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TMI Blog1972 (2) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... irst respondent issued a notice dated 6th October, 1966, asking the petitioner to produce his account books for the year 1959-60 so as to enable him to make the assessment. The demand of the assessing authority calling upon the firm to produce the account books being illegal and untenable, the petitioner filed a Writ Petition No. 1969 of 1966 on the file of this court. When this writ petition came up for hearing before a Bench consisting of Jaganmohan Reddy and Kumarayya, JJ. (as they then were), on 6th February, 1967, the Government Pleader represented to the court that the proceedings had been closed and there was no question of any assessment. On that assurance the court dismissed the writ petition. The petitioner avers that as the assessment proceedings were dropped by the authorities concerned, there was no tax leviable for the year 1959-60. The petitioner sent a notice to the second respondent, Commissioner of Commercial Taxes, asking him to pay back the amount illegally detained by him without any power or authority whatsoever. The second respondent had not complied with the notice. In this writ petition, the petitioner seeks a writ of mandamus directing the respondents to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence produced, if rice sold was consumed inside the State. The Deputy Commercial Tax Officer shall now verify and pass fresh orders fixing their liability at the reduced rate of 3 per cent to the extent the dealer's transactions are within the terms of the G.O. Ms. No. 27 Revenue, dated 4th January, 1959. So far as these two disputed items are concerned, the matter is remitted back to the assessing authority for fresh disposal according to law in the light of the observations made above." From the aforesaid extract, it is very clear that the order of the first respondent was completely set aside by the appellate authority and a direction was given to the assessing authority in regard to the tax on Rs. 68,641.09 to verify the transactions and conduct inquiry into the matter and pass fresh orders pursuant to the result thereof. In regard to the levy of tax at 3 per cent as claimed by the petitioner it was ordered that the assessing authority will verify whether the aforesaid transactions are within the terms of G.O. Ms. No. 27 Revenue, dated 4th January, 1959, and then fix liability at the reduced rate of 3 per cent. The last portion of the order is very clear that the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer whatever be his turnover for the year, shall pay a tax for each year at the rate of three paise on every rupee of his turnover. Every casual trader shall pay a tax at the rate of three paise on every rupee of his turnover: Provided that if and to the extent to which such turnover relates to articles of food or drink............ (4) The taxes under this section shall be assessed, levied and collected in such manner, as may be prescribed;................." Section 33 relates to refunds; it reads: "33. Refunds.-The assessing authority or the licensing authority, as the case may be, shall refund the tax or the licence fees, if any, paid provisionally by an assessee or licensee for any particular period, if it is found to be in excess of the tax or the licence fees payable by him for the said period, or, at the option of the assessee or licensee, adjust such excess towards any tax or licence fees due in respect of any other period: Provided that the assessing or the licensing authority, as the case may be, may first apply the excess paid in respect of any period towards the recovery of any amount in respect of which a notice of demand may have been issued, and shall then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness 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 in appeal. The Board of Revenue, Madhya Pradesh, set aside the order. During the pendency of the proceedings before the taxing authorities section 13 of the Act was amended with retrospective effect taking away the right to refund and the State of Madhya Pradesh moved the Board for a reference to the High Court. The High Court answered the question against the State which preferred the appeal before the Supreme Court. Section 13 of the Madhya Pradesh Sales Tax Act reads thus: "The Commissioner shall, in the prescribed manner and either by cash payment or, at the option of the dealer, by deduction of such excess from the amount of tax due in respect of any other period, refund to a registered dealer applying in this behalf any amount of tax or penalty paid by such dealer in excess of the amount due from him under this Act: Provided that no claim for refund shall be allowed unless it is made within twelve months from the date on which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Inland Revenue[1926] A.C. 37. and extracted the following passage from that decision: "Now, there are three stages in the imposition of a tax. There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment, that ex hypothesi had already been fixed. But assessment particularizes the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay." In Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income-tax (Central), Calcutta[1971] 28 S.T.C. 672 (S.C.)., the Supreme Court observed that although that liability cannot be enforced till the quantification is effected, the liability for payment of tax is independent of the assessment. In the two aforesaid cases, the question for determination was not whether, for purposes of refund of tax, mere liability to pay is sufficient and whether quantification of tax is not necessary. In the two cases, the assessment orders had been made and the tax was quantified and the learned Judges were not called upon to decide the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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