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TMI Blog1991 (9) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 1982 and a sum of Rs. 89,030.75 was shown as paid in excess as tax for the period of four quarters ending on the last day of March, 1983. The applicant s case is that as there was a dispute regarding the rate of tax to be applicable on sales of carpets, the applicant had paid these amounts as tax at the rate of fifteen per cent on the sales of carpets, in order to avoid any confrontation with the sales tax authorities. Subsequently, judgment was delivered by the Calcutta High Court on November 13, 1979 in the case of Madanlal Shroff v. State of West Bengal to the effect that sales of carpets would not attract any tax. Relying on this judgment of Calcutta High Court, the applicant stopped collecting sales tax from his customers till the end of 1987. The Commercial Tax Officer concerned had, in the meantime, disposed of the assessment cases of the applicant for the aforesaid four years and notices of demand in form VII were sent by the respondent No. 1 to the applicant, showing the aforesaid sums as paid in excess as tax. The applicant has prayed for refund of those amounts paid in excess as tax, along with interest, on alleging that in spite of writing letters to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 1 in respect of the disputed four years have been kept in abeyance by orders dated April 2, 1991 till the final disposal by this Tribunal of revision case No. 432 of 1990 and the present case. It is contended that it is untrue that the applicant stopped collecting sales tax from customers till the end of 1987, relying on a judgment dated November 13, 1979 of the Calcutta High Court in the case of Madanlal Shroff v. State of West Bengal. The respondents case is that the applicant has all along been realising tax from the customers on sale of carpets by him. 4.. The applicant has filed an affidavit-in-reply to the effect that once excess payment of tax is shown in an assessment order, it is obligatory on the part of the respondents to issue refund payment order immediately. The applicant has reiterated his case that he has not collected any sales tax till the end of 1987 in his affidavit-in-reply. 5.. At the time of hearing Mr. Bhattacharjee, the learned advocate for the applicant contended that on the basis of the provisions in section 12 of the Act of 1941 read with rule 55(1A) of the Rules of 1941, if any amount is found on assessment to have been paid in excess by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Representative is that, in the facts and circumstances of this case, any refund of the amounts shown as paid in excess in the notices issued in form VII to the applicant would result in unjust enrichment of the applicant, as the applicant had collected tax from the customers on sale of carpets, and as it is not possible for the applicant to return to the numerous purchasers the amount of tax collected. 7.. The pendency of the application before this Tribunal, being RN-432 of 1990, or the suo motu revision cases Nos. 26 of 1990-91, 28 of 1991, 30 of 1991 and 31 of 1991, started by the Assistant Commissioner of Commercial Taxes on the basis of proposals by the respondent No. 1 for the revision of the assessment orders for the disputed four years, cannot be a ground for refusing refund of the amounts paid in excess as tax by the applicant, provided the application under section 8(1) of the West Bengal Taxation Tribunal Act, 1987 is found to be filed within a reasonable period and without inordinate delay. In this respect we respectfully agree with the decision of the Calcutta High Court in the case of State of West Bengal v. Satyesh Ch. Lahiry [1979] 44 STC 246, which was relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Kerala v. Aluminium Industries Ltd.) was decided by a Bench of seven Judges. It was a case of refund of sales tax, paid by mistake. These decisions of the honourable Supreme Court by a Bench of five Judges and a Bench of seven Judges will hold the field in the matter of limitation. The case reported in AIR 1980 SC 1037 (Shiv Shanker Dal Mills v. State of Haryana) was decided by a Bench of three Judges. While making it clear that the Supreme Court in that case was not pronouncing its views on what should be the period of limitation or whether article 226 should apply, it observed that where public bodies, under colour of public laws, recovered people s money, later discovered to be erroneous levies, the dharma of the situation admitted of no equivocation and there was no law of limitation, specially for public bodies, on the virtue of returning what was wrongly recovered to whom it belonged. On the basis of these observations in the case of Shiv Shanker Dal Mills v. State of Haryana AIR 1980 SC 1037, we are unable to hold that the present application under section 8(1) of the Act of 1987, is not barred by limitation in spite of the two aforesaid decisions of the honourable Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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