CLARIDGES HOTELS P LTD Vs. SALES TAX OFFICER

JUDGEMENT

(1.) THE only opposition raised by the respondent to the rule issued is that the petitioner has collected the sales tax from its customers and therefore cannot retain it. It is not disputed that the sales tax deposited, now in dispute is not the property of the respondent. It was undoubtedly the property of the petitioner. The respondents in any case have no right to retain something which is not theirs. It is admitted by the respondents in their affidavit in paragraph 35 of the counter-affidavit that as per the assessment orders the petitioner has been held entitled to refund of Rs. 80,342, Rs. 93,513 and Rs. 1,65,710 respectively for the assessment years 1974-75, 1975-76 and 1976-77.

(2.) IT is also admitted that applications in the appropriate forms had been filed in time. As noticed earlier, the only plea is that the discretion of the assessing authority has been exercised against the petitioner for the reason that the petitioner has not refunded the said sales tax amount to its customers. The contention is that the petitioner cannot in this manner enrich itself unjustifiably. Reliance is placed on the decision of the Madhya Pradesh High Court reported in Inder Singh Harbans Singh v. State of Madhya Pradesh [1982] 49 STC 347. In our opinion that decision does not cover the facts of the present case. The petitions filed before the Madhya Pradesh High Court were dismissed on various grounds. But the salient feature therein was that the order of assessments had not been annulled.

(3.) IN law respondents cannot retain something which is not theirs and which they are bound to refund under the provisions of the Act. Indeed not paying back would amount to depriving the petitioner of its property without due process of law. That would be unconstitutional. One may refer to article 265 of the Constitution in this regard. Accordingly, we hold that the petitioner is entitled to refund of Rs. 80,324 forthwith.