9911796707
TMI Blog2009 (11) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... r works contract and the contractors deducted T.D.S. of Rs. 20,822 during the year and deposited the same. Tax liability of petitioner No. 1-dealer was assessed under section 45(1) of the. West Bengal Sales Tax Act, 1994. By an order dated June 29, 2004 the assessing authority completed assessment and determined the dealer's tax dues at Rs. 2,16,762 and interest dues at Rs. 63,631. At the time of hearing the petitioner produced two tax deduction certificates to show that an aggregate amount of Rs. 20,822 was deducted at source. Admittedly the petitioner on September 27, 2004 paid Rs. 25,000 towards tax for the year 2001-02. The petitioner has alleged that under pressure from the assessing authority he was compelled to pay the said amount although it was not payable, in order to obtain C forms. According to the petitioner said amount was not payable on the basis of return and he never admitted any tax liability besides the amount mentioned in his returns and revised returns. A demand notice asking the petitioner to pay assessed tax dues was sent by post on October 27, 2005 and received by the petitioner on November 1, 2005. On receipt of the demand notice the petitioner filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng set aside the assessment order on the ground of limitation, assessment order did not become non-existent and it lost its legal effects only and therefore it cannot be said that payment was not in pursuance of an assessment order. Article 265 of the Constitution lays down in emphatic terms: No tax shall be levied or collected except by authority of law (emphasis Here italicised. supplied) Any tax legislation is required to contain charging section, (i.e., provision imposing tax and specifying taxable subject or object), sections providing the manner or method of collection or realisation of payable tax, and sections fixing rate of tax payable by the persons liable to pay tax. A tax duly levied can be collected only in accordance with the method and manner provided in the provisions of the taxing statute. There cannot be uncertainty or vagueness about the time or stage when liability to pay a tax arises and the manner in which tax is to be paid. A taxpayer is required to pay tax on the basis of his own estimation or calculation (normally known as self-assessment as disclosed or declared in the tax-return) subject to acceptance of such self-assessment or any determination made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contains general provision for assessment (i) if no returns are furnished, (ii) if the Commissioner is not satisfied that the returns are correct or complete and (iii) if upon subsequent discovery of any new material or upon verification under section 30(7) the Commissioner has reasons to believe that the dealer has not duly and faithfully disclosed his turnover of sales and other relevant particulars and he may be liable to pay more tax under the Act than shown in the returns. Section 60 of the 1994 Act makes it imperative for the Commissioner to refund to a dealer any amount of tax, penalty or interest paid by such dealer in excess of the amount due from him under the 1994 Act. To resolve the controversy over right to claim refund of tax paid in excess of the amount shown as payable in the returns if no assessment order was passed within the prescribed period of time it is necessary to examine the effect or consequence of failure of the Revenue authorities to pass assessment order within the prescribed time of two years. There is no specific provision spelling out effect or consequence but obvious consequence is that the returns filed by the petitioner in the concerned year w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of submission of returns and claims refund in his final return, he becomes entitled to get refund of the said excess amount when his returns get the stamp of acceptance by operation of law because the State has no right to retain any amount not payable in law. It is also settled position that a dealer is entitled to get refund of excess amount of tax paid voluntarily by mistake of law or incorrect application of facts. No involuntary payment of excess tax under pressure or coercion can be retained by the State. In appropriate cases it may be necessary for the dealer to explain the reason or circumstances in which excess payment was made. Section 60 of the 1994 Act does not say that only excess payments on the basis of assessment orders are to be refunded. Section 60 provides for refund of any payment of tax in excess of the tax payable under the Act in relevant assessment period. Thus it is not necessary that excess payment should be made in pursuance of an assessment order. Even a pre-return voluntary payment in excess of the tax payable under the concerned Act is to be refunded, if claimed, in the return itself, by the person who has paid such excess amount. This Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealers do not pay anything more than payable under the return before any assessment was made. Although there is no clear and conclusive proof, the petitioner's claim cannot be ruled out in the backdrop of aforesaid facts.
For the reasons mentioned hereinabove, we hold that the petitioner is entitled to get refund as claimed. The concerned authorities will refund the T.D.S. amount within February 15, 2010, as no question of unjust enrichment arises in the said case of tax deducted at source by the contractee. The petitioner will get refund of the tax deposited on September 27, 2004 if such refund is not hit by the doctrine of unjust enrichment.
The petitioner will now appear before the appropriate authority before December 10, 2009 to satisfy him that there is no unjust enrichment. The concerned authority will consider the same and record his decision/ satisfaction by January 31, 2010. If the concerned authority is satisfied that there is no unjust enrichment he will refund the said amount by March 31, 2010.
Application is disposed of. No order as to costs.
R.K. DUTTA CHAUDHURI (Judicial Member).--I agree.
DIPAK CHAKRABORTI (Technical Member).--I agree. X X X X Extracts X X X X X X X X Extracts X X X X
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