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TMI Blog2014 (6) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... es tax for the job work carried out by him and consequently, was eligible for refund of the tax that was deducted at source. The Assessing Officer, accordingly, directed the office to verify the T.D.S. certificate and if the same was found to be correct the deducted amount was to be paid to the petitioner. The respondents, as a counter blast, issued a notice dated 06.02.2006 alleging that the petitioner was not entitled for any refund of the T.D.S. amount as prima facie it was found to be a case of unjust enrichment. - the stand of the respondents is the same, namely, that it was a case of unjust enrichment and such tax collected by the petitioner cannot be refunded. The verification that was required to be done by the Assessing Officer was whether the deductee had deposited the money in the Government Treasury and if the amount was deposited, the refund was to be given by the petitioner. This was the only limited area of verification that was required to be done as per Rule 90 of the U.P. Trade Tax Rules, 1948. Consequently, the exercise done by the respondents could not have been gone and was without jurisdiction. The impugned orders cannot be sustained and is quashed. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax at source, out of which an amount of Rs. 1,92,969.74 was refunded and the balance amount of Rs. 2,88,081.00 remained unpaid. The petitioner, accordingly, prayed that the said amount along with interest should be refunded. It transpires that this request of refunding the amount along with interest infuriated the department and, instead of refunding the balance amount, the respondents, as a counter blast, issued a notice dated 06.02.2006 alleging that the petitioner was not entitled for any refund of the T.D.S. amount as prima facie it was found to be a case of unjust enrichment. The department directed the petitioner to file copies of the agreement with regard to the job works for the purpose of finding out as to whether tax was realised by the petitioner from the contractee or not. The petitioner submitted a reply indicating that it was not a case of unjust enrichment and the petitioner, in the course of execution of job works, had also purchased certain materials from the local market, which was tax paid and had not realised such tax from the contractee. On the other hand, the T.D.S. was deducted by the contractee as per the mandatory provision of Section 8-D of the U.P. Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected from him contrary to law. In that light, the doctrine of unjust enrichment was evolved contending that the power of the Court was not meant for unjustly enriching a person. In this regard the Supreme Court held that in a case where any claim for refund, whether on the ground of mis-interpretation or mis-application of the statute and/or the rules thereunder or on the ground of unconstitutionality, could succeed only if the petitioner alleged and established that he had not passed on the burden of duty or tax to another person and only in that situation his claim would be allowed. In the case of State of Maharashtra and others Vs. Swanstone Multiplex Cinema Private Limited {2009 (8) SCC 235} the petitioner availed the exemption in the matter of payment of entertainment duty. The petitioner claimed refund of the duty realised from him. The Supreme Court invoked the doctrine of unjust enrichment and did not allow the duty collected by the said petitioner to be refunded as it found that the burden of exemption of tax was passed on to the consumer. In STO Vs. Ajit Mills Ltd. {1977 (4) SCC 98} the Supreme Court held that no person shall collect any sum by way of sales tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjustly enriched. In the light of the aforesaid, it was urged by the learned counsel for the respondents that the claim of refund could not be entertained if the burden had been passed on the consumer and that a person claiming refund cannot be allowed on the principle of unjust enrichment. Before proceeding, we consider it appropriate to peruse the provisions of Sections 8-D, 29 and 29-A of the Act. For facility the said provisions are extracted hereunder: Section 8-D - Tax deduction from the amount payable to Works Contractor (1) Notwithstanding anything contained in sub-section (2) of Section 8-A, every person responsible for making payment to any dealer (hereinafter in this section referred to as the contractor) for discharge of any liability on account of valuable consideration payable for the transfer of property in goods (whether as goods or in any other form) in pursuance, of a works contract, not being a building contract of such class or value as may be notified by the State Government in public interest in this behalf, shall, at the time of making such payment to the contractor, either in cash or in any other manner, deduct an amount equal to four per cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch intervals, within such period, in such form and verified in such manner, as may be prescribed, but the assessing authority may in its discretion for reasons to be recorded, extend the date for the submission of the return by such person.] (5) Any deduction made in accordance with the provisions of this section and credited into the Government Treasury shall be treated as a payment of tax on behalf of the person from whose bills or invoices the deduction has been made, and credit shall be given to him for the amount so deducted on the production of the certificate, referred to in sub-section (4), in the assessment made for the relevant assessment year. (6) If any such person, as is referred to in sub-section (1) or subsection (2), fails to make the deduction or, after deducting, fails to deposit the amount so deducted, as required by subsection (3), the Assessing Authority may, after giving to such person an opportunity of being heard, by order in writing, direct that such person shall pay, by way of penalty, a sum not exceeding twice the amount deductible under this section but not so deducted and, if deducted, not so deposited into the Government Treasury. (7) Without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e substituted. (3) Notwithstanding any judgment, decree or order of any Court or authority, no refund shall be allowed of any tax or fee due under this Act on the turnover of sales or purchases or both, as the case may be, admitted by the dealer in the returns filed by him or at any stage in any proceedings under this Act. [(4) Notwithstanding anything contained in sub-sections (1), (2) and (3), where the tax has been paid by a dealer on purchase of certain goods and the value of goods manufactured out of such goods in inclusive of such tax and the State Government remits the tax liability on such purchases retrospectively, the dealer shall not be entitled to refund of tax paid on purchases of such goods unless he proves to the satisfaction of the Assessing Authority that he has not passed on the liability of such tax to any party as a result of any sale or otherwise.] ExplanationI. --The date of refund shall be deemed to be the date on which intimation regarding preparation of the refund voucher is sent to the dealer in manner prescribed. Explanation II.--The expression 'refund' includes any adjustment under the proviso to sub-section (1). Section 29-A - Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year. In the light of the aforesaid, in the instant case, the admitted position is, that the contractee was duty bound to deduct the tax for the job works done by the petitioner under Section 8-D of the Act. The contractee issued T.D.S. certificate in favour of the petitioner. The said certificate was evidence that the payment of tax was deducted at source on the bills presented by the petitioner and credit was required to be given at the time when an assessment order was made. The Court finds that in the instant case, the petitioner presented the T.D.S. certificate before the Assessing Officer, who accepted the books of account as well as the T.D.S. certificate and found that the petitioner was not exigible to sales tax for the job work carried out by him and consequently, was eligible for refund of the tax that was deducted at source. The Assessing Officer, accordingly, directed the office to verify the T.D.S. certificate and if the same was found to be correct the deducted amount was to be paid to the petitioner. In the light of the aforesaid, Section 29 of the Act comes into play, which is with regard to refund of any amount of tax, fees or other dues payable to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held not liable to pay any tax, the question of placing the burden again upon the petitioner, at the time of verification is, wholly misplaced and beyond jurisdiction. Such exercise of placing the burden was permissible only during assessment proceeding and not thereafter. In this regard the court finds that the T.D.S. certificate was accepted by the Assessing Officer during the assessment proceedings. The books of account was accepted and the petitioner was found that he was not exigible to sales tax for the business which he was carrying as job works. The Assessing Officer after verifying the books of account passed the assessment order and directed the office to verify the T.D.S. certificates and that if the said T.D.S. certificate was found to be correct, the amount deducted at source was to be refunded to the petitioner. The effect of the assessment order was to verify the T.D.S. amount. The verification that was required to be done by the Assessing Officer was whether the deductee had deposited the money in the Government Treasury and if the amount was deposited, the refund was to be given by the petitioner. This was the only limited area of verification that was required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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