiction to issue notices for reviewing the impugned assessments of his own motion. I, therefore, find no substance in the contention raised by the petitioner. I make it clear, however, that all the objections raised by the petitioners are kept open and I do not express any opinion on them. The petitioners will be at liberty to press all such objections or any other objection available to him under the law before the Commercial Tax Officer in the impugned proceeding for review. The result is the petitions in C.R. Nos. 875(W) and 876(W) succeed. Entire decision or action of the respondents not to refund t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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