RAJ MOTI DAL MILLS Vs. SALES TAX OFFICER

JUDGEMENT

(1.) This writ petition has been filed for issuing a writ or direction in the nature of certiorari quashing the notice dated March 3, 1983 (annexure 7) issued by the Sales Tax Officer, by which the petitioner has been directed to deposit a sum of Rs. 1,39,478.78 rejecting the claim of adjustment of refund, as directed by the appellate authority in respect of the assessment years 1975-76, 1977-78 and 1978-79.

(2.) Facts and circumstances giving rise to this case are that the petitioner-firm was assessed by the Sales Tax Officer and the tax was imposed. Being aggrieved, the petitioner-assessee filed Appeal Nos. 1142 of 1980 for the year 1975-76 ; 520 of 1981 for the year 1977-78 and 906 of 1981 for the year 1978-79 vide order dated May 25, 1982, all the appeals were allowed. Appeal No. 1142 of 1980 was allowed in toto while Appeal No. 520 of 1981 was partly allowed reducing the amount of tax. Appeal No. 906 of 1981 was also partly allowed reducing the amount of tax. Thus, an amount of Rs. 1,39,478.78 had to be refunded in view of the orders of the appellate authority. The petitioner adjusted the said amount towards the sales tax from April to July, 1982 and January, 1983. A notice dated September 1, 1982 was issued by the authorities to the petitioner to explain as how the assessee could adjust the said amount. Petitioner immediately filed the reply submitting that the appeals had been allowed. However, the impugned order dated March 3, 1983 was passed directing the petitioner-assessee to deposit the said amount for the reason that the respondent-authority took the view that the appeals had never been decided and the order purported to have been passed in the said three appeals of the assessee were forged and fabricated documents thus nullity. Being aggrieved and dissatisfied, the petitioner approached this Court. This Court dismissed the said writ petition observing that the petitioner raised the disputed questions of fact which could not be decided in writ jurisdiction. Petitioner was given liberty to approach the civil court. Being aggrieved and dissatisfied, the assessee approached the honourable apex Court and while deciding the Civil Appeal No. 188 of 1997, vide order dated 10th March, 1997, the honourable Supreme Court remanded the case to this Court with a direction to decide the case by investigating the factual aspects of the matter. Hence this petition.

(3.) Shri Bharat Ji Agrawal, learned Senior Advocate appearing for the petitioner, has submitted that the petitioner being aggrieved of the assessment orders for the aforesaid assessment years, had filed the appeals which were heard and disposed by a common order dated May 22, 1982 after hearing the counsel for the petitioner and representative of the department. Certified copy of the said order was dispatched by the department to the petitioner-assessee on May 29, 1982, therefore, it cannot be said by the respondents that the order purported to be passed by the appellate authority as forged and fabricated document. It has further been submitted that in view of the judgment of this Court in Sales Tax Revision No. 149 of 1991 in Hind Lamps Ltd. v. Commissioner of Sales Tax, U.P., Lucknow dated July 24, 2003, [2004] 136 STC 483 supra it is permissible for the assessee to adjust the said amount which could have been refunded to the assessee.