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2017 (1) TMI 1059 - ALLAHABAD HIGH COURTSale of Diesel Engine Pump Sets of less than 10 horse power - demand of tax for the period from October to December, 2008 - tax paid duly and claimed refund - circular dated 5.9.2012 - circular states that realization of tax above 4% together with interest was granted remission provided such amount has not been realized by the seller from its consumers - whether assessee has not realized the tax from its consumers before it can claim any benefit of circular? - Held that: - this is a question of fact, which ought to be gone into by the authorities based upon the evidence led by the revisionists. In the absence of any finding returned by the authorities on this count, it would be appropriate to remit the matter to the assessing authority. Whether the relief of remission of tax could be denied to the revisionist merely because the circular contains no provision of refund? - Held that: - reliance placed in the case of Anand Gramodyog Samiti Versus Commissioner of Trade Tax [2005 (5) TMI 613 - ALLAHABAD HIGH COURT], where it was held that mere absence of enabling provision would not be a ground to deny refund of tax, in case tax is not otherwise liable to be realized from the assessee. In case State's action is allowed to stand, it would mean that an honest tax payer would be discriminated since those who have not paid tax have already been granted relief of remission - the authorities were not justified in refusing to grant relief of remission merely on the ground that an enabling provision does not exist in the circular. Revision partly allowed - Matter is remitted to the Assessing Authority for a fresh consideration on the question as to whether revisionist has realized tax over and above 4% from its consumers or not - revision disposed off.
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