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Shivram Bari Gadre and ors. Vs. the Commercial Tax Officer of Collotola Charge and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case Number C.R. Nos. 875-876 (W) of 1964 and 1082-1083 (W) of 1964
Judge
Reported in[1969]23STC98(Cal)
AppellantShivram Bari Gadre and ors.
RespondentThe Commercial Tax Officer of Collotola Charge and ors.
Appellant Advocate Noni Coomar Chakraborty, ;Ajit Buxi and ; K. Banerjee, Advs.
Respondent Advocate Nirmal Chakravarty and ; Samar Dutt, Advs.
Cases ReferredBombay v. The Assessing Authority
Excerpt:
- .....authority, if he is satisfied that the refund is due, is to record the order sanctioning the refund. rule 62 does not provide only for recording an order sanctioning refund but makes it obligatory upon the assistant commissioner to record his order upon the application submitted by the assessing authority within 30 days and communicate it to the commercial tax officer from the date of submission of such application.8. this brings me to the question as to the scope and extent of power conferred upon the assistant commissioner under rule 62. in other words, it is to be seen whether the assistant commissioner is empowered to record the order refusing to refund the excess amount in his discretion or he is bound to record his order in writing for refund of the amount whenever such an.....
Judgment:

A.K. Sinha, J.

1. These four rules are taken up together for the sake of convenience. In the first two rules the petitioners pray for refund of certain amounts lying as excess amounts with the Commercial Tax Officer in respect of assessments of two different periods and the latter two rules are directed against certain notices issued by the Commercial Tax Officer for review of the assessments in respect of those periods.

2. The facts in these rules are inter-connected and may be briefly stated as follows :

3. The petitioners carry on business in co-partnership under the name and style of Messrs Harry & Co. at 54, Ezra Street, Calcutta. This firm is a registered dealer and holds a registration certificate No. 301 A(CL) under the provisions of the Central Sales Tax Act, 1956, read with the Bengal Finance (Sales Tax) Act, 1941, and rules framed thereunder (hereinafter referred to as the Central Act, the Bengal Act and the Rules respectively). The petitioners paid in advance Rs. 8,274.37 nP. along with the returns submitted for the quarters ending with the accounting year on 14th day of Sravan Sudi 2015 and Rs. 6,885.99 nP. for the four quarters ending with the accounting year on the 14th day of Sravan Sudi 2014 respectively on account of sales tax along with the returns. After deducting the amounts assessed by the Commercial Tax Officer for these two years, the petitioners were entitled to a refund of Rs. 6,758.20 nP. and Rs. 6,259.88 nP. for these two accounting years. The petitioners submitted refund applications before respondent No. 1 in accordance with the provisions of the Bengal Act but respondent No. 2 failed within 30 days from the date of submission of such refund application or even thereafter to pass orders for refund in writing and communicate the same to respondent No. 1 for issue of refund payment order (cash) as called for by the petitioners.

4. Not having received the amount, the petitioners again sent a letter dated 9th December, 1963, calling upon respondent No. 2 for issue of refund payment order of the above amount. But in spite of receipt of such a letter no steps were taken. The petitioner then moved this Court in writ jurisdiction and obtained two rules from this Court upon the respondents for refund of the said excess amount.

5. Thereafter, by two notices in Form IX dated 14th August, 1964, respondent No. 1 started separate proceedings being Cases Nos. 1/64-65 and 2/64-65 for review of the aforesaid assessment orders dated 6th August, 1963, and 4th June, 1962, inter alia, on grounds that the petitioners' partnership business in States other than West Bengal appear to be separate and independent units with different trade names and, therefore, the sales which were not taxed in the earlier assessments would be treated as interstate sales and thus charged to tax. That is how the petitioners felt aggrieved and again came up to this Court and obtained the other two rules for quashing these two proceedings.

6. Upon these facts Mr. Noni Coomar Chakraborty, the learned Advocate for the petitioners contended in the first place that admittedly the petitioners were entitled to get refund of the respective amounts mentioned from the Commercial Tax Officer and, accordingly, they duly made application within 12 months from the date of assessment of tax but the Assistant Commissioner of Commercial Taxes has wrongfully and illegally withheld the refund. Mr. Chakraborty relied on Rule 62 of the Rules and submitted that the Assistant Commissioner was bound to record his order in writing for refund and communicate it to the Commercial Tax Officer for necessary action within 30 days from the date of submission of application under Rule 61. In order to examine the correctness of this contention it is necessary to look into the several rules relating to refund of excess amount of tax paid by an assessee.

7. Before I do so I must notice that Section 12 of the Bengal Act confers upon the Commissioner the power of refund in the prescribed manner to a dealer any amount of tax or penalty paid by him in excess of the amount due from him under the Act either by cash payment or at the option of the dealer by deduction of such excess from the amount of tax due in respect of the other periods upon the application of the dealer within a certain period mentioned in the section. Now Rules 59 to 66 lay down the manner under which such refund would be made to the assessee by the assessing authority. To be precise, for the purpose of the present case it would be sufficient if I confine myself to Rule 59 lays down how an application by a dealer for refund of the excess tax should be made to the assessing authority. Rule 60 enables the assessing authority to record and sanction refund and to communicate the order to the applicant except as provided in Rule 61 and Rule 62, if it is satisfied that such refund is due. Rule 61 confers power upon the Commercial Tax Officer to refund to the extent of Rs. 250 beyond which the application together with his opinion is required to be submitted by him to the Assistant Commissioner for orders. Rule 62 makes it obligatory upon the Assistant Commissioner to record his order in writing and to communicate to the Commercial Tax Officer for necessary action within 30 days from the date of submission of the application under Rule 61. It will thus be seen that there is a difference of language between Rule 60 and Rule 62. Whereas under Rule 60 the assessing authority, if he is satisfied that the refund is due, is to record the order sanctioning the refund. Rule 62 does not provide only for recording an order sanctioning refund but makes it obligatory upon the Assistant Commissioner to record his order upon the application submitted by the assessing authority within 30 days and communicate it to the Commercial Tax Officer from the date of submission of such application.

8. This brings me to the question as to the scope and extent of power conferred upon the Assistant Commissioner under Rule 62. In other words, it is to be seen whether the Assistant Commissioner is empowered to record the order refusing to refund the excess amount in his discretion or he is bound to record his order in writing for refund of the amount whenever such an application together with the opinion of the Commercial Tax Officer under Rule 61 is placed before him. In my view, the difference that exists between the two rules is only of form and not of substance. Both these rules aim at achieving the same result on similar considerations. It appears that excepting Section 12 there is no other provision either restricting the right or dealing with the right of a dealer in any other way to get refund of the excess amount of tax or penalty. Under this section a duty is cast upon the Commissioner to refund to a dealer any amount of tax or penalty paid by him in excess subject only to certain conditions contained therein. The Assistant Commissioner who is the delegated authority under Rule 62 of the Rules is under a duty to record his order upon the application for refund submitted to him together with his opinion thereon by the

9. Commercial Tax Officer under Rule 61. In my view, in recording such order the only consideration that may be made by the Assistant Commissioner is whether the conditions specified in Section 12 have been fulfilled along with the matters provided in Rules 59 and 61. All other considerations will be wholly extraneous and irrelevant. Likewise in dealing with an application for refund the Commercial Tax Officer may also have similar considerations even though the language of Rule 60 is somewhat different. In other words, if as a fact it is found by the Assistant Commissioner or the Commercial Tax Officer, as the case may be, that the amount of tax or penalty paid by such dealer on determination of the assessment is in excess of the amount due from him under the Act and if the application is made within the statutory period contained in the proviso to Section 12 and in the manner laid down under Rule 59, then the Commercial Tax Officer or the Assistant Commissioner has no power to withhold refund of such excess amount.

10. In the instant case, what happened was that after the applications by the petitioners were filed in compliance with Rule 59, the Commercial Tax Officer submitted the applications together with his opinion to the Assistant Commissioner. Thereafter, the Assistant Commissioner entered into correspondence with the Commissioner and in consultation with him or at his suggestion withheld the refund of the respective amounts claimed by the petitioners on the view that as the petitioners were carrying on business under different trade names outside West Bengal, the impugned assessments were liable to be reviewed as they could not be treated as branches of the same partnership firm but should be treated as separate legal entities; even in doing so excepting the letter addressed by the Assistant Commissioner to the Commissioner dated 17th August, 1963, no order in writing was made by the Assistant Commissioner. In my view, the decision or action taken by the Commissioner or the Assistant Commissioner withholding the refund is entirely misconceived and cannot be supported. The true effect of the letter, it seems to me, written by the Assistant Commissioner to the Commissioner (annexure Y to the affidavit-in-opposition) is that he himself reviewed at the time of dealing with the application for refund the impugned assessment which is not permitted under Sub-section (2) of Section 12 of the Bengal Act. Even assuming it is not so, then also considerations that steps would be taken or have already been taken for review of the impugned assessments are all irrelevant and extraneous to an order required to be made under Rule 62 of the Rules.

11. The learned Government Pleader contended that review is a continuation of the assessment proceeding and, therefore, until or unless the assessment is finalised on such review, the assessing authority and the Assistant Commissioner of Commercial Taxes are within their power to withhold the refund of the amount claimed by the petitioners. I cannot agree. There is nothing in the Act or in the Rules to show that such a power exists. Provisions of Section 12 clearly indicate that the dealer would be entitled to a refund within 12 months from the date of the assessment of tax or the date of the imposition of penalty or within 6 months from the date of any final order passed in appeal, revision or review under Section 20 or 21 whichever period expires later. Therefore, the option to claim refund within the respective statutory periods lies with the assessee and not with the assessing authority. Clearly, therefore, in the instant case the Assistant Commissioner has no power to withhold refund of payment of the excess amount claimed by the petitioners simply because suo motu review of original assessments by the Commercial Tax Officer is either proposed or pending. The right of the assessee accrued for such a refund immediately after assessment has been made by the Commercial Tax Officer. This view which I have taken finds support in a decision of the Supreme Court reported in State of M.P. v. Haji Hasan Dada : [1966]2SCR854 . While dealing with identical questions under the C.P. and Berar Sales Tax Act and the effect of the amendment of Section 13 thereof it was held that the right to claim refund arises when a tax is determined and unless the order of assessment is actually set aside by appropriate proceedings, full effect must be given to it even if it be later on found that the order was erroneous under law. It was held that the Assistant Commissioner had no power to review his own decision nor he is authorised to ignore his previous order upon the application for refund. That being so the respondents have no power to withhold the refund of excess tax and any such decision or action to the contrary is liable to be struck down as invalid.

12. It was next contended by the learned Government Pleader that no writ petition is competent for refund of any tax even if it is found to have been paid by the dealer in excess of the amount. I am unable to accept such a broad contention. Reliance was, however, placed on a decision of the Supreme Court reported in Suganmal v. State of Madhya Pradesh : [1965]56ITR84(SC) , and it was submitted that ordinarily a writ of mandamus directing the State to refund the money is not maintainable as a suit can always be instituted against the authority which illegally collected such tax for which it is open to the State to take all possible defences to the claim which cannot be appropriately raised and considered in the exercise of writ jurisdiction. I am afraid, this case is of no assistance to the respondents. In this case, there was assessment against the aggrieved assessee under the Indore Excess Profits Duty Order, 1944, but on appeal these assessment orders were all quashed. Thus, the State Government having refused to refund the tax already paid, the assessee moved the Madhya Pradesh High Court in writ jurisdiction solely for refund of tax, which was illegally collected. It was held that such a petition solely for refund of tax after the assessment orders which were set aside in appeal was not maintainable unless the appellant could bring his claim for such refund within any statute or statutory rule and that Rule 8(a) of the Indore Industrial Tax Rules, 1927, did not provide for any refund of tax after the final assessments were set aside by the appellate authority. So in that context, the relief under Article 226 was refused and the party was referred to a regular suit. This case, as I find, as also another decision of the Supreme Court, vide State of Madhya Pradesh v. Bhailal Bhai : [1964]6SCR261 , support, on the contrary, the case of the petitioner. Here the petitioner based his claim for refund under the statute or statutory rules. If, therefore, there is a breach of such statute or statutory duties on the part of the authorities on whom such duty is cast by the statute or the statutory rules this Court in writ jurisdiction will normally use its discretion by issuing appropriate writ directing such authorities to carry out the obligations or duties created by the statute or the statutory rules. In the present case the Assistant Commissioner has clearly failed in his duty to record the order in writing within 30 days upon the application for refund as required under Rule 62 and this failure on his part has made himself amenable to the writ jurisdiction of this Court.

13. It is not the case of the respondents that the amount as alleged in both the petitions are not excess tax nor it is suggested that the application was not made within time in the prescribed manner. Prima facie, therefore, there cannot be any impediment in the way of refund of the excess amount paid by the petitioners. Even so it is not for this Court to decide finally as to whether there is any obstacle against refund of the excess amount regard being had to the provisions of Section 12 and the rules prescribed for refund of the excess amount. It is an obligation coupled with a duty cast upon the Assistant Commissioner to finally record in writing an order in accordance with Rule 62. In making such order, as already indicated by me earlier, excepting the matters provided under Section 12 and the prescribed Rules 59 to 62 of the Rules for refund of the excess amount, all other considerations will be totally irrelevant and extraneous. In that view of the matter, the entire decision or action withholding refund of the amounts claimed by the petitioners by the respondents must be struck down as invalid.

14. The other contention of Mr. Chakravorty is that the impugned notices starting suo motu review of both the assessment orders in question are wholly incompetent and without jurisdiction. It was argued that the grounds on which such review has been initiated are absolutely untenable because the petitioners carry on business as a partnership firm under different trade names as one unit. The partners being the same, they are entitled to carry on business under different trade names at different places but because the firm carries on business under different names, that by itself will not constitute these businesses under different trade names as separate independent businesses. It is said that the firm has no existence apart from these partners. Reliance was placed on several decisions reported in Brojo Lal Saha Banikya v. Budh Nath-Pyari Lal Das : AIR1928Cal148 , Behara Lachanna Patnaick, In re [1952] 3 S.T.C. 222, International Cotton (Waste) Corporation, Bombay v. The Assessing Authority, Bhatinda, and Ors. [1965] 16 S.T.C. 1045, and it was contended that the partners being the same, the firm although carrying on business under different trade names was rightly accepted as one unit and accordingly, the impugned assessment was rightly made. That being so, there was no error apparent on the face of the record and respondent No. 2 had no jurisdiction to start suo motu review.

15. It was also contended by Mr. Chakraborty that the entire proceeding for review was mala fide. Such review, it was sufficiently clear, was started only for the purpose of withholding the refund of the excess amount of tax paid by the petitioners and this would be apparent from the correspondence that passed between the Commissioner and the Assistant Commissioner resulting in withholding the refund. It was, therefore, urged that the impugned notices or all other or further proceedings for review should be cancelled. I cannot agree. It may be that the grounds given in the impugned notices for review of the original assessment orders may not be valid grounds. It may also be that there are circumstances which may ultimately lead to establish that the proceedings were not bonafide but these are questions which have to be decided by the Commercial Tax Officer himself.

16. It is not the case of the petitioners that the Commercial Tax Officer under the Act has no power to review the assessment made by him of his own motion. All that is said is that the grounds given in the notices for such review were not sufficient and the proceedings adopted were mala fide. Therefore, the question is not one of lack of jurisdiction but of ultimate rejection of review owing to absence of valid grounds. Then again whether or not there are proper materials for reviewing the assessment already made are again questions of fact. To be precise, in the instant case, admittedly the petitioners are carrying on business as partners under different trade names at different places. Whether these businesses are carried on as one unit or as separate or independent businesses although the partners are the same is a matter which is to be enquired into and established on a consideration of proper materials or evidence that may be adduced. It is true that under the certificate of registration it is also mentioned that the partnership firm is also carrying on business under different trade names in different places but. that fact by itself does not conclusively establish that the businesses carried on by the partners, although under different trade names, form one unit. These questions again cannot be conveniently decided by this Court in writ jurisdiction. Considering all these it cannot be held that the Commercial Tax Officer had no power or jurisdiction to issue notices for reviewing the impugned assessments of his own motion. I, therefore, find no substance in the contention raised by the petitioner. I make it clear, however, that all the objections raised by the petitioners are kept open and I do not express any opinion on them. The petitioners will be at liberty to press all such objections or any other objection available to him under the law before the Commercial Tax Officer in the impugned proceeding for review.

17. The result is the petitions in C.R. Nos. 875(W) and 876(W) succeed. Entire decision or action of the respondents not to refund the excess amounts of tax to the petitioner on the ground of pendency of review is quashed and I direct respondent No. 2 to record appropriate orders in writing upon the applications of the petitioners for refund of the said amounts in accordance with law and in the light of the observations made above. These rules are made absolute to the extent indicated above. Let a writ in the nature of certiorari and mandamus in both these rules issue accordingly.

18. The other petitions in C.R. Nos. 1082(W) and 1083(W) fail. Subject to the observations made above these two rules are discharged.

19. There will be no order as to costs in all these four rules.


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