YOGESH KUMAR SHANGHVI Vs. COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) CASE Nos. R.N. 19 of 1997 and 20 of 1997 are taken up together for adjudication because they involve identical issues. In the first case, the applicant -company is engaged in photo processing and for the period ending on March 31, 1992 deposited Rs. 2,04,487 as tax. But in view of the decision in the case of Studio Kamalalaya v. Commercial Tax Officer, Asansol Charge reported in [1993] 89 STC 307 (WBTT) ; (1993) 26 STA 85 the appellate authority remanded the matter to the concerned assessing authority for routine assessment in terms of the said decision. The assessing authority then assessed the tax liability for the period to be "nil" and declared the amount of Rs. 2,04,487 paid as tax to be the tax paid in excess. Though pursuant to same, a notice in form VII [prescribed under the Bengal Finance (Sales Tax) Act, 1941] was served on the applicant there was no order for refund of the money in cash or for deduction/adjustment of such excess amount against any tax, penalty or interest due in respect of other periods. Though the notice in form VII was issued showing the amount in excess, no refund payment order (cash) was issued in terms of Section 12(1) read with Rule 55(1A) of the 1941 Act. A large number of written prayers for refund failed to evoke any response. Ultimately, by a letter dated September 5, 1996 the C.T.O., Bhowanipore Charge intimated rejection of the applicant's prayer for refund.

(2.) IN case of R.N. 20 of 1997 in similar circumstances an amount of Rs. 2,14,435 was found to have been paid in excess as tax by the applicant of that case. The applicants' prayers for refund were rejected by a letter dated September 5, 1996.

(3.) IN these two cases the respondent No. 3 has filed affidavit -in -opposition for self and other respondents. Therein there is no denial of the fact that the appellate authority remanded the two impugned assessments back to the assessing authority for reassessment and that the latter authority held the amounts, as mentioned in the two applications, to be excess payments of tax. The respondents, however, justify rejection of the prayer for refund on the ground that the applicants are not entitled to refund since the said sums of deposited money were not tax at all. It is the further case of the respondents that interest under Section 10B is admissible only in case of refund arising out of an order under Section 20 or 21 of the 1941 Act and that here the amount paid in excess has arisen out of orders of reassessment under Section 11 of the 1941 Act. The respondents further dispute the refundability of the amount on the ground that these are the amounts collected by the applicants of the two cases from the customers by way of tax without authority. However, during the hearing, the issue relating to collection as tax without authority has not been pursued.