LexCOMMNR. OF SALES TAX, U.P. versus M/S HIND LAMPS LTD.
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[2008] 11 S.C.R. 594 A · COMMNR. OF· SALES TAX, U.P. ,;. v. M/S HIND LAMPS LTD. (Civil Appeal No. 4060 of 2006) B JULY 31, 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] ·" Uttar Pradesh Trade Tax Act, 1948: $. 29, proviso, Exp/a- nation I and II - Refund - Adjustment of certain amounts by c the dealer, with reference to .s.29, from the amounts payable as tax - Held: It is not open to dealer to make any adjustment on his own - Power of adjustment lies with the assessing au- thority under the Act. The respondent-Dealer was required to pay tax in D respect of returns filed for the months of April, May and August, 1977. In respect of the assessment years i.e. 1969- 70 to 1971-72, appellant had filed appeals before the As- ~ sistant Commissioner (Judicial) Sales Tax, which were ~ allowed and the matter was remanded for re-consider- E ation of the Assessing Authority. ~ ' According to the dealer, Rs.74,8337-; Rs.95,506/-; Rs.1,35,666/-; Rs.2,38,435/- was required to be refunded for 1968-69, 1969-70, 1970-71and1971-72. The dealer ad- F justed aforesaid amounts from the amounts payable as tax in respect of three months i.e. April, May and August, 1977. But, in the final assessment proceedings, the As- ,. sessing Officer refused to give credits of the amounts on the ground that there was no provision for such adjust- ment and the dealer cannot himself adjust the amounts, G if any, refundable to him. Consequently, interest for late payment was levied. The order was confirmed by the first ~ Appellate Authority. In appeal, the Tribunal, affirmed the view of the Assessing Officer and first Appellate Author- "f- ity. On revision, High Court held that it was open to the H 594 COMMNR. OF SALES TAX, U.P. v. MIS HIND 595 LAMPS LTD. assessee to make the adjustment with reference to s.29 A of the Uttar Pradesh Trade Tax Act, 1948. In appeal· to this Court, revenue contended that the High Court clearly misconstrued the provisions contained in s.29 of the Act and, therefore, the view of the Assess- B ing Officer as affirmed by the first Appellate Authority arid the Tribunal should not have been interfered with. Allowing the appeal, the Court HELD: 1.1 The approach of the High Court is clearly erroneous. A bare reading of the proviso to s.29 of Uttar c Pradesh Trade Tax Act, 1948 shows that the amount must have been found to be refundable and due to be refunded. No authority has found any amount to be refundable. Stand of the dealer that since the matter was remanded by the appellate authority any amount paid beyond the D admitted tax has to be construed as refundable. This plea -ol is clearly untenable. [Para 7] [599-A,B] 1.2. The expression used is "found to be refundable". In other words, it must be as a result of adjudication. In E the instant case, there is no such adjudication. Even oth- erwise, the power of adjustment lies with the authority under the Statute. While granting refund, he has to first find out whether there is any amount which has to be adjusted against tax or other amounts outstanding F against the dealer under the Act or the Central Act and ~ the balance has to be refunded. The dealer cannot make any adjustment on his own, and not certainly under the proviso to sub-section (1) of s.29 of the Act as has been held by the High Court. Explanation I makes the position further clear that the date of refund shall be deemed to be G the date on which first intimation regarding preparation of the refund voucher is sent to the dealer in the pre- scribed manner. Obviously, therefore, date of refund is re\atab\e to the intimation regarding the preparation of the refund voucher. Explanation II shows that the expression H 596 SUPREME COURT REPORTS [2008] 11 S.C.R. A "refund" includes the adjustment which is permissible under the proviso to sub-section (1). It is to be noted that the manner in which the refund has to be granted is pro- vided in Rules 89 and 90 appearing in Chapter XV. That being so, the High Court was not justified in its view in B holding that the dealer could itself make adjustment of amount.[Paras 8,9] [599-8,C,D,E,F] CIVILAPPELLATE JURISDICTION : Civil Appeal No. 4060 of 2006 C From the final Judgment and Order dated 24.7.2003 of the High Court of Judicature at Allahabad in Sales Tax Revision No. 149of1991 KrishnanVenugopal, Aarohi Bhalla, Manoj Kumar Dwivedi, Gunnam Venkateswara Rao and Kamlendra Mishra for the D A
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