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TMI Blog2017 (7) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 1997-98 and the accounts were called for and checked by the respondent and found to be in order and the total taxable turnover of the petitioner for the relevant year was determined at Rs. 2,18,205/-. Since the turnover fell below the taxable minimum, no tax was due and accordingly, the Assessing Officer completed the assessment vide order dated 21.09.1998. By then, the petitioner had remitted a sum of Rs. 24,003/- being the tax collected by them and since the Assessing Officer did not order for refund, the petitioner preferred an appeal against the orders of assessment to the Appellate Assistant Commissioner (CT), Pollachi, in AP.No.415/98, which was dismissed by order dated 07.09.1999. 3. Aggrieved by the same, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 11-B and 12-A of the Central Excise and Salt Act, 1944. Further, the petitioner stated that Section 22(2) of the Act would have no application to cases where a dealer receives the amount of the tax from the buyer and remits the same to the State as he cannot be said to have collected by way of tax or purporting to be by way of tax under the Act, amounts, not payable as such. The applications were considered by the respondent and by the impugned order, they have been rejected. 5. The primary ground on which the application for refund has been rejected is on the ground that the petitioner did not file the name of the real beneficiary to whom the refund has to be granted either before the Assessing Officer or the Appellate Authority or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the assessment was completed vide order dated 21.09.1998 stating that the tax due is nil. 8. In my considered view, the Tribunal rightly understood the legal effect of such an order of assessment, wherein the turnover of the petitioner fell below the taxable minimum and the rate of tax was nil and therefore, the Tribunal observed that the amount collected by way of tax from the petitioner at Rs. 24003/- has been retained by the Assessing Officer without any demand or invoking any penal provision as provided under Section 22(2) of the TNGST Act. Thus, answer to the question as to whether the respondent can retain the amount of tax is in the negative. 9. The respondent seeks to non-suit the petitioner by referring to the decision of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept by making the necessary amendments to the sales tax legislation. As rightly pointed out by the counsel for the Revenue, the concept of unjust enrichment is now part of the established law in this country after the decision of the nine Judges Bench of the apex Court in the case of Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467 wherein the majority of the learned Judges, who decided that case, held that the doctrine of unjust enrichment is a just and salutary doctrine ; that no person can seek to collect the tax or duty both ways, that a person cannot collect the duty from the purchaser at one end and also collect the same from the State on the ground that it has been collected from him contrary to law. The apex Court also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on corresponding to Sections 11-B and 12-A of the Central Excise and Salt Act, 1944, in the Tamil Nadu General Sales Tax Act, it is not permissible for the authorities under the Act to impose a penalty on the sole ground that it is meant to offset a refund, the result of making which would result in unjust enrichment to the dealer. In the case on hand, the Tribunal took note of this legal position and made an observation as to how the Assessing Officer was not justified in retaining the tax amount to his account. 12. In R.Abdul Quader and Co. v. Sales Tax Tax Officer, Second Circle, Hyderabad, reported in AIR 1964 SC 922, it was held that if a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the turnover falls below the taxable minimum and therefore, the question of initiation of penalty proceedings under Section 22(2) of the TNGST Act does not arise. 16. Hence, for all the the above reasons, the petitioner is entitled for the refund of the tax remitted by them. Accordingly, the writ petition is allowed and the impugned order is set aside and the respondent is directed to refund the amount of tax paid by the petitioner namely Rs. 24,003/- within a period of eight weeks from the date of receipt of a copy of this order. If the petitioner is still continuing his business and he is a registered dealer on the file of the respondent under the provisions of the TNVAT Act or the CST Act, it is open to the respondent/Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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