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Deputy Commissioner of Commercial Taxes, Coimbatore Division Vs. M.K. Muthuswami Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Civil
CourtChennai High Court
Decided On
Case NumberTax Cases Nos. 30, 31 and 53 of 1963 (Revision Nos. 19, 20 and 34)
Judge
Reported in[1964]15STC732(Mad)
AppellantDeputy Commissioner of Commercial Taxes, Coimbatore Division
RespondentM.K. Muthuswami Chettiar and ors.
Appellant AdvocateG. Ramanujam, Adv. for ;Government Pleader
Respondent AdvocateC. Venkatraman, Adv. in T.C. Nos. 30 and 53 of 1963 and ;S. Padmanabhan, Adv. in T.C. No. 31 of 1963
DispositionRevision dismissed
Excerpt:
- - the three revision cases therefore fail and are dismissed......31 of 1963 in which it is applied. section 4 of the 1959 act is the charging section in respect of declared goods and reads thus :-4. tax in respect of declared goods.-notwithstanding anything contained in section 3, the tax under this act shall be payable by a dealer on the sale or purchase inside the state of declared goods at the rate and only at the point specified against each in the second schedule on the turnover in such goods in each year, whatever be the quantum of turnover in that year :provided that where a tax has been levied under this section in respect of the sale or purchase of declared goods and such goods are sold in the course of inter-state trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be.....
Judgment:

Ramakrishnan, J.

1. The question that has arisen for decision in these three revision cases is identical but with this difference that in T. C. No. 31 of 1963 the matter was dealt with under the 1959 Act, amended, whereas in T. C. Nos. 30 and 53 of 1963, the matter was dealt with under exactly analogous provisions of the Sales Tax Act of 1939. For the sake of simplicity, we shall take the new Act, and T. C. No. 31 of 1963 in which it is applied. Section 4 of the 1959 Act is the charging section in respect of declared goods and reads thus :-

4. Tax in respect of declared goods.-Notwithstanding anything contained in Section 3, the tax under this Act shall be payable by a dealer on the sale or purchase inside the State of declared goods at the rate and only at the point specified against each in the Second Schedule on the turnover in such goods in each year, whatever be the quantum of turnover in that year :

Provided that where a tax has been levied under this section in respect of the sale or purchase of declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be prescribed.

2. Section 12 provides for the procedure for assessment. Section 31 prescribes for an appeal against an order by the appropriate authority under specified sections which include Section 12.

3. In the present case, declared goods falling within the Second Schedule were assessed by the assessing authority in this State, and subsequently on proof that the assessees had sold the same goods in the course of inter-State trade and had paid sales tax on such sales, the assessees sought for refund before the assesssing authority under the proviso to Section 4. The assessing authority refused the refund. The assessees appealed to the Appellate Assistant Commissioner, who also refused the refund. Against the order of the Appellate Assistant Commissioner, an appeal was filed before the Sales Tax Appellate Tribunal which held that the assessee was entitled to refund and granted it. One of the arguments urged before the Sales Tax Appellate Tribunal was that appeals to the Appellate Assistant Commissioner on the question of refund were incompetent, but the Tribunal repelled that argument. The present revision cases deal with the short question whether an order granting or refusing refund under the proviso to Section 4 is an order which falls under Section 12 of the General Sales Tax Act, 1959, and is therefore appealable under Section 31 of that Act.

4. We are of the opinion that the view of the lower Appellate Tribunal is right. As mentioned by us already, Section 4 is the charging section in respect of declared goods and Section 12 provides the procedure for enforcing the charging section. The learned Government Pleader wants us to disassociate the provision for refund in the proviso to Section 4, and treat that provision for refund as a provision that stands apart from the charging provision, and argues that the order refusing or granting refund is susceptible only of revision and not of appeal. We are not able to accept this argument. The proviso constitutes an essential limb of the charging section. Therefore, whenever a charging section is applied to impose a liability to assessment, it is implicit that the assessment so levied, is liable to be modified or revised and the assessee granted a right to obtain a refund, on proof of the circumstances which attract the proviso. Therefore, after the conclusion of the assessment under the main body of Section 4, when the assessee approaches the assessing authority and proves the conditions stated in the proviso, what he seeks in essence is a modification of the original assessment order and he can be considered as seeking a review of the original order itself so as to enable him to get a refund of the tax imposed. From this point of view, the enforcement of the proviso cannot be disassociated from the assessment itself, but must be treated as a continuation or further step taken in the assessment proceeding itself, in pursuance of the proviso to the charging section. We therefore hold that the procedure for obtaining a refund is also one under Section 12 of the 1959 Act, and is subject to appeal under Section 31.

5. The same reasoning will apply to the proceedings taken under the old 1939 Act also, and which form the subject-matter of two of the revision cases before us. The three revision cases therefore fail and are dismissed. There will be no order as to costs.


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