BIPIN KUMAR NANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE sole relief claimed by the petitioner is for a direction to the opposite party 2 to adjust the amount paid by him as "sales tax" to the Assistant Soil Conservation Officers while purchasing the quantities of cashewnuts from them towards the purchase tax payable by him on such purchases and to quash the judgment of the Sales Tax Tribunal in appeal deciding against the petitioner on the issue. The facts briefly stated are that the petitioner, who is a dealer in cashewnuts amongst other things, purchased quantities of cashewnuts during the financial year, 1983-84. The Assistant Soil Conservation Officers from whom he purchased the cashewnuts realised different amounts totalling a sum of Rs. 12,250. 22 from him towards sales tax. There is no dispute, and it is a matter of fact which also appears from the appellate order of the Sales Tax Tribunal, that the Assistant Soil Conservation Officers have already deposited the amounts so collected from the petitioner in Government Treasury and that such payments have also been certified by the concerned Sales Tax Officers. Such tax was, however, not collectible by the Assistant Soil Conservation Officers since sale of cashewnuts is subject to purchase tax only. For such reason the Sales Tax Officer, Cuttack-II Circle, the opposite party 2, assessed the petitioner to purchase tax on the basis of his turnover of purchases and demanded, as per assessment order in annexure-2, a sum of Rs. 13,297 towards purchase tax. The petitioner claimed Rs. 12,250. 22 paid by him as "sales tax" to the Assistant Soil Conservation Officers to be adjusted towards the tax assessed and for a direction to pay only the balance amount. It is submitted by Mr. Roy, learned counsel for the petitioner, that in accordance with the orders passed by the first appellate authority, the petitioner has also already paid a sum of Rs. 2,000 and hence, together with the sum deposited by the Assistant Soil Conservation Officer, he has no further liability to pay.

(2.) SINCE this case involves only a question of adjustment of tax, we had issued notice to the opposite parties, who are respectively the State of Orissa, represented by the Commissioner of Sales Tax, the Sales Tax Officer, Cuttack-II Circle and the Sales Tax Tribunal, Orissa, that the case may be deposed of finally at the stage of admission. Notice is sufficient against all the opposite parties. The opposite parties 1 and 2 are represented by the Standing Counsel of the department, but the opposite party 3, the Tribunal, has not appeared. This being a case of issue of a writ of certiorari, the appearance of the opposite party 3 is merely of a formal nature. A request was made today on behalf of the opposite parties 1 and 2 for adjournment to file counter-affidavit to find out whether the amount paid by the petitioner to the Assistant Soil Conservation Officers has been paid to the Commercial Tax Department. Since it was submitted by the learned Standing Counsel that the counter-affidavit would only consist of such fact, but the very appellate order of the Tribunal itself states that the concerned Sales Tax Officer has himself certified the payments to have already been deposited in the Government Treasury, and the entire question is a pure question of law only, we did not find any justification for adjournment.

(3.) SINCE it is admitted that the amounts paid by the petitioner to the Assistant Soil Conservation Officers have already been paid to the Government Treasury in favour of the department, it will be highly unjust not to permit the petitioner to have the benefit of adjustment and again demand the tax from him even though he has paid the amount erroneously. It is contended by the learned Standing Counsel that such amount which has been paid by the petitioner is included only in the turnover of the Assistant Soil Conservation Officers payable by the Forest Department to the State and that further as against the second appellate order of the Tribunal, a reference lies for which the petitioner should not be permitted to agitate the question before this Court without availing of the remedy available under the Act. We are not impressed by either of the submissions. Once an adjustment of the amount paid by the petitioner to the Assistant Soil Conservation Officers is directed, and since the tax either it is sales tax or purchase tax is payable only to the State whose Principal Officer to collect the same is the Commissioner of Commercial Taxes whose authority is exercised by the different officers of the department, there should not be any difficulty in making the adjustment as desired by the petitioner and rather a negation of it would be negation of the rule of law. As regards the question of alternate remedy, the answer is found in the very decision of the Supreme Court quoted supra (Shiv Shanker Dal Mills v. State of Haryana AIR 1980 SC 1037, wherein the plea was termed as a negative one and to be one which is not very palatably urged by the State.