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COMMISSIONER OF TRADE TAX U.P. LKO. versus S/S SHIV RAJ INDUSTRIES INDRA MILL COMPOUND

High Court of Judicature at Allahabad

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Commissioner Of Trade Tax U.P. Lko. v. S/S Shiv Raj Industries Indra Mill Compound - SALES/TRADE TAX REVISION DEFECTIVE No. 1451 of 1998 [2005] RD-AH 4475 (20 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 55

Trade Tax Revision no. (1451) Of 1998.

AND

Trade Tax Revision no. 1477 Of 1998.

The Commissioner of Trade Tax, U.P. Lucknow. ...Applicant.

                Vs

M/S Shiv Raj Industries, Agra. ... Opp. Party.

Hon'ble Rajes Kumar, J.

These two revisions under Section 11 of U. P. Trade Tax Act (hereinafter referred to as ''Act') are directed against the orders of Tribunal dated 04.03.1998 both relating to assessment year 1991-92 under the U. P. Trade Tax Act as well as under the Central Sales Tax Act.

The short controversy involved in the present revisions relates to the refund of amount, which have been realised in excess of the tax due.  The First Appellate Authority had held that the excess amount of Rs.30,629.21 under the U. P. Trade Tax Act and Rs.17,131.19 under the Central Sales Tax Act were not refundable to the dealer  and Assessing Authority shall be free to refund in accordance to Section 29-A (3) of the Act.  

Dealer/Opposite Party (hereinafter referred to as "the Dealer") filed appeals before the Tribunal.  Tribunal by the impugned order allowed the appeals and directed to refund the aforesaid amount to the dealer relying upon the decisions of this Court in the cases of M/S Kheria Brothers, Lalitpur Vs. Assistant Commissioner (Judl.) Sales Tax, Jhansi and another reported in UPTC 1995 page 593 and Commissioner of Trade Tax Vs. S/S Rampur Distillery & Chemicals Co. Ltd., Rampur reported in  UPTC 1997 page 988 which was decided following the decision in the case of M/S Kheria Brothers              Learned Standing Counsel submitted that the decision of M/S Kheria Brothers, Lalitpur Vs. Assistant Commissioner (Judl.) Sales Tax, Jhansi and another (supra) has been over ruled by the Apex Court in the case of Asstt. Commissioner (Judicial), Sales Tax Jhansi Vs. M/S Kheria Brothers and another reported in STR 1998 (28) page 630 and therefore, order of Tribunal is illegal and liable to be set aside.  Learned Counsel for the dealer has not disputed the fact that the decision of this Court in the case of M/S Kheria Brothers, Lalitpur Vs. Assistant Commissioner (Judl.) Sales Tax, Jhansi and another has been over ruled by the Apex Court.  However, he submitted that in the present cases after the orders of Tribunal dated 13.11.1992, dealer had refunded the amount to the customers, therefore, dealer was entitled for refund of the amount. In support of his contention, he relied upon the decisions of this Court in the cases of M/S O. D. Industries and another Vs. State of U. P. and others reported in UPTC 1996 page 307 and Kores (India) Ltd Vs. State of U. P. reported in UPTC 1995 page 605.  

Perusal of order of Tribunal shows that the Tribunal has directed to refund the amount following the decision of this Court in the case of M/S Kheria Brothers, Lalitpur Vs. Assistant Commissioner (Judl.) Sales Tax, Jhansi and another (supra).  The aforesaid decision has been over ruled by the Apex Court in the case of Assistant Commissioner (Judl.) Sales Tax Vs. M/S Kheria Brothers, Lalitpur (supra).  The result of reversal of the decision of this Court is that the provisions of Section 29-A stood valid in the statute and have to be complied with.  In the circumstances, order of Tribunal is liable to be set aside.  However, perusal of order shows that the dealer alleged to have refunded the amount after the order of Tribunal dated 30.11.1992.  This Court in the cases of M/S O. D. Industries and another Vs. State of U. P. and others (supra) and M/S Kheria Brothers, Lalitpur Vs. Assistant Commissioner (Judl.) Sales Tax, Jhansi and another (supra), held that till time there was no procedure prescribed for refund of excess amount of tax in pursuance of sub section (3) of Section 29-A, in case if the amount is refunded by the dealer to its customers the same could be refunded to the dealer and could not be forfeited.  It appears that Rules 106 to 110 dealing with the refund under Section 29-A were inserted by U. P. Sales Tax Act Amendment Rules, 1993, therefore, if the amount have been returned by the dealer to its customer, before the amendment, dealer would be entitled to refund in view of decision of this Court in the cases of M/S O. D. Industries and another Vs. State of U. P. and others (supra) and M/S Kheria Brothers, Lalitpur Vs. Assistant Commissioner (Judl.) Sales Tax, Jhansi and another (supra).  However, if the amount had not been returned prior to insertions of rule 106 to 110 inserted by U. P. Sales Tax Act, Amendment Rules 1993, the same may be dealt with according to the rule.  Tribunal may also examine as to whether the amount had been actually returned or not after examining the books of account and other evidences.

In the result, the aforesaid two revisions are allowed.  Orders of Tribunal are set aside and the matters are remanded back to the Tribunal to decide the appeals afresh in the light of observations made above.

Dt:20.10.2005.

MZ/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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