9911796707
TMI Blog2021 (11) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... essment proceedings, which was held to be not payable by authorities concerned in an appeal of another assessee of the very same transaction? 3. The appellant herein was a co-writer alongwith Mr.Salim Khan of film 'Zanjeer' somewhere in the year 1973. They undertook literary work viz. script, screenplay and dialogue of that film. Much later a film by the same name was produced in the year 2013 by Reliance Big Entertainment Pvt. Ltd. (in short 'Reliance'). Aggrieved, the appellant and Mr. Salim Khan jointly filed a suit being Suit No. 424 of 2013 titled as Salim Khan & Anr. Vs. Sumeet Prakash Mehta & Ors. before the Hon'ble High Court of Judicature at Bombay against Reliance Big Entertainment Pvt. Ltd. for infringement of copyright, claimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of Rs. 6,11,017/- on Rs. 2 crores received by him from Reliance. He also paid the tax under protest. The said demand was confirmed by the Adjudicating Authority vide order-in-original dated 5.10.2016 and the amount paid under protest was appropriated. No penalty was imposed u/s. 76 & 77 ibid and penalty u/s. 78 ibid was reduced to 25%. On Appeal being filed by Mr. Khan, the Commissioner (Appeals) vide Order-in-Appeal dated 19.6.2017 allowed the appeal and held that the amount of Rs. 2 crores received by the claimant can be considered as an ex gratia and not a payment for a consideration relating to any service. No Appeal was preferred by department and it attained finality. Mr. Khan thereafter filed refund application and the Deput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of compulsion therefore it is under protest, but still rejected the appeal filed by the appellant on the ground that the appellant has accepted his liability of Rs. 23,28,100/- and the proceedings were closed by the Commissioner vide order dated 9.7.2014 u/s. 80 ibid and that order dated 9.7.2014 was not challenged further by the appellant before the appropriate form before filing the refund claim. He also distinguishes the case of Mr. Salim Khan on the ground that in his case due process of adjudication under the law was followed. 8. According to learned counsel refund of amount deposited by Mr.Salim Khan (co-writer) was granted by the department considering it ex gratia whereas the same has been denied to the appellant despite knowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o no refund can be allowed and in support of his submissions, learned Authorised Representative cited case laws also. 9. I have heard rival submissions and perused the case records including the written submission alongwith case laws cited by the respective sides. Learned commissioner has recorded a specific finding that the payment made by the appellant was not voluntary and is under protest and also that the application for refund is not barred by limitation. The aforesaid findings of the learned commissioner have not been challenged by the department and therefore it attained finality. As per the impugned order of learned Commissioner, tax has been collected in accordance with law i.e. under the enactment itself and no amount is refunda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim refund unless the assessment is challenged is misconceived and contrary to the law. The authority concerned is duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which bears the heading "Taxes not to be imposed save by authority of law" and lays down that no tax shall be levied or collected except by authority of law. So the act of the authorities by keeping the deposit is directly in conflict with Article 265. When the amount deposited by the appellant is not a tax and merely a deposit, there is no question of applying the provisions of the Finance Act for its refund. In the decisions cited by learned Authorised Representative the issue was about the refund of duty whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
