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TMI Blog2015 (2) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 29 of the Act. The Tribunal also found that the petitioner had not admitted its liability to pay the tax and had deposited the same under protest in terms of the interim order passed by the High Court. This finding of the Tribunal has also become final and, consequently, it was no longer open to the respondents to reject the petitioner's application on the same ground, which has been dealt and decided by the Tribunal and which has been affirmed by the High Court. Impugned order passed by the assessing authority dated 16.7.2014 cannot be sustained and is quashed - writ of mandamus is issued commanding the assessing authority to refund the amount deposited towards Carbon Black Fee Stock (CBFS) for the assessment years 2006-07 and 2007-08, upto 31st December, 2007. - Interest payable under Section 29(2) of the Act of 1948 would also be calculated from the date of service of the order of the Tribunal @ 12 % per annum till actual refund is made. The said amount shall be paid within six weeks from the date of the production of a certified copy of this order. - Decided in favour of appellant. - Civil Misc. Writ Petition (Tax) No. 480 of 2014 - - - Dated:- 2-2-2015 - Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITC Limited. vs. Stae of U.P. and others, 2012 NTN(48) 1, wherein the validity of the Entry Tax Act 2007 was upheld. The judgment of this Court was challenged by the petitioner by filing a Special Leave Petition wherein an interim order dated 10.1.2012 was passed staying the operation of the judgment subject to deposit 50% of the accrued tax liability/arrears and furnishing bank guarantee of the balance amount. Subsequently, the interim order was modified by the Supreme Court by another order dated 31.1.2012 to the following effect: If for any reasons the appellants in these appeals want to seek statutory remedies provided under the Act against the assessment orders, best judgment assessment orders, provisional assessment orders, appeals or revisions before appropriate forum, they are at liberty to do so and if such appeals or revisions are filed, we direct the statutory authorities to consider the same in accordance with law. Based on the interim orders, the petitioner deposited a sum of ₹ 6,00,55,272/- and ₹ 5,65,01,326/- for the assessment years 2006-07 and 2007-08 and also furnished bank guarantee of an equal amount. Based on the order of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for refund, has filed the present writ petition for the quashing of the order dated 16.7.2014 and for a writ of mandamus commanding the respondents to grant refund of ₹ 11,68,56,591/- along with interest @ 18% per annum. We have heard Sri S.D.Singh, the learned senior counsel along with Sri Nishant Mishra for the petitioner and Sri C.B.Tripathi, the learned counsel for the State. The learned senior counsel contended that there is a specific order of the Tribunal directing refund of the amount deposited by the petitioner and, consequently, as per the provision of Section 29 of the U.P. Trade Tax Act, the amount was liable to be refunded along with interest. The learned senior counsel contended that the action of the respondents in rejecting the application, on the ground, that the tax deposited by the petitioner was admitted in its returns, was patently erroneous and against the evidence on record. The learned senior counsel contended that this issue as to whether the petitioner had admitted the liability of Entry Tax was also dealt with by the Tribunal and a categorical finding was given to the effect that the petitioner had not admitted its liability to pay Entry Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as if for the words six months the words three months were substituted and for the words six percent the words twelve percent were 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. Explanation I.- 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. Expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority and other forums. Based on the said direction, the appeal was filed by the petitioner, which was dismissed and, eventually, the second appeal was allowed by the Tribunal holding that the petitioner is not liable to pay Entry Tax on CBFS. This finding has become final inter-se between the parties and, consequently, the respondents have become bound to refund the amount. The validity of the Entry Tax before the Supreme Court becomes an academic exercise in so far as the petitioner is concerned. The stand taken by the State, that the amount is not refundable till the disposal of the Special Leave Petition by the Supreme Court, is patently erroneous. In the light of the aforesaid, the impugned order passed by the assessing authority dated 16.7.2014 cannot be sustained and is quashed. The writ petition is allowed and the petitioner is entitled for a writ of mandamus. Accordingly, a writ of mandamus is issued commanding the assessing authority to refund the amount deposited towards Carbon Black Fee Stock (CBFS) for the assessment years 2006-07 and 2007-08, upto 31st December, 2007. Interest payable under Section 29(2) of the Act of 1948 would also be calculated from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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