HIRJI NAGJI AND CO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner is a firm registered as a dealer under the Central Sales Tax Act and has been assigned Registration No. B. P. C. 71. For the period from 1962-63 till 1967-68 it was assessed to Central sales tax. A part of its turnover was exigible to purchase tax under the Orissa Sales Tax Act. It made an application on 16th December, 1970, for refund of tax amounting to Rs. 27,971. 59 relying upon the provisions of the Central Sales Tax (Amendment) Act, 1969, and that application came to be rejected on 25th February, 1971 (annexure 3), by the Sales Tax Officer. This writ application was filed on 29th March, 1971, to quash the said order of rejection and for a direction to the Sales Tax Officer to refund the amount. In the original application there was also a prayer for quashing the various assessments in regard to the years 1962-63 to 1967-68 (annexure 1 series ). In the counter-affidavit it was contended that until the assessments were quashed no refund was admissible and since no prayer had been made for quashing of the assessments the writ application was not maintainable. Various other contentions were also raised with a view to disputing the claim for refund. Thereupon the petitioner made an application for amendment asking for quashing of the assessments. Such an application was unnecessary in view of the fact that there was already a prayer for quashing of the assessments in the original petition. By order dated 17th April, 1972, the amendment was allowed and a further counter-affidavit was received from the opposite parties.

(2.) IT is not disputed that sale of jute and broomstick is liable to purchase tax under the Orissa Sales Tax Act. The petitioner contends that in view of the provisions contained in section 9 (3) of the Central Sales Tax Act,

(3.) EVEN if the assessments are sustained, the claim of the petitioner is open to examination, according to Mr. Mohanty. If the case of the petitioner is covered by sub-section (1) of section 10 of the amending Act, section 9 thereof would not stand as a bar and notwithstanding the fact that the assessments which were otherwise invalid have been validated, the claim for refund is admissible provided the other conditions are satisfied.