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TMI Blog2015 (4) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... “payable” and if amount paid than in terms of the aforesaid notification the amount cannot be retained and thus has to be refunded. In my view when condition (i) of sub clause (e) in clause 4 was deleted w.e.f. 23/5/1987 that date is relevant and is required to be seen and on that particular date nothing was payable by the assessee, therefore, in my view Tax Board was unjustified in coming to the conclusion that section (f) comes into the way of non-refunding of the said amount. - order passed by the Rajasthan Tax Board is set aside. Assessee is liable to refund of the said amount deposited by them as pre-condition to file appeal before DC(A). - Decided in favour of assessee. - S. B. Sales Tax Revision Petition No. 234/2009, S. B. Sales Tax Revision Petition No.235/2009 - - - Dated:- 9-1-2015 - Hon'ble mr. Justice J. K. Ranka,J. For the Petitioners : Mr. Anuroop Singhi, Mr. Kushagra Sharma and Mr. Saurabh Jain For the Respondent : Mr. RB Mathur with Ms. Tanvi Sahai ORDER REPORTABLE 1. These two Sales Tax Revision Petitions are directed against the order dated 18/8/2009 passed by the Rajasthan Tax Board (in short, 'the Tax Board') in Appeal Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.04.2007 allowed the appeals of the assessee and quashed the order passed by the Additional Commissioner, the said order has become final and has attained finality as the Revenue did not challenge the same before this court. 6. Mr. Anuroop Singhi, learned counsel for the assessee contends that the assessee was not at all liable to make any deposit or payment in the light of the said notification which came to be introduced with retrospective effect. Whatever amount was deposited was not legally payable but had to be deposited or though was not payable thus is illegally retained and is thus refundable. He contends that denial of refund of such amount of ₹ 2,90,000/- by all the three authorities is unjustified and is thus illegal. He further contends that the order of Tax Board in original proceedings in the light of the said Notification attained finality and therefore in the light of said notification assessee certainly becomes entitled to refund. He further contended that what should be payable has been observed by the Hon'ble Apex Court in the case of New Delhi Municipal Committee vs Kalu Ram and another AIR 1976 SC 1637. He contends that no amount was payable, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect from 23.5.1987,certainly the benefits accrued to the assessee since beginning from 23.5.1987 from which date amendment was made retrospectively. Once amendment was made effective from 23/5/1987 then no amount was payable by the assessee since 23.5.1987. It is true that to avail benefit to prefer an appeal as a pre-condition, assessee deposited certain amount under section 84(3) of the said Act and it certainly cannot be said that the said amount is due against the assessee or payable by the assessee particularly in view of the deletion of existing condition 4(e)(i) w.e.f. 23.5.1987. In my view it relates back to the position as on 23.5.1987, if one considers then the section 4(e)(i) was not there in statute from 23.5.1987 and it has to be treated to be effaced and thus the assessing officer was not legally justified to pass order and to create any tax demand and by virtue of the aforesaid notification the tax paid/collected/deposited was legally not payable. Once amendment conferring benefits were granted retrospectively then in my view the assessee was not liable to pay any amount. What is payable came to be considered by the Hon'ble Apex Court in the case of New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gated on November 6, 1959, validating the Rules. The assessee withdrew the Writ Petition thereafter the Assessing Officer (Revenue) directed the assessee to deposit the tax. Accordingly the assessee deposited the due tax but penalty was also imposed on the assessee. This court allowed the petition by deleting the penalty and the Hon'ble Apex Court in the said backdrop observed as under: In our opinion, there has been no breach of s. 16(1)(b) of the Act, and consequently, the orders imposing the penalties cannot be sustained. According to the terms of s. 16(1)(b), there must be a tax due and there must be a failure to pay the tax due within the time allowed. There was some discussion before us as to the meaning of the words 'time allowed' but we need not decide in this case whether the words 'time allowed' connote time allowed by an assessing authority or time allowed by a provision in the Rules or the Act, or all these things, as we are of the view that no tax was due within the terms of s. 16(1)(b) of the Act. Section 3, the charging section, read with s. 5, makes tax payable, i.e., creates a liability to pay the tax. That is the normal function of a chargi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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