9911796707
TMI Blog1988 (4) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in second appeal directed refund of tax for the year 1967-68. On 30th December, 1974 the appellant filed a refund application. On 31st January, 1975 the Assistant Commissioner of Sales Tax, Sambalpur Range, in appeal directed refund of sales tax for assessment years 1970-71 and 1971-72. On 4th April, 1975 the appellant filed refund applications. The refund applications referred to above were not promptly attended to by the S.T.O., but on 15th March, 1977 he intimated the appellant by letters (annexure 1 series) that the applications were defective in certain particulars requiring rectification. On 17th March, 1977 the appellant filed a memo rectifying the defects. Thereafter on 19th March, 1977 the S.T.O. passed orders on the refund applications and made adjustments against outstanding sales tax demand payable by the appellant for the assessment years 1973-74, 1974-75 and 1975-76. 3.. On 30th March, 1977 the appellant filed three applications (annexure 2 series) before the S.T.O. claiming interest on the amounts refunded/adjusted under section 14-C of the Act. After giving the appellant an opportunity of showing cause (annexures 3 and 4) the S.T.O. by orders dated 16th J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner and a Deputy Commissioner to assist the Commissioner and they shall exercise such powers and perform such duties as may be conferred or imposed by or under the provisions of this Act within such local area as may be assigned to them by the Commissioner. 14.. Refunds.-The Commissioner shall, in the prescribed manner, refund to a dealer applying in this behalf any amount of tax, penalty or interest paid by such dealer in excess of the amount due from him under this Act, either by cash payment or by deduction of such excess from the amount of tax, penalty or interest due in respect of any other period: Provided that no claim to refund of any tax, penalty or interest paid under this Act, shall be allowed unless it is made within twenty-four months from the date on which the order of assessment or order imposing penalty, as the case may be, was passed or from the date of the final order passed on appeal, revision or reference in respect of the order earlier mentioned, whichever period is later: Provided further that no claim to refund of any tax, penalty or interest paid under this Act shall be allowed in cases where there is an order for reassessment, until the reassessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest, if any paid by him in excess of the amount and interest due or security paid shall be made to the Commissioner in form XII and shall clearly specify the grounds upon which the refund is claimed. (2) If the refund application is found to be incorrect, incomplete or otherwise not in order, the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be, after making such enquiry as he considers necessary, and after giving the dealer an opportunity of being heard, pass such orders thereon as he thinks fit. 40.. Order sanctioning refund.-When the Commissioner is satisfied that a refund is due, he shall record an order sanctioning the refund and payment of interest, if any, as provided under section 14-C and communicate the order to the applicant. 42.. Payment by adjustment-Refund adjustment order.-Where amounts are due against the dealer, the Commissioner shall issue a refund adjustment order in form XIV accompanied by a challan for adjustment. 80.. Revision by the Commissioner suo motu.-The Commissioner may on his own motion at any time within three years from the date of passing of any order by the Sales Tax Officer or within two years from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner either upon application, or on his own motion to revise any order made under the Act or the Rules made thereunder by any person other than Tribunal appointed to assist him under section 3(3), including Additional Commissioner and Deputy Commissioner of Sales Tax. Therefore, normally, when an Additional Commissioner which includes a Special Additional Commissioner has passed an order, the Commissioner can revise his order either upon application or on his own motion. There is, however, an exceptional provision in clause (d) of sub-section (4) of section 23, according to which, the Commissioner with prior approval of the State Government may delegate his revisional power under sub-section (4) to another person appointed under section 3(3), such as, an Additional Commissioner or a Deputy Commissioner. By Notification No. 5118 dated 10th February, 1971, the Commissioner with prior approval of the State Government delegated the powers exercisable by him under section 23(4)(a) of the Act and rule 79 of the Rules to the Special Additional Commissioner of Sales Tax and directed that the powers and duties under the said provisions shall be exercised and discharged by him. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has a general power of revision of all orders passed by the Sales Tax Officer, Assistant Commissioner, Additional Commissioner and Special Additional Commissioner under any of the provisions of the Act, if he considers that any such order was passed erroneously prejudicial to the interest of the Revenue. The Commissioner initiated the suo motu revision proceeding in purported exercise of jurisdiction under rule 80 and ultimately passed the impugned order (annexure 9). With regard to the legality and applicability of rule 80 the following aspects need consideration: (1) Can the Commissioner in purported exercise of jurisdiction under rule 80 revise an order passed by an authority to whom he has delegated his function under the Act? and (2) Is rule 80 an excess of delegation of power not envisaged in section 29(2)(s)(i) and (ii) of the Act? 8.. It is not difficult to consider the first aspect in view of the delegation of power by the Commissioner in favour of the Special Additional Commissioner under Notification No. 5118 dated 10th February, 1971 by which the Special Additional Commissioner exercised the power of revision of the Commissioner under section 23(4)(a) and (d) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statute but not under the Rules framed thereunder, particularly when the rule making power does not authorise for framing of such a rule. Rule 80 is, therefore, an excessive delegation of substantive quasi-judicial power in favour of the Commissioner which ex facie seems unsupportable. But this Court exercising its power as a court of appeal under section 23(4)(c)(i) cannot quash rule 80 being itself a creature of the statute. This rule could only be quashed in an appropriate proceeding under article 226 of the Constitution. 9.. On the above analysis, I am of the view that the Commissioner (respondent No. 2) acted without jurisdiction in passing the impugned order (annexure 9) which is unsustainable in law. 10.. In view of the conclusion reached above, it is strictly not necessary to decide the second question as to whether the appellant is entitled to interest under section 14-C of the Act, or is not entitled, because the applications filed by it were not duly constituted applications according to law until removal of the defects pointed out by the S.T.O. But I feel it necessary to decide the question to give finality to this judgment. 11.. The appellant claimed refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in rejecting the memorandum of appeal on the ground that limitation could not be condoned for delay in depositing the admitted tax was disapproved. The facts of this case are clearly distinguishable. In that case, the question of bar of limitation and condonation of limitation under section 5 of the Limitation Act was essentially in issue. In the present case, the question of bar of limitation was not in issue. Therefore, it could not be said that because the applications were barred by limitation, only after condonation of limitation it could be said that the applications were properly presented. On the other hand, in a recent decision of the Allahabad High Court reported in [1983] 54 STC 96 (Modi Industries Limited v. Commissioner of Sales Tax, U.P., Lucknow) it was held that there was no justification on the part of the Sales Tax Officer to commit delay for four years to dispose of a refund application. Setting aside the order of rejection, not only refund but interest was also allowed on the refundable amount. 12.. It is shocking to conscience that a Sales Tax Officer should keep quiet over the refund applications for a long time and then take quick action just to disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
