9911796707
TMI Blog1985 (12) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to the same petitioner for a different assessment year. As a result of the order passed by the Tribunal, the petitioner is entitled to the refund of Rs. 3,80,641 paid by him towards the tax for the year 1968-69. The order of the Tribunal was pronounced on 20th October, 1983, and communicated to the petitioner on 2nd January, 1984. On behalf of the petitioner, an application was filed to the 1st respondent on 1st December, 1984, for refund of the tax. But however there was no response from the 1st respondent or the 2nd respondent. In the three counter-affidavits filed on behalf of the respondents 1 and 2, it is stated that the petitioner was assessed to tax by the Commercial Tax Officer, Mahaboobnagar, for the assessment year 1968-69 on 2nd August, 1973, on a net turnover of Rs. 1,31,89,451.43. The Assistant Commissioner dismissed the appeal and the Sales Tax Appellate Tribunal in T.A. No. 206/77 dated 20th October, 1983, set aside the assessment order on the ground that the assessment is barred by time. The department filed a tax revision case before this Court against the order of the Sales Tax Appellate Tribunal. The letter dated 1st December, 1984, by the petitioner seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicating the turnovers and payment of taxes thereon voluntarily under rules 15 and 17 do not extinguish even if the assessment is not made and the liability to pay the tax on the voluntarily declared turnover subsists. The learned counsel for the petitioner contended that on annulling the assessment by the Appellate Tribunal and also dismissing the tax revision case as against the said order of the Tribunal, the petitioner is entitled to refund of tax paid by him as provided under section 33-B of the A.P. General Sales Tax Act and the department is not justified in withholding the refund in spite of the demand. The learned Government Pleader contended that the assessment was set aside on the sole ground of limitation and as such the merits of levy of sales tax and the assessment are not considered and the petitioner is not entitled to the refund. It is further contended that the tax paid voluntarily pursuant to A-1 returns is not liable to be refunded as the refund under section 33-C is concerned only to the subject-matter of appeal wherein relief is given. In any event, the petitioner is not entitled to the refund as he collected the sales tax from the purchasers and the discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee for refund of the amount as a sequel to the order passed in appeal or other proceeding under the Act and the assessing authority is obligated to refund the amount without awaiting claim at the instance of the assessee. This provision is a corollary to the result in the appeal. In the event of relief in the appeal the amount to the extent of relief given by the appellate authority is refundable. Section 33-C is designed to enable the assessing authority to withhold the refund in the event of the pendency of further remedy at the instance of the department. The power to withhold the refund is hedged in by two conditions, namely, that the refund is prejudicial to the interest of the revenue and it must be done with the prior clearance of the Deputy Commissioner. The learned counsel for the petitioner relied upon Lakshminarayana v. Commercial Tax Officer [1974] 33 STC 558 (AP). In this case, the assessee paid tax pursuant to the provisional assessment and demand by the sales tax authorities and the assessment was made for the year 1959-60. On appeal, the Assistant Commissioner set aside the assessment order and remanded the case for fresh disposal. Thereafter the authorities close ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut till the tax payable is ascertained by the assessing authority under section 10, or by the assessee under section 7(2), no tax can be said to be due within section 16(1)(b) of the Act, for till then there is only a liability to be assessed to tax." In R. Gopal Ramnarayan v. Third Income-tax Officer [1980] 126 ITR 369 (Kar) the assessee-firm paid a sum of Rs. 94,179 as advance tax and also a further sum of Rs. 4,880.89 was deducted as tax at source and the sum of Rs. 2,367 towards self-assessment was paid for the assessment year 1973-74 and similarly for the assessment year 1975-76 the amounts under the same heads were paid. On appeal, the Appellate Tribunal annulled the assessment orders on the ground that the Income-tax Officer signed the assessment orders and quantified the tax due in a separate sheet annexed to the assessment order. The Revenue did not pursue the matter further. Thereafter, the petitioner made a demand for refund of the tax paid and this request was rejected by the Income-tax Officer. On the writ petition filed by the assessee, Chandrakantaraj Urs, J., of the Karnataka High Court while considering the contention of the Revenue that the income as and when re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the provisional assessment and along with A-1 returns, the petitioner paid total amount of Rs. 1,84,202. This amount is merged in the final assessment order and the demand pursuant to the final assessment order is Rs. 3,80,641. The disputed tax and the subject-matter of appeal before the first appellate authority and the Appellate Tribunal as well is confined to the levy of tax of Rs. 1,84,202. The Appellate Tribunal is admittedly seized of the consideration of the validity of levy of disputed tax of Rs. 1,96,439 only. The subject-matter of the appeal before the first appellate authority as well as the Appellate Tribunal is confined to the disputed turnover and the tax on such disputed turnover is Rs. 1,96,439. The learned counsel for the petitioner contends that when the assessment is annulled, the entirety of the amount paid under such assessment order is refundable. Section 33-B is prefaced by caption "refund on appeal" and the assessee is entitled to refund of the amount forming the subject-matter of appeal and in the event of allowing the appeal in toto, the assessee cannot aspire for more relief than that sought for in the appeal and the appellate authority cannot travel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Pleader further contended that the tax sought for refund is already collected by the assessee from the consumers and there is absolutely no evidence or material in support of this contention. Further it is contended that the petitioner should not be permitted to have unjust enrichment and the learned Government Pleader relied upon the decision in State of Madhya Pradesh v. Vyankatlal [1987] 64 STC 6 (SC); AIR 1985 SC 901 wherein it is held that the recovery by the sugar factory of the "sugar fund" the difference between the supply price and the ex factory price paid by it under the notification dated 14th January, 1950 is not permissible when the burden of paying the amount was transferred by the factory to the purchasers and the factory was not obliged to pay the amount from its coffers and grant of such refund amounts to unjust enrichment. This decision is far removed from the situation in the instant case. The respondents are directed to refund the sum of Rs. 1,96,439.11 to the petitioner within one month from the date of the receipt of this order. Writ petition partly allowed. No costs. Advocate's fee Rs. 150. Writ petition partly allowed. - - TaxTMI - TMITax - CST ..... X X X X Extracts X X X X X X X X Extracts X X X X
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