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2004 DIGILAW 176 (HP)

JAI PRAKSH ASSOCIATES LIMITED v. STATE OF H. P.

2004-07-28

M.R.VERMA, V.K.GUPTA

body2004
JUDGMENT V. K. Gupta, C J. (Oral): - The Assessment Order passed by the Assessing Authority imposing tax and levying interest against the petitioner was set aside by the Appellate Authority pursuant to the appeal filed by the writ petitioner under Section 30 of the H.P. General Sales Tax Act, 1968. The Appellate Authority apparently felt convinced and satisfied that the Assessment Order passed by the Assessing Officer was wrong and, after hearing the parties and on consideration of all relevant aspects of the matter, it came to the conclusion that the levy of the tax and the imposition of the interest liability upon the petitioner was not justified. It accordingly set aside the Assessment Order passed by the Assessing Authority which was impugned before it in the said appeal filed by the petitioner. 2. Pursuance to the decision in the aforesaid appeal, the petitioner took steps for refund of the amount in question and in fact the respondents also acted in the direction of-processing the petitioners refund request. As the aforesaid was happening, the petitioner received the impugned communications whereby it was called upon to explain certain situations. The petitioner particularly felt aggrieved by. the impugned communication dated 13.2.2004, (Annexure P-10), whereby it was directed to appear before the Assessing Authority along with relevant records in order to "get the assessment order re-examined." 3. The reply to the writ petition has been filed by the respondents, Mr. Chandel, learned Advocate General appearing for the respondents has been drawn our attention to Rule 49 of the HP. General Sates Tax Rules, 1970 with a view to support the aforesaid stand of the respondents in issuing the aforesaid two impugned communications dated 7.2.2004 (Annexure P-9) and 13.2.2004 (Annexure P-10). Chandel, learned Advocate General appearing for the respondents has been drawn our attention to Rule 49 of the HP. General Sates Tax Rules, 1970 with a view to support the aforesaid stand of the respondents in issuing the aforesaid two impugned communications dated 7.2.2004 (Annexure P-9) and 13.2.2004 (Annexure P-10). We have perused Rule 49 (supra) and find that even though this Rule does stipulate that the Assessing Authority, in situations where the refund amount exceeds Rs.20,000/- has to submit the proposal and the record of the case together with his recommendations to the Commissioner for orders, it [Rule 49 (supra)] apparently has no application to a fact situation where an assessment order has been set aside by an Appellate Authority in terms of Section 30 of the Act and the consequence of the judgment of the Appellate Authority is the entitlement of the Assessee-appellant to receive the refund of the tax amount and the interest thereupon, which it of course had to pay originally by the force of the Assessment Order. Clause (1) of Rule 49 (supra) may be noticed to gather the legislative intent, which is patently discernible on its very face. Clause (1) of Rule 49 (supra) may be noticed to gather the legislative intent, which is patently discernible on its very face. The Rule reads thus:- "(1) When the Assessing Authority is satisfied after such scrutiny of accounts and such enquiries as it considers necessary that the claim for refund is admissible, he shall determine the amount of refund due and shall, if the amount to be refunded:- (i) does not exceed two thousand rupees, record an order sanctioning refund; (ii) exceeds to thousand rupees, but does not exceed ten thousand rupees, submit the record of the case together with his recommendations to the Assistant excise and Taxation Commissioner or Excise and Taxation Officer In-charge of the District, as the case may be, for orders; (iii) exceeds ten thousand rupees but cues not exceed twenty thousand rupees, submit through Assistant excise and Taxation Commissioner or Excise and Taxation Officer In-charge of the District, the record of the case together with his recommendations to the Deputy Excise and Taxation Commissioner or other Officer In-charge of the zone (except Flying Squards) concerned, as the case may be, for orders; and (iv) exceeds twenty thousand rupees, submit through the Officers In-charge of the District and Zone concerned, the record of the case together with his recommendations to the Commissioner for orders; and the Assessing Authority shall record the order sanctioning the refund mentioned in clauses (ii), (iii) and (iv) only in accordance with the orders made by authorities specified in respective clause," 4. The scheme of the HP. General Saler Tax Rules, 1970 and the context in which Rule 49 has been placed clearly points out unmistakably the legislative intention that Rule 49 caters to only those situations where the Assessing Authority is required, all by himself, without there being any direction from any superior Appellate Authority, or without being bound by any such Appellate Order, based on its own satisfaction and after scrutiny of accounts and upon holding such enquiries as it deems or considers necessary, that the refund is admissible to an assessee. Rule 49 does not, therefore, in the context in which it is applicable, cater to a situation where the refund is necessitated by virtue of an order passed by the Appellate Authority under Section 30 of the Act. Rule 49 does not, therefore, in the context in which it is applicable, cater to a situation where the refund is necessitated by virtue of an order passed by the Appellate Authority under Section 30 of the Act. We are saying so because the operation and implementation of the Appellate Authoritys order, especially such order which has assumed finality in the eyes of law and the implementation whereof results in the assessee being held entitled to refund, is not defendant upon the satisfaction of the Assessing Authority nor would it depend upon on any scrutiny of accounts or the making of any enquiry by him. Actually sub-section (3) of Section 30 of the Act itself lays down that the order passed by the Appellate Authority assumes- finality, unless it is challenged in Revision. Admittedly in the present case the order was passed by the Appellate Authority as far back as on 28th June, 2002 and it is the undisputed case of the respondents that this order had not been challenged in any Revision before the Commissioner under Section 31 of the Act nor has the Commissioner suo motu exercised his revisional jurisdiction so far with respect to, or against the said order passed by the Appellate Authority (of course we should not at all be construed to have taken a view in this judgment, by the aforesaid process of reasoning that the Commissioner was or is debarred from exercising his revisional jurisdiction, if ever so advised, of course it being permissible only on merits and in accordance with law). 5. Rule 49 (supra), therefore, in the facts and circumstances of this case cannot be said to have any application to a situation where the refund is necessitated because of the order passed by the Appellate Authority. Rule 49 has application only to such fact situations where a refund request is made by an assessee or otherwise the refund becomes necessary, de hors any order passed by an Appellate Authority setting aside the Assessment Order passed by the Assessing Authority, or for that matter an authority exercising revisional jurisdiction with respect to an original order passed by the Assessing Authority or the Appellate Order passed-by the Appellate Authority. If that be not the legislative intention, the question of the Assessing Authority arriving at its own satisfaction or conducting a scrutiny of the accounts or making an enquiry would become redundant because, conversely speaking once an Appellate Authority has set aside an assessment order, it would not be open to the Assessing Authority to sit in judgment over the Appellate Authoritys order by going over all over again into the questions relating to its own, i.e., Assessing Authoritys satisfaction, the scrutiny of accounts or the making of any equity by him, i.e., the Assessing Authority, for deciding whether the refund is admissible or not. When by the force of an order passed by the Appellate Authority ah assessee becomes entitled to the refund of the tax amount or the interest paid thereupon, no situation or circumstance can be allowed to come in the way of the assessee getting that refund, not even Rule 49 (supra), except of course some arithmetical error, based on which the Assessing Authority thinks that while fully complying with and implementing the judgment of the Appellate Authority, some arithmetical re-calculation perhaps might be necessary to determine and quantify the amount to which the assessee is held entitled by way of refund on the force of the Appellate Order. That is the circumscribed and limited jurisdiction of the Assessing Authority under Rule 49 (supra) and it cannot be permitted to traverse or go beyond that limited jurisdiction. Based on the aforesaid observations, we have no doubt in our minds that the respondents in this case would conduct themselves strictly in accordance with law and would not create a situation where they can be accused of transgressing their jurisdiction. 6. The petitioner accordingly may submit its reply to the impugned communications because, based on our aforesaid observations we feel that the petitioner should have no apprehension that the submission of the reply by the petitioner to the impugned communications will cause or tend to cause any prejudice to the petitioner. Once the petitioner submits its reply to the impugned communications, based on the aforesaid observations, the respondents shall act strictly in accordance with law and process the petitioners refund request and take it to its logical conclusion within a period of one month from the date they receive the petitioners reply. 7. The petition is accordingly allowed on the aforesaid terms. No order as to costs. 7. The petition is accordingly allowed on the aforesaid terms. No order as to costs. CMP No. 692/2004 8. In view of the disposal of the main writ petition, the present application is also disposed of.