LexSTATE OF MADHYA PRADESH (NOW MAHARASHTRA) versus HAJI HASAN DADA
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STATE OF MADHYA PRADESH
(NOW MAHARASHTRA)
v.
HAJI HASAN DADA
December 2, 1965
[K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, JJ.]
C.P. and Berar Sales-tax Act (21 of 1947), s. 13-Claim for refund-
When can be ordered.
A
B
The respondent was assessed to tax by the Assistant Commissioner of
Sale»-tax under the C.P. and Berar Sales-tax Act, 1947 on the turnover
of his business and he paid the tax. After the order of assessment the Board. C
of Revenue gave a ruling that dyeing charges were not taxable under the
Act.
The respondent applied to the Assistant Commissioner, under s. 13
before its amendment in 1953 for refund, on the plea that the amount
claimed represented dyeing charges included in his turnover. The Assis-
tant Commi.,ioner rejected the application,
but the Board of Revenue
ordered the case to be returned to the Commissionet for examination of
the claim for refund on merits. At the instance of the State, the Board
referred to the High Court, the question whether there was any bar to
the examination on merits of claims for refund under s. 13 as originally
enacted. The High Court held that there was no bar.
In appeal to this Court,
HELD : The application for refund
of tax was
not
maintainable
under the section as originally framed.
The Assistant Commissioner is, within the limits of his jurisdiction
and authority, competent to decide all questions which arise before him;
his orders are liable to be set aside in appeal or modified in revision.
, But under the Act, the
Assistant
Commissioner-who exercises
the
powers of the Commissioner-has no power to review his decision, and
so long as his order is not set aside or modified,. a dealer
cannot call
upon him to ignore the previous order and grant refund contrary to the
plain direction of his order. [857 C, HJ
CommisJioner of Income-tax v. Tribune
Trust
L.R. 74 I.A. 306
applied.
C1v1L APPELLATE JURISDICTION : Civil Appeal No. 1007 of
1964.
D
E
F
Appeal by special leave from the judgment and order dated
September 13, 1961, of the Bombay High Court
(Nagpur
G
Bench) in Civil Reference No. 1 of 1961.
T. V. R. Tatachari and B. R. G. K. Achar, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Shah, J. By order dated April 17, 1952, the respondent
Haji Hasan Dada was assessed by the Assistant Commissioner of
Sales Tax, Nagpur Region, to pay tax under the Central Pro-
H
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M. P. STATE V. HASAN DADA (Shah, /.)
855
A vinces & Berar Sales Tax Act 21 of 1947 on the turnover from
his business in yarn for the period November 13, 1947 to Novem-
ber 1, 1948. The respondent paid the amount of tax assessed on
July 8, 1952. Thereafter relying upon s. 13 of the C.P. & Berar
Sales Tax Act, 1947 he applied on November 20, 1952 to the
Assistant Commissioner of Sales Tax for an order refunding
B Rs. 873/10/- on the plea that in the turnover of his business were
included dyeing charges which were not taxable under the Act,
and which since the order of assessment were held by the Board
of Revenue to be not taxable.
The Assistant Commissioner
rejected the
application, and the order was confirmed by the
Commissioner of Sales Tax in appeal.
The Board of Revenue,
C Madhya Pradesh, however, set aside the order and ordered that
the case be returned to the Commissioner "for disposal afresh in
the light of the legal principles explained in Sheikh Gauhar Sheikh
Nazir of Balaghat v. The Stale(')".
During the pendency of the proceedings before the
taxing
D authorities, s. 13 of the Act was amended with retrospective effect.
It is claimed by the State that under the amended section the right
to obtain refund in cases similar to those under examination was
taken away retrospectively.
The State of Madhya Pradesh moved the Board of Revenue
E for a reference under s. 23 of the Act to the High Court, and the
Board of Revenue referred the following three questions :
F
G
H
"l. Is ruling 57 (in Sheikh Gauhar's case-3
S.T.C. 331) good law? In other words, was the Board
right in holding that the Privy Council's decision in
Commissioner of Income-tax v. Tribune Trust ( A.I.R.
1948 P.C. 102) constituted no bar to the examination
on merits of claims for refund made under the original
section 13 of the Sales Tax Act XXI of 194 7 within
the time-limit mentioned in it?
2. Has section 24 of Act XX of 1953 been validly
enacted, in so far as it seeks to give retrospectiExcerpt shown. Read the full judgment & AI analysis in Lexace.