2004 (7) TMI 624

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..... der section 17(2) of the Act for the aforesaid period by the Deputy Commissioner of Commercial Taxes, Patna Special Circle, Patna. Before the assessing authority the applicant claimed exemption from payment of sales tax in course of export to Nepal for Rs. 41,68,042.29 and filed customs certificates of Nepal. After verification, the assessing officer allowed the claim. There was excess payment by the petitioner and as such he made a claim for refund of Rs. 53,899.88. Under the relevant provision, the matter was sent by the Deputy Commissioner of Commercial Taxes, Patna, to the Joint Commissioner of Commercial Taxes, for counter-signing. The Joint Commissioner wanted to look into the custom certificates but he did not find them on the assess .....

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..... he petitioner was also not the matter to be decided by the Tribunal? " 3. Learned counsel for the parties at the very outset submitted that the Tribunal has not framed the questions of law correctly. So far question of law No. 1 is concerned that does not raise any question of law which is to be answered by this Court. So far question No. 2 is concerned, it is, submitted that the same should be re-framed with a view to bring out the real issue between the parties. 4.. After hearing the learned counsel for the parties, we find that the real issue between parties is as to whether the Joint Commissioner of Commercial Taxes before whom the matter of refund was pending for counter-signing was justified in law in interfering with the assessmen .....

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..... inted under section 9 for the purpose of satisfying himself as to the legality or propriety of such order and after examining the record and on inquiry, if any made, pass appropriate order. According to subsection (5) of section 46 of the Act, an opportunity of hearing is required to be given to the affected person. 8.. The question for consideration is whether the Commissioner can exercise this power while exercising another jurisdiction in the matter of refund. 9.. The wording of sub-section (4) of section 46 of the Act is very wide and the Commissioner may exercise the suo motu power when the matter comes to his notice either by filing petition by any party or on his own motion or suo motu. The fact that the records were available befo .....

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