NAKODA ENTERPRISES Vs. ACCT, SPECIAL CIRCLE

JUDGEMENT

(1.) - These revision petitions have been filed by the petitioner-assessee against the order dated 10.01.2011 passed by learned Tax Board, Ajmer allowing Revenue's appeal against the order of Deputy Commissioner (Appeals) dated 02.09.2008 for AY 2000-2001 and 2001-02 and holding that the assessee was not entitled to refund of exemption fees paid by him under the Notification No. F.4(1)/FD/Tax/Div./2000-290 S.O. No. 378 dated 30.03.2000 pursuant to rectification application filed him under Sec. 33 of the Rajasthan VAT Act, 2003 (for short, hereinafter referred to as 'Act')

(2.) The case set up by the assessee In the present is that for the aforesaid two assessment years, even though he had applied for payment of exemption fees under the aforesaid Notification SO No. 378 dated 30.03.2000 and had paid such exemption fees but since his entire turnover of sale of stainless steel flats, ingots and billets was exempted under the Notification SO No. 125 dated 09.07.1998 which was later on substituted by Notification SO No. 366 dated 30.03.2000 (Annex. 1 of Revision Petition), therefore, by virtue of Sec. 13A (2) (1) of the Act, the turnover of exempted goods under the Notification SO No. 125 dated 09.07.1998 or SO No. 366 dated 30.03.2000 was not eligible to the turnover tax at all under Sec. 13A of the Act; and therefore, the exemption fees paid under SO No. 378 dated 30.03.2000 deserved to be refunded back to the petitioner-assessee. The said rectification application seeking refund of exemption fees appears to have been filed by the assessee in pursuance of a decision of this Court in the case of ACTO Vs. Suncity Trade Agency, reported in (2005) 13 Tax Up-date, 250 , which dealt with Notification S.O. No. 125 dated 09.07.1998 and it was held therein that the exemption under the said Notification SO No. 125 dated 09.07.1998 made such goods 'exempted goods' and turnover thereof, could not be subjected to turnover tax under Sec. 13A (1) of the Act and deduction thereof was liable to be given while computing turnover as per Sec. 13A (2) (i) of the Act.

(3.) The Assessing Authority, however, rejected the said rectification applications of the assessee vide order Annex-3 dated 26.09.2008, however, the first appellate authority, namely, Deputy Commissioner (Appeals), Jodhpur allowed the appeal of the assessee vide his order Annex-4 dated 02.09,2008 and directed refund of the exemption fees to the assessee. Being aggrieved by the said order of the Deputy Commissioner (Appeals), the Revenue filed a second appeal before the learned Tax Board, which was allowed by the learned Tax Board by its order dated 10.01.2011 (Annex-5) Learned Tax Board relying upon the decision of Honourable Supreme Court in the case of M/s. Mycon Construction Ltd. Vs. State of Karnatana, reported in (2003) 9 SCC 583 : (2002) 127 STC 105 (SC) and in the case of M/s. Mafatlal Industry's case, 111 STC 467 held that the assessee was not entitled to the said refund of exemption fees once having opted to pay the same and having been discharged from his obligation to get regular assessments done in terms of said Notification SO No. 378 dated 30.03.2000 and it would result in unjust enrichment of the assessee.