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TMI Blog2014 (4) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... aversion to its valuable right for being governed by the amended Scheme for composition of entertainment tax. Therefore, requisite order on application for rectification of mistake ought to have satisfied the requirement of audi alterm partem. In absence of adherence of principles of natural justice, the order which has visited petitioner with evil and civil consequences is per-se vulnerable and cannot be approved. From the facts pleaded by the rival parties and the materials placed on record, it is not at all clear as to whether the petitioner has collected the tax in terms of unamended scheme for composition of entertainment tax or as per the amended provision which came into force from 23rd of February 1995. The reply of the revenue in this behalf is also conspicuously silent and unspecific. During the course of arguments, this contention has been canvassed with full emphasis but there is no cogent evidence available on record from either side to decide this factual aspect of the matter. If the petitioner has realized tax in terms of old unamended scheme, then obviously the doctrine of unjust enrichment would come into play and if the situation is otherwise, there may be some ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended scheme and not in accordance with the Notification dated 23rd of February 1995. In adherence of the order, the requisite amount was paid by the petitioner and subsequent thereto also in terms of the orders passed by the first respondent requisite amount was remitted by the petitioner. The petitioner submitted an application on 9th of January 1997 seeking rectification under Rule 32 of the Rajasthan Entertainment Advertisement Tax Rules 1957 (for short, 'Rules of 1957'). Rule 32 of the Rules of 1957 envisages a provision for rectification of mistakes. For the same prayer, petitioner also approached the Commissioner, Commercial Taxes, Jaipur seeking rectification of mistake. Taking cognizance of the application for rectification of mistake submitted by the petitioner, the Addl. Commissioner, Commercial Taxes issued a notice to the petitioner on 7th of February 1997 for personal hearing with records. The petitioner attended the hearing and made his submissions. After conclusion of the hearing, nothing was heard by the petitioner thereafter, nor any order was passed in this behalf and according to petitioner the application for rectification of mistake remained pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner approached the Rajasthan Taxation Tribunal by laying Original Application but after repealing of the Rajasthan Taxation Tribunal Act 1995, the file was transferred to this Court. The matter came up before the Division Bench as vires of Section 9A was under challenge. Ultimately, the vires of Section 9A was upheld by the Division Bench of this Court by its order dated 10th of March 2003 and therefore Division Bench ordered for listing this matter before the learned Single Judge for adjudication on the surviving issues on merits. The writ petition was contested by the respondents and reply to the same was submitted. In the return, the respondents have submitted that the order of composition of entertainment tax from 01.02.1995 to 31.01.1996 was passed by the Deputy Commissioner (Admn.) Commercial Taxes Department, Bikaner on 5th of April 1995 wherein the order of composition was made w.e.f. 01.02.1995 and therefore the petitioner has been rightly assessed at the rate prescribed under the old scheme of 1982. With this submission, the respondents have defended the orders Annex.13 and Annex.7 respectively and urged that both these orders are in consonance with the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod starting from April to March (financial year). With these submissions, the petitioner has urged with full emphasis that the respondents ought to have applied the said amendment in Scheme w.e.f. 23rd of February 1995 itself. Highlighting the basic principles of natural justice, the petitioner has averred with full emphasis in the rejoinder that, while passing the order of rejection of the application for rectification of mistake, the principles of natural justice were flagrantly violated by the respondents. Learned counsel for the petitioner Mr. Vinay Kothari has strenuously argued that the Scheme for composition of entertainment tax which was notified on 8th of July 1982 for which the petitioner submitted option w.e.f. 1st of February 1995 was amended vide notification dated 23rd of February 1995 to petitioner-assessee s advantage but while passing the composition order the respondents have ordered composition for entertainment tax vis- -vis the petitioner in accordance with old unamended scheme without any rhyme and reason. Mr. Kothari would contend that a benefit which has accrued to the assessee as a consequence of amendment in the scheme cannot be denied to him merely bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can look fairly at the language used. This view has been reiterated by this court time and again. Thus, in State of Bombay v. Automobile and Agricultural Industries Corporation, this court said: But the courts in interpreting a taxing statute will not be justified in adding words thereto so as to make out some presumed object of the Legislature ... If the Legislature has failed to clarify its meaning by the use of appropriate language, the benefit thereof must go to the taxpayer. It is settled law that in case of doubt, that interpretation of a taxing statute which is beneficial to the taxpayer must be adopted. 8. On behalf of the respondents State, learned counsel drew our attention to the judgment of this court in CED v. Kantilal Trikamlal. That judgment also is to the same effect and does not avail the respondents. It said: (SCC p.650, para 8) The sweep of the sections which will be presently set out must, therefore, be informed by the language actually used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . [(1978) 1 SCC 248] 2. Babloo Pasi Vs. State of Jharkhand (AIR 2009 SC 314)] 3. Union of India Anr Vs. P.N. Natarajan Ors. [(2010) 12 SCC 405] 4. Mahipal Singh Tomar Vs. State of Uttar Pradesh Ors. [2013 (12) Scale 304]. In Maneka Gandhi's case (supra), the seven Judges Bench of Hon'ble Apex Court, while examining the principles of natural justice, in the matter of impounding of passport of an individual, has held as under in Para 9 and 10 of the verdict: 9. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth-y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club: We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f State for Home Affairs where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf . The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations (vide American Journal of International Law, Vol. 67, p. 479). Magarry, J., describes natural justice as a distillate of due process of law (vide Fontaine v. Chastarton). It is the quintessence of the process of justice inspired and guided by fair- play in action . If we look at the speeches of the various Law Lords in Wiseman case it will be seen that each one of them asked the question whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded , or, was the procedure adopted by the Tribunal in all the circumstances unfair? The test adopted by every Law Lord was whether the procedure followed was fair in all the circumstances and fair-play in action required that an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly should be an additional requirement existing independently of the authority to determine questions affecting the rights of subjects something super-added to it. This gloss placed by Lord Hewart, C.J., on the dictum of Lord Atkin, LJ., bedevilled the law for a considerable time and stultified the growth of the doctrine of natural justice. The Court was constrained in every case that came before it, to make a search for the duty to act judicially sometimes from tenuous material and sometimes in the services of the statute and this led to oversubtlety and over- refinement resulting in confusion and uncertainty in the law. But this was plainly contrary to the earlier authorities and in the epoch-making decision of the House of Lords in Ridge v. Baldwin which marks a turning point in the history of the development of the doctrine of natural justice, Lord Reid pointed out how the gloss of Lord Hewart, C.J., was based on a misunderstanding of the observations of Atkin, L.J., and it went counter to the law laid down in the earlier decisions of the Court. Lord Reid observed: If Lord Hewart meant that it is never enough that a body has a duty to determine what the rights of an individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations in Para 23 24: 23. Therefore, on facts at hand, in the absence of evidence to show on what material the entry in the Voters List in the name of the accused was made, a mere production of a copy of the Voters List, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused. Similarly, though a reference to the report of the Medical Board, showing the age of the accused as 17-18 years, has been made but there is no indication in the order whether the Board had summoned any of the members of the Medical Board and recorded their statement. It also appears that the physical appearance of the accused, has weighed with the Board in coming to the afore-noted conclusion, which again may not be a decisive factor to determine the age of a delinquent. Insofar as the High Court is concerned, there is no indication in its order as to in what manner Rule 22(5)(iv) has been ignored by the Board. The learned Judge seems also to have accepted the opinion of the Medical Board in terms of the said Rule as conclusive. Therefore, the afore-stated ground on which the High Court has set aside the opinion of the Board and holding the accused to be a j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification of mistake. Mr. Godara has submitted that the order was communicated to the petitioner and the same was passed after issuing proper notice to the petitioner which is evident from the averments contained in Para 10 of the writ petition. With these submissions, learned counsel has urged that the order is just and proper and in consonance with Rule 32 of the Rules of 1957 warranting no interference. Learned counsel for the revenue, while resisting the claim of the petitioner for refund of the amount of tax collected, has urged that if the amount is refunded then it would be a clear case of unjust enrichment inasmuch as the petitioner has already collected tax from ultimate consumers. Defending the action of the revenue in retaining the amount, Mr. Godara has submitted that the State Government can make use of the money for public welfare and contrary to it if the money is refunded back to the petitioner it will enrich the coffers of assessee in an unjust manner which is contrary to law. Lastly, the learned counsel for Revenue has argued that the petitioner has opted for unamended composition scheme and never applied for amended composition scheme and has even collected tax f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No one can speak of the people being unjustly enriched. (iv) It is not open to any person to make a refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. He cannot also claim that the decision of the court/tribunal in another person s case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person s case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well-established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. I have heard the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 375;गी तथा नवीनीकरण हेतु गत वर्ष की प्रश्मन राशि में प्रवेश दरों की वृद्धि के अनुसार अनुपातिक वृद्धि की जायेगी किंतु यह वृद्धि न्यूनतम 5 प्रतिशत से कम नहीं होगी। In the background of the amendment in the Scheme for composition of entertainment tax, admittedly, the petitioner has opted for the same w.e.f. 01.02.1995 and the amendment was brought in within a span of 22 days, there appears to be no justifiable reason to deprive the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equences is per-se vulnerable and cannot be approved. Now adverting to the issue relating to refund of the amount of composition of entertainment tax allegedly paid by the petitioner-assessee in excess, the same requires consideration on the touchstone of doctrine of unjust enrichment. In Mafatlal's case (supra) on which the Revenue has placed reliance, the Apex Court has held in sub-para (i) of Para 108 that refund can be claimed by the assessee under certain contingencies, the same reads as under: (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force from 23rd of February 1995. The reply of the revenue in this behalf is also conspicuously silent and unspecific. During the course of arguments, this contention has been canvassed with full emphasis but there is no cogent evidence available on record from either side to decide this factual aspect of the matter. If the petitioner has realized tax in terms of old unamended scheme, then obviously the doctrine of unjust enrichment would come into play and if the situation is otherwise, there may be some justification for the claim of refund of the petitioner. After thrashing out the matter in its entirety, in the backdrop of facts and circumstances of the instant case and the position of law emerged out from various authoritative pronouncements of the Hon'ble Apex Court, in my view, the matter requires re-examination by the competent authority in strict adherence of principles of natural justice so that the matter can be thrashed out in its entirety. Thus, viewed from any angle, the impugned orders (Annexs. 8 18) cannot be sustained and are hereby annulled and the matter is remitted back to Deputy Commissioner, Commercial Taxes, Bikaner for deciding application of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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