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TMI Blog2009 (5) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner, Commercial Tax, nor the memorandum was signed by the authorised person. The finding and order recorded by the Commercial Tax Tribunal, Dehradun, in this regard is liable to be set aside. We hold that the three second appeals filed by the Commissioner, Commercial Tax, before the Tribunal were maintainable against order of the Joint Commissioner, and were duly signed by the person authorized. Question of law No. 1 stands answered in favour of the Revenue/appellant. Where under a statute contractee has been made an agency to collect the tax in the form of deductions in the payment, if the amount of tax is deducted by such agency, the assessee (dealer) cannot be made liable to pay the same tax again. But if such deduction is found false or the T.D.S. certificate is found not genuine, it cannot be said that the dealer (assessee) is not liable to pay the tax demanded by the A.O. Accordingly, question of law No. 2 stands also answered in favour of the Revenue/appellant. - 4,6,8 of 2008 - - - Dated:- 4-5-2009 - PRAFULLA C. PANT AND VEA B.S.RM , JJ. The judgment of the court was delivered by PRAFULLA C. PANT J. In all the above three revisions, following common qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 44,679, payment of Rs. 15,090 was found not to have been deposited in the account of the State Government. Originally, A.O. accepted the T.D.S. certificates as true and passed the assessment orders, but after coming to know that the aforesaid amounts were not deposited in the account of the State Government, as required under sub-section (5) of section 8D of the U.P. Trade Tax Act, 1948, he issued separate notices under section 22 of the U.P. Trade Tax Act, 1948, for each year, for rectification of mistakes, and after hearing the dealer (assessee/respondent), A.O. directed him to deposit the tax to the above extent. Aggrieved by said orders of the A.O., appeals were preferred by the dealer before first appellate authority, which were registered as Appeal No. 406 of 2006 (assessment year 1999-2000), Appeal No. 404 of 2006 (assessment year 2000-01) and Appeal No. 405 of 2006 (assessment year 2001-02). After hearing the parties, the Joint Commissioner (Appeal) II, Commercial Tax, Uttarakhand, Dehradun, vide his orders dated December 11, 2006, allowed the appeals and set aside the orders passed by the A.O., under section 22 of the U.P. Trade Tax Act, 1948. On this, the Revenue filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner would be such person for the purposes of orders passed by any authority. It is only as against the order of Commissioner that the State Government could be aggrieved person apart from the assessee. Apart from this, sub-rule (2) of rule 66 of the U.P. Trade Tax Rules, 1948, provides that the memorandum of appeal shall be signed by the appellant or his lawyer or his duly authorized agent. As to who is authorized to sign the memorandum of appeal, learned counsel for the appellant drew attention of this court to the Letter/ Order No. 2344, dated August 26, 1986 (annexure 8 to the appeal), whereby Deputy Commissioner was authorized to sign memorandum of appeal on behalf of the Commissioner, and vide Notification No. 173/Vitt Anu-5/Vya.Kar/2004, dated February 2004, (annexure 9 to the appeal), issued by the Government of Uttarakhand, it is provided that expression Joint Commissioner shall be read in place of Deputy Commissioner . Our attention is also drawn to authorization Order No. 802, dated June 11, 2007 (annexure 10 to the appeal), whereby the Joint Commissioners are authorized to sign the memorandum of appeal on behalf of Commissioners. For the reasons as discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habad High Court in Deora Electric Works case [1995] UPTC 241, we are unable to accept the said view in which it has been held that refund cannot be withheld for want of verification. In our opinion when the amount deducted at source is not deposited in the account of the Government of Uttarakhand, the said Government has no liability to refund any amount. In the present case before us the authority who issued T.D.S. certificates is Airport Authority of India not the Public Works Department or the Irrigation Department of the State Government. Had it been some Department of State of Uttarakhand the amount deducted by such Department could have been taken as the amount deposited in the Government treasury of the State, even if not deposited in proper head. Where the T.D.S. certificates are issued, which is not even verified nor any amount deposited with the State treasury or account, it cannot be said that the payment of tax has been made. In the present case, the amounts which were verified are already credited in favour of the dealer. It is only in respect of those amounts which were not deposited in the account of the State Government, A.O. has passed the orders under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing authority to recover the tax from the assessee, but where T.D.S. is found genuine and the contractee failed to deposit the amount in the Government treasury, the authorities concerned would proceed against such person under sub-section (6) or sub-section (7) of section 8D of the U.P. Trade Tax Act, 1948. Having heard learned counsel for the parties and after going through the referred case laws, we are of the view that where under a statute contractee has been made an agency to collect the tax in the form of deductions in the payment, if the amount of tax is deducted by such agency, the assessee (dealer) cannot be made liable to pay the same tax again. But if such deduction is found false or the T.D.S. certificate is found not genuine, it cannot be said that the dealer (assessee) is not liable to pay the tax demanded by the A.O. Accordingly, question of law No. 2 stands also answered in favour of the Revenue/appellant. For the reasons as discussed above, the revisions are allowed. The impugned orders dated July 11, 2007, passed by the Commercial Tax Tribunal, Uttarakhand, in Second Appeal No. 52 of 2007 (assessment year 1999-2000), Second Appeal No. 53 of 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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