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Kaliki Veera Reddy and Co. Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberTax Revision Case No. 3 of 1972
Judge
Reported in[1974]34STC517(AP)
AppellantKaliki Veera Reddy and Co.
RespondentState of Andhra Pradesh
Appellant AdvocateS. Dasaratharama Reddi, Adv.
Respondent AdvocateMahadev, Adv. for ;Fifth Government Pleader
DispositionPetition dismissed
Excerpt:
- all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not apply to any building the rent of which as on the date of the commencement of the a.p. buildings ( lease, rent and eviction) control (amendment) act 2005 exceeds rs.3,500/- per month in the areas covered by the municipal corporations in the state and rs.2,000/- per month in other areas. there is nothing in the provisions of the amendment act which either expressly or by necessary implication.....kondaiah, j. 1. the assessee-petitioner, a dealer in paddy and rice at kovvur in nellore district, filed for the year 1958-59 annual return in form a-1 on 20th november, 1959, disclosing a gross and net taxable turnover of rs. 1,71,699-14-0 and rs. 90,697-8-0 respectively. the assistant commercial tax officer-cum-deputy commercial tax officer, kovvur, who passed the assessment order on 31st march, 1960, determined the net taxable turnover at rs. 1,19,051-7-0. aggrieved by the inclusion of a turnover of rs. 24,822-5-9 comprising of three items of rs. 10,947-5-9, rs. 12,800-0-0 and rs. 1,275-0-0, the assessee preferred an appeal in respect of the aforesaid disputed turnover. the deputy commissioner by his order dated 8th september, 1960, dismissed the appeal with regard to the first two.....
Judgment:

Kondaiah, J.

1. The assessee-petitioner, a dealer in paddy and rice at Kovvur in Nellore District, filed for the year 1958-59 annual return in form A-1 on 20th November, 1959, disclosing a gross and net taxable turnover of Rs. 1,71,699-14-0 and Rs. 90,697-8-0 respectively. The Assistant Commercial Tax Officer-cum-Deputy Commercial Tax Officer, Kovvur, who passed the assessment order on 31st March, 1960, determined the net taxable turnover at Rs. 1,19,051-7-0. Aggrieved by the inclusion of a turnover of Rs. 24,822-5-9 comprising of three items of Rs. 10,947-5-9, Rs. 12,800-0-0 and Rs. 1,275-0-0, the assessee preferred an appeal in respect of the aforesaid disputed turnover. The Deputy Commissioner by his order dated 8th September, 1960, dismissed the appeal with regard to the first two items and remanded the matter in so far as the third item is concerned to the assessing authority for fresh disposal after verification. On further appeal by the assessee to the Sales Tax Appellate Tribunal in respect of the inclusion of the first two items in the total turnover, the Tribunal by its order dated 27th May, 1981, remanded the matter to the first appellate authority to dispose of the matter afresh after affording an opportunity to the dealer-assessee to cross-examine the ryot in so far as the purchase of paddy for Rs. 12,600-0-0 and to prove that he was a second dealer in respect of the turnover of Rs. 10,947-5-6. The first appellate authority in its turn, by its order dated 8th December, 1963, remanded the case to the assessing authority with a direction to examine afresh both the items of dispute on the lines directed by the Tribunal and make the fresh assessment that may be called for in respect of the two disputed additions by 15th February, 1964. The Commercial Tax Officer passed the revised orders of final assessment on 9th May, 1967, determining the total taxable turnover at Rs. 1,19,051-7-0. The assessee thereupon preferred an appeal to the Assistant Commissioner, Commercial Taxes, Nellore, questioning the validity of the inclusion of the turnover of Rs. 23,547-5-9. The appellate authority by its order dated 10th December, 1967, allowed the appeal in respect of the disputed turnover observing as follows: 'The assessment for the year 1958-59 normally got barred by 1st April, 1963. By extending time by one year and two months any order based on the assessment beyond 31st May, 1964, gets barred by time. Hence, the assessment in respect of the disputed turnover of Rs. 23,647-5-9 being the subject-matter of remand by the Tribunal and the first appellate authority, having been made beyond the period of limitation has to be cancelled.' The assessee once again preferred an appeal to the Sales Tax Appellate Tribunal questioning the validity of the entire revised order of final assessment redetermining the turnover at Rs. 1,91,051-7-0 passed by the Deputy Commercial Tax Officer on 9th May, 1967, as barred by limitation. Rejecting the contention of the assessee that when once the assessment in respect of Rs. 23,547-5-9 which forms part of the total redetermined turnover of Rs. 1,19,051-7-0 is barred by limitation the entire assessment is liable to be set aside as the period of limitation applies to the entire but not to a portion or part of the order, the Tribunal held that the assessment on the turnover of Rs. 94,229-1-3, which was not the subject-matter of the appeals was valid but not barred by limitation. Hence this tax revision case.

2. Sri Dasaratharama Reddi, the learned counsel for the petitioner-assessee, raised before us the following contentions:

(1) That sales tax like income-tax is one integrated whole though turnover may be split up for purposes of computation and hence a part or portion of assessment cannot be in time if the other part or portion is found to be out of time;

(2) that when the appellate order modifies the assessment order, the assessment order is superseded by the appellate order and fresh assessment has to be made and, consequentially, a fresh demand for tax has to be raised. But, however, when the appeal is dismissed no fresh demand need be issued as the entire assessment is kept in order and

(3) that the assessee is entitled to refund of the tax paid by him provisionally or on admitted turnover if the assessment is not made in time or no demand is 'raised. This claim of the assessee is resisted by Mr. Mahadev appearing on behalf of the sales tax department, contending inter alia that the doctrine of merger has no application to the present case, that liability accrued the moment the sales have taken place though not quantified and the dealer is not entitled for refund of any tax paid on admitted turnover, even if the assessment is barred by limitation. According to the respondent, the subject-matter of the appeals is related to the disputed items of turnover only and the assessee is not entitled to claim refund of tax paid by him in respect of the admitted turnover or the turnover in respect of which no appeal had been preferred by him.

3. Upon the facts and the respective contentions of the parties, the following question arises for decision:

Whether, on the facts and in the circumstances, the assessee is entitled to claim refund of the sales tax paid by him in respect of the turnover of Rs. 94,229-1-3, which was either admitted or not appealed against?

4. In order to appreciate the scope of the respective contentions, it is profitable and necessary to briefly refer to the scheme of the Act relating to accrual of liability to pay tax and assessment and refund of tax. Sections 5, 5(a), 6 and 7 of the Act are the charging Sections whereunder every dealer is liable to pay sales tax at the rate or rates specified therein or the Rules made thereunder in respect of taxable sales or purchases as the case may be. Section 13 makes it obligatory on every dealer who is liable to pay tax under the Act to submit a return of his turnover in such manner and within the period prescribed by the concerned authority. Section 14 provides for assessment of tax. The assessing authority shall assess the amount of tax payable by the dealer on the basis of any return submitted by him if he is satisfied that it is correct and complete. But if the return appears to him to be incorrect or incomplete, he shall after affording reasonable opportunity to the dealer and after making such enquiry as he deems necessary assess to the best of his judgment the amount of tax due from him. An assessment under this section shall be made within a period of four years from the expiry of the assessment year. Any dealer aggrieved by any order of assessment may prefer an appeal as provided under Section 19. The appeal shall be in the prescribed form and on payment of a fee calculated at the rate of 1 per cent of the tax under dispute subject to a maximum of Rs. 50. The appellate authority is empowered to confirm, reduce, enhance or annul the assessment or set aside the assessment and direct the assessing authority to pass a fresh order after such enquiry as may be directed or pass such other orders as it may think fit. Section 20 provides for a revision to the Board of Revenue and other prescribed authorities. Section 21 provides for an appeal to the Appellate Tribunal which is the final fact-finding authority. A tax revision to the High Court is provided under Section 22 on any question of law.

5. Section 33 enjoins a duty on the assessing or licensing authority to refund any excess tax or licence fee paid provisionally by a dealer for any particular period. The assessee-dealer has to claim refund in the prescribed form within three years from the date on which the tax or licence fee was ordered to be refunded. Otherwise his claim for refund shall be rejected as time-barred (see Section 33-A). Section 33-B provides for refund of the excess tax if the dealer is entitled as per the order passed on appeal or revision. Section 33-C empowers the assessing authority to withhold refunds in cases specified therein. Section 33-D prohibits the assessee from questioning the correctness of any assessment or other matter decided, which has become final and conclusive, or seeking a review in respect thereof. The latter part of that section makes it abundantly clear that the assessee is not entitled to any relief except the refund of tax or licence fee wrongly paid in excess. This in short is the scheme of the Act pertaining to the levy, ascertainment and refund of tax.

6. We shall now examine the pleas advanced on behalf of the assessee that (i) the obligation to pay tax under the Act is a contingent one and does not arise until it is ascertained and levied to the dealer by making a valid assessment and raising a demand therefor, and (ii) that the sales tax like income-tax is an indivisible and integrated whole and a part of the assessment cannot be in time, if the other portion is found to be barred by limitation. It is well-settled that liability to pay tax, either income-tax or sales tax, is founded on the charging Sections of the respective Acts, although quantification of the amount of tax is made in the assessment proceedings in accordance with the machinery provided under the relevant Acts. However, under the Indian Income-tax Act, the liability to pay tax accrues on the last date of the year of account on the taxable income of the previous year (accounting year) of any person at the rate or rates prescribed in the Finance Act of the year of assessment whereas the liability to pay sales tax under the Act arises the moment the transaction of sale or purchase is completed at the rate or rates specified under the charging provisions of the Act and the schedules made thereunder on each rupee of the taxable turnover of the dealer in a year. This view of ours gains support from the scheme of the Act in providing for payment of the multiple sales tax, single point sales tax, single point tax at the first sale or purchase in the State in respect of certain goods mentioned in the schedules. The quantum of tax payable is, therefore, definite and certain, though quantified subsequently in the assessment proceedings as per the provisions of the Act. The liability to pay sales tax does not depend upon the assessment, but it is founded on the charging sections, i.e., Sections 5 to 7.

7. We may notice in this context the three stages in the imposition of a tax as indicated by Lord Dunedin in Whitney v. Commissioners of Inland Revenue [1926] A.C. 37 and approved by the Federal Court in Chatturam v. Commissioner of Income-tax [1947] 15 I.T.R. 302 (F.C.). They are (i) the declaration of liability by virtue of the charging Sections of a taxing statute, (ii) the assessment which fixes or particularises the exact quantum of liability of the assessee, and (iii) the modes of recovery of tax due and payable, if the assessee does not voluntarily pay the same. 'Liability', said Lord Dunedin, 'does not depend on assessment, that ex hypothesis has already been fixed. But assessment particularises the exact sum which a person liable has to pay'. As observed by the Federal Court in Chatturam's case [1947] 15 I.T.R. 302 (F.C.), 'the jurisdiction to assess and the liability to pay the tax, however, are not conditional on the validity of the notice'. To the same effect is the decision of the Supreme Court in Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income-tax [1971] 28 S.T.C. 672 at 675 (S.C.). Therein Grover, J., speaking for the court, ruled as follows: 'Under all sales tax laws...the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and taxability is attracted. Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment.' See also State of Madhya Pradesh v. Shyama Charan Shukla [1972] 29 S.T.C. 215 (S.C.).

8. As the liability of every dealer having a taxable turnover to pay sales tax for each year under the. charging Sections at the rate or rates specified arises at the point of time of completion of the sale or' purchase without waiting for the passing of an order of assessment, we are of the firm opinion that the charging Sections and other provisions of the Act thereunder and the schedules would not Send support to the view that it is an yearly tax and it is an indivisible and integrated whole. As observed by the Full Bench of this Court in State of Andhra Pradesh v. Murali Caf [1971] 28 S.T.C. 399 at 410, a tax is levied yearly only in the sense that it is quantified at the end of the year and collected accordingly. We are unable to persuade ourselves to agree with Sri Dasaratharama Reddi that the obligation to pay tax created by the charging Sections in the Act is contingent one and does not arise until it is ascertained and levied on the dealer by making a valid assessment and raising a demand therefor (vide K. Kannaiah v. Deputy Commercial Tax Officer [1964] 15 S.T.C. 689 at 694). We may add that the liability to pay tax on the admitted taxable turnover of the dealer amounts to arrears of tax due and payable by him without any valid recovery proceedings. We may notice the following passage in Shyama Charan Shukla's case [1972] 29 S.T.C. 215 (S.C.), where the scope of the term 'arrears' under Section 78 of the States. Reorganisation Act, 1956, fell for consideration:

We have no doubt that the word 'arrears' in respect of tax has been used in the sense of dues or what has become due by way of tax and that does not depend on assessment proceedings or quantification of the amount.

9. The sales tax authorities may not be entitled to enforce a liability to pay tax until a vaid assessment order quantifying the amount has been passed, but none the less it cannot be said that no liability to pay tax has arisen without a valid assessment.

10. We shall now advert to the next phase of the argument of Sri Dasaratharama Reddi that the assessment cannot be partly valid and partly invalid. Strong reliance in support of his submission is placed upon the use of the word 'assessment' in Section 19(3) of the Act which refers to the scope and power of the appellate authority in disposing of the appeals. True, the term 'assessment' has not been defined under the Act. Sections 19(3) and 21(4) do not specifically use the expression 'the assessment or any part thereof or the penalty or any part thereof. But, however, the word 'assessment' used therein must be construed in the light of the intendment of the Act and the provisions of Sections 19(1) and 21(1) of the Act. The assessment may be valid in respect of certain items of turnover and invalid in respect of other items. The provisions of the Act provide for provisional assessment and also submission of monthly or quarterly returns by a dealer, if he so chooses to do so. It is also open to the dealer to pay the tax provisionally on the admitted and returned turnover of his business. As pointed out earlier, sales tax could be paid on admitted items of turnover provisionally without awaiting the final order of assessment under Section 14 of the Act. Where the assessing authority accepts the return submitted by the dealer, the assessment shall be completed on that basis without any further enquiry. Where the assessing authority after due enquiry and opportunity to the dealer adds to the returned turnover and finally determines the total taxable turnover, the dealer is entitled to prefer an appeal in respect of the disputed items of turnover. The right of appeal provided under Section 19 is against any order passed or proceedings recorded by any assessing authority. Where the correctness of a portion of the order of assessment is in dispute, the dealer can prefer an appeal only in respect of the items objected to by him. Section 19(2) makes it abundantly clear that the appeal has to be preferred in a prescribed form and accompanied by a fee calculated at the rate of 1 per cent. of the tax under dispute subject to a. maximum of Rs. 50. The prescribed form requires the dealer objecting to any order including the order of assessment or a portion thereof to specifically indicate the disputed items of turnover which only can be called to be the subject-matter of the appeal. The right to prefer an appeal is against any order passed or proceedings recorded. No appeal can be filed by any dealer in respect of a portion of the assessment order with which he has no dispute or objection. The very right for the dealer to prefer an appeal conferred under Section 19 has been confined to any order or proceeding or any part thereof, to which he is not agreeable. The term 'assessment' used in Sections 19(3) and 21(4) must be construed in the light of the very right of appeal provided to the dealer under Sections 19(1) and 21(1) respectively of the Act. If so interpreted, the expression 'assessment' occurring in Sub-section (3) of Sections 19 and 21 most be held to be of wide import, so as to fake in a part or portion of the order of assessment which is objected to by the dealer or the State as the case may be. Hence it is not permissible to contend that a portion of the assessment cannot be valid if the other portion is invalid. For these reasons, we are of the firm view that the submission advanced on behalf of the petitioner that the sales tax is an indivisible and integrated whole and that a portion of an order of assessment cannot be valid, if the other portion is invalid, cannot be acceded to.

11. We shall now advert to the second submission of Mr. Dasaratharama Reddi. Relying upon the decision of the Supreme Court in Commissioner of Income-tax v. Amritlal Bhogilal [1958] 34 I.T.R. 130 at 136 (S.C.) and Income-tax Officer v. Seghu Buchiah Setty [1964] 52 I.T.R. 538 (S.C.), it was pressed upon us that when an appellate order modifies, reduces, enhances or confirms the order of assessment, the assessment is superseded and the only order which is enforceable is that of the appellate authority. The sum and substance of the petition herein is that the original order of assessment passed by the assessing authority on 31st March, 1960, determining the net taxable turnover at Rs. 1,19,051-7-0 is superseded by the subsequent appellate orders and there is no valid order of assessment even in respect of the admitted turnover in respect of which no appeal was preferred by the assessee. The decision in Amritlal Bhogilal and Co.'s case [1958] 34 I.T.R. 130 at 136 (S.C.) is not only not in favour of the assessee-petitioner herein but is against the plea advanced on his behalf. Therein it was held that the order of registration passed by the Income-tax Officer not being the subject-matter of appeal before the appellate authority did not merge in the order of the Appellate Assistant Commissioner overruling the view taken by the High Court that the order of the income-tax Officer granting registration must be deemed to have merged in the appellate order preferred against the composite order of assessment. The decision in Seghu BucMah Setty's case [1964] 52 I.T.R. 538 (S.C.) also does not, in our considered opinion, advance the plea of the petitioner herein. Therein, the question that fell for consideration was, whether the recovery proceedings passed on the certificate issued pursuant to an order of assessment, which was reduced in appeal, were or were not valid. The demand originally raised on the basis of the assessment order had to be revised in view of the appellate orders reducing tax liability of the assessee. In those circumstances, it was held by the majority that 'on the assessment order being revised in appeal, the default based on it and all consequential proceedings must be taken to have been superseded and fresh proceedings have to be started to realise the dues as found by the revised order'. Hence the aforesaid decision is distinguishable from the facts of the present case. The application of the doctrine of supersession or merger turns upon the scope of the statutory provisions conferring appellate or revisional jurisdiction and the nature of the appellate or revisional orders in each case as this doctrine is not one of rigid and universal application. There is a catena of decided cases on the scope and application of the doctrine of merger, Suffice it to refer to the recent decision of the Supreme Court in Stats of Madras v. Madurai Mills Co. Ltd. [1967] 19 S.T.C. 144 (S.C.), wherein it was ruled thus:

The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. For example, in Amritlal Bhogilal and Co.'s case [1968] 34 I.T.R. 130 at 136 (S.C.), it was observed by this court that the order of registration made by the Income-tax Officer did not merge in the appellate order of the Appellate Commissioner, because the order of registration was not the subject-matter of appeal before the appellate authority.

12. The real point that arises in the case on hand is, whether the turnover of Rs. 94,229-1-3 now in dispute was or was not the subject-matter of the appeals before the appellate authority as the application of the doctrine of merger depends upon the nature of the appellate orders and the scope of the appellate jurisdiction. As referred to earlier, the assessee disputed the taxability of the turnover of Rs. 23,547-5-9 comprising of two items and the remand order of the Sales Tax Appellate Tribunal as well as the first appellate tribunal would clearly indicate that the scope of further enquiry by the assessing authority after the remand was only with regard to those disputed items. Hence the admitted turnover of Rs. 94,229-1-3 was not the subject-matter of the appeal before the Sales Tax Appellate Tribunal. On a careful perusal of the relevant material orders of the first appellate authority and the Sales Tax Appellate Tribunal, we have no hesitation to hold that the amount of turnover now in dispute in this revision case was not the subject-matter of the appeals and the subject-matter of the appeals was confined only to the two disputed items. Applying the principle enunciated by the Supreme Court in State of Madras v. Madurai Mills Co. Ltd. [1967] 19 S.T.C. 144 (S.C.), we have no hesitation to hold that the revised order of final assessment passed by the Commercial Tax Officer in 1967 most be construed to be one relating to the two disputed items. The assessing authority has no jurisdiction to reopen the assessment in respect of the admitted turnover of Rs. 94,229-1-3, which is now in dispute, when the matter was remanded to him for fresh enquiry and disposal according to law after affording reasonable opportunity to the assessee. The scope of the enquiry, pursuant to the remand order, is confined only to decide about the taxability or otherwise of the turnover relating to those two disputed items.

13. The revised assessment should have been completed on or before 31st March, 1961, as indicated by the appellate authority. Hence the revised order passed by the assessing authority on 9th May, 1967, in respect of the two disputed items must be held to be barred by limitation. The invalidity of the assessment order in respect of the two aforesaid disputed items will not invalidate the assessment which was allowed to become final in respect of the turnover of Rs. 94,229-1-3 now in dispute.

14. We are fortified in this view of ours with an unreported decision of a Division Bench of this Court in G. Narsimhulu & Co. v. State of Andhra Pradesh (Writ Petition No. 4001 of 1968 dated 11th November, 1970). Therein, the learned Judges Gopal Rao Ekbote, J. (as he then was), and Ramachandra Raju, J., had to deal with a question similar to the one on hand. For the assessment years 1956-57 and 1957-58 the petitioners therein filed monthly returns of their turnover and provisionally paid the tax of Rs. 15,905 and Rs. 24,829 respectively. The assessing authority determined the turnover of the dealers at Rs. 11,25,449 and Rs. 13,01,863.54 and the tax of Rs. 18,776 and Rs. 27,278.50 respectively. The appeals preferred by the dealers in respect of the disputed turnover of Rs. 1,10,188-11-3 and Rs. 1,36,203-0-0 were allowed and the cases were remanded to the assessing authority for fresh disposal in the light of the observations made therein. No final assessment orders, in accordance with the directions given in the remand orders, were passed within the period of limitation prescribed therefor. The petitioners sought the issuance of a writ of mandamus directing the sales tax authorities to return the sum of Rs. 42,394.13 together with interest towards the tax provisionally paid by them for the assessment years 1956-57 and 1957-58. In those circumstances, the only question that posed for determination by the learned Judges was, whether the orders of the appellate authority set aside the assessment orders in their entirety or only to a limited extent. On a consideration of the entire facts it was held that the subject-matter of the appeal was only in respect of the items of disputed turnover and it is not the intention of the appellate authority to travel beyond the scope of the appeal and set aside the entire order of assessment which was not disputed even by the dealer and, therefore, it cannot be held that the entire order of the assessing authority was set aside. A direction was issued to the sales tax authorities to calculate and determine the exact amount of tax due and payable by the dealers therein in respect of the turnover which was allowed to become final and pass appropriate orders to refund any excess tax collected by them on the turnover relating to the disputed items for which no valid assessment was made.

15. The unreported judgment of our learned brother Vaidya, J, in Writ Petition No. 6149 of 1970, dated 25th February, 1972 Since reported as G. Lakshminarayana v. Commercial Tax Officer, First Circle, Hyderabad, and Anr. [1974] 33 S.T.G. 558 on which strong reliance has been placed by Sri Dasaratharama Reddi is distinguishable from the facts of the present case. Therein, the entire turnover on some ground or other was in dispute before the appellate authority. The inclusion of a particular amount of turnover was disputed in appeal. With regard to the balance of turnover the rate of tax payable by the dealer was challenged. Hence the remand order in that case was construed to be in respect of the entire turnover which was the subject-matter of the appeal. That apart, it is represented by Sri Mahadev that the department is preferring an appeal to a Division Bench of this Court questioning the correctness of the view taken by the learned Judge.

16. The decisions of the Allahabad High Court in Durga Dutt Chunni Lal v. State of Uttar Pradesh [1969] 23 S.T.C. 432 and Ram Kishan Dass Brij Mohan Lal v. State of Uttar Pradesh [1971] 27 S.T.C. 312, cited on behalf of the assessee for the purpose of showing that the principle enunciated by the Supreme Court in Seghu Buchiah Setty's case [1964] 52 I.T.R. 638 (S.C.) has been applied to sales tax cases by the Allahabad High Court, do not render much assistance to the petitioner herein, as we have pointed out earlier that the principle enunciated by the Supreme Court in Seghu Buchiah Setty's case [1964] 52 I.T.R. 638 (S.C.) has no application to the case on hand.

17. We may add that the assessee is not entitled to claim refund of the amount of tax already paid by him in respect of the admitted or undisputed turnover for the year in question The distinction between the scope of recovery proceedings and the claim for refund of sales tax under Section 33 of the Act must be borne in mind. The sales tax authorities may not be entitled to enforce sales tax liability accrued or arisen on the completion of the transaction of sale or purchase until a valid assessment is made and a demand for a specific sum of money is raised. But none the less the liability to pay sales tax on the admitted turnover has already been fixed. The quantum of tax on such admitted turnover has been ascertained and, in fact, a valid assessment has been made in the instant case by the assessing authority. The assessment order passed originally by the assessing authority is valid to the extent of the admitted turnover and that, portion of the order has been allowed to become final. The other disputed part of the assessment order was the subject-matter of the appeals and the remand order is confined to those disputed items. The right to claim refund under Section 33 of the Act is only in respect of any tax provisionally paid by a dealer in excess of the tax due and payable by him. Section 33-D prohibits the assessee from questioning the correctness of the assessment which has become final and conclusive. Therefore, it is not open to the petitioner to question the correctness of that portion of the assessment order relating to the admitted turnover as the same was allowed to become final.

18. For all the reasons stated, we have no hesitation to answer the question in the negative and in favour of the sates tax department and dismiss the revision case with costs. Advocate's fee is fixed at Rs. 100.


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