CROMPTON GREAVES LIMITED Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) The above appeal has been directed against the judgment and order of the learned Tribunal dated 26th July 2011 by which an application under section 8 was dismissed and thereby order passed by the revising authority was upheld. The short undisputed fact leading to filing application before learned Tribunal is as follows:-

(2.) The petitioner/assessee filed returns of sale of four quarters ending with 31st March, 1997 wherein appellant claimed deduction of Rs. 2,92,42,976/- towards issue of credit notes and submitted details thereof. Out of the said credit notes an amount of Rs. 2,74,90,912/- was claimed under the States Act and Rs. 17,52,063.79 was claimed under the Central Act. The petitioner while submitting returns could not adjust the aforesaid amount of credit notes, as such the petitioner collected sales tax on the basis of invoice from purchasers/dealers/sub-dealers of goods. Subsequently, the said credit notes were issued by the petitioner No. 1 to purchasers/dealers/sub-dealers as trade discount and/or incentive giving them credit for this tax charge on such incentive. Since actual tax payable at the stage of transfer of the goods were collected and later on the credit notes were issued and returns were filed on the basis of actual collection of tax after the said tax was deposited. However at the time of assessment the credit notes were produced seeking deduction on account of tax. The Assessing Officer by his order dated 30th of June, 1999 accepted the said claim of deduction on account of credit notes with observation that there was no irregularity involving higher collection of tax is involved. However the claim for deduction on account of return of the goods for a sum of Rs. 2,97,012.50 was disallowed along with the aforesaid claim of deduction, a sum of Rs. 9,67,873/- was also disallowed.

(3.) The petitioner/asses see being aggrieved by the aforesaid portion of disallowance of the order dated 30th of June, 1999 preferred appeal under the old Act of 1994 and under Act 1956 before the Deputy Commissioner of Commercial Taxes, Corporate Division. Both the appeals under section 9 of the Central Sales Tax Act, 1956 and section 79 of 1994 Act were disposed of by common judgment and order dated 26th June, 2002, and thereby disallowance of the credit notes amounting to Rs. 2,97,102.50 was affirmed with the findings recorded therein. The Appellate Authority however set aside some of the findings of the Assessing Officer on other points and remanded the matter to the Assessing Officer for fresh assessment in the light of the discussion as recorded in the appellate order allowing the dealer reasonable opportunity of being heard. The Assistant Commissioner of Commercial Taxes passed order of reassessment on 22nd March, 2004 and issued a notice under Form No. 30 under WBST Rules 1995 showing excess payment of tax of Rs. 15,29,138.00 under the Act 1994 and notice in form No. 4A showing excess payment of Rs. 95,048.00 under Act 1956. On 2nd March 2007 the Assistant Commissioner, Commercial Taxes, Corporate Division issued two letters calling upon the petitioner to produce necessary evidence in support of petitioner's claim for refund of Rs. 15,29,138/- and Rs. 95,048/- respectively. Thereafter the petitioner made repeated representation for refund of the excess amount of sales tax. Instead of refunding the petitioner was served with a notice in Form 55 by the Senior Joint Commissioner, Commercial Taxes, Corporate Division dated 15th September, 2009, under Rule 245, 249 and 264 of the West Bengal Sales Tax Rule 1995. The alleged deduction of a sum of Rs. 2,89,45,873.00 being credit notes issued for additional discount allowed by the Assistant Commissioner, Commercial Taxes, Corporate Division was not allowable as per section 2(31) and section 2(40) of the WBST Act 1994 resulting in excess payment. Therefore by the said notice it was proposed to levy tax on the said amount modifying impugned order of assessment as per provisions of the law. The petitioner accordingly raised objection to the said notice, objection was overruled by the Senior Joint Commissioner of Commercial Taxes and passed an order in exercise of power of suo motu revision/review and the earlier order of Assessing Officer was recalled.