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TMI Blog2003 (8) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of Rs. 19,588, i.e., total amount was Rs. 2,15,463 and for the period ended on March 31, 1999, the tax was Rs. 2,25,344 and surcharge of Rs. 22,534, i.e., amount of Rs. 2,47,878. The tax under the Act, 1994 is deducted at source by the payers and certificates of deduction are also issued by them. The tax at source of the petitioner was deducted for the period ending March 31, 1998 was Rs. 3,01,743 against the actual total amount of Rs. 2,15,473, i.e., excess amount of Rs. 86,271 was deducted by the payers. Similarly, for the period March 31, 1999, the tax of Rs. 3,85,130 was deducted at source against the actual amount of Rs. 2,47,878, i.e., excess of Rs. 1,37,252 was deducted. 3.. On the basis of the return filed by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted by the assessing authority and the return under law thus was held to be complete and correct. In the paragraph No. 5 of the affidavitin-opposition, it is denied that no excess payment was made by the petitioner but at the time of argument no such point was taken on behalf of the respondent. On the contrary, it was submitted that the refund could not be made since the application was not made under sub-section (4) of section 46A of the Act, 1994. Instead of filing the application under section 60, according to the learned State Representative the dealer ought to have filed an application under section 46A of the Act, 1994. 7.. In view of the submission made, it is necessary to quote the relevant provisions of section 46A and sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im under this Act, either by cash payment or by deduction or adjustment of such excess from the amount of tax, penalty or interest due in respect of other period. 8.. Under section 60 of the Act, 1994 refund is to be given in the manner prescribed under the rules and such rules have been enumerated in Chapter XIII of the Rules, 1995. The relevant rules for the purpose of section 60 are rules 181(4), 194 to 197, 269 and 270. The Commissioner for the purpose of section 60 according to the appendix-II, serial No. 19 means, the Assistant Commissioner, Commercial Taxes/Commercial Tax Officer by way of delegation of power. Therefore an application for refund has to be made to the designated officer and not to the Commissioner direct. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, 1994 and sub-section (4) this section itself provides the provision for refund of excess payment. Under clause (a) of sub-section (4) of section 46A, a dealer has to bring to the notice of the Commissioner within six months from the date of the deemed assessment that excess amount of tax was paid by him due to his error in fact or in law . It is the contention of the learned lawyer for the petitioner that deduction since was made by the payer the error, if any, was committed by him and not by the dealer. Therefore, the provision of sub-section (4) is not applicable in the present case. In our opinion, the word his does not categorically mean the person who actually deducted the tax. Here, the payer deducted the tax on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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