TMI Blog1961 (3) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... essees would be exposed to any enforceable claims at the instance of the purchasers to refund the tax collected by them if they have deposited it with the State in discharge of the statutory obligation incurred by them. - C.A. Nos. 273, 274, 275, 276, 277 of 1960, - - - Dated:- 24-3-1961 - DAS S.K. AND KAPUR J.L. AND HIDAYATULLAH M. AND SHAH J.C. AND VENKATARAMA AIYAR T.L. JJ. H.N. Sanyal, Additional Solicitor-General of India (B.P. Maheshwari, Advocate, with him), for the appellants (in C. As. Nos. 273 274 of 1960) and respondents (in C. As. Nos. 275 to 277 of 1960). C.K. Daphtary, Solicitor-General of India (B.R.L. Iyengar and T.M. Sen, Advocates, with him), for the respondents (in C. As. Nos. 273 274 of 1960) and appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Sales Tax Officer and the order was confirmed by the Board of Revenue. In the view of the taxing authorities, the orders of assessment in respect of the five periods had become final on the diverse dates on which they were made and were not liable to be reopened merely because the law applicable to the transactions was not correctly appreciated by the taxing authorities. In petitions moved by the assessees for writs of certiorari and mandamus against the orders of the Board of Revenue, the High Court of Orissa held that the only restriction upon the right of a dealer to apply for refund, which "is found within the four corners of section 14 of the Act" being the law of limitation prescribed by the proviso to that section, transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By section 14-A which was incorporated by the Orissa Sales Tax (Amendment) Act, 28 of 1958, it was provided: "Notwithstanding anything contained in this Act where any amount is either deposited by any person under sub-section (3) of section 9B or paid as tax by a dealer and where such amount or any part thereof is not payable by such person or dealer, a refund of such amount or any part thereof can be claimed only by the person from whom such person or dealer has actually realised such amounts whether by way of sales tax or otherwise and the period of limitation provided in the proviso to section 14 shall apply to the aforesaid claims." In terms, the section provides that refund of tax paid which the dealer was not liable to pay can onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... improperly or illegally collected, and the competence of the Legislature in this behalf is not canvassed by counsel for the assessees. If competence to legislate for granting refund of sales tax improperly collected be granted is there any reason to exclude the power to declare that refund shall be claimable only by the person from whom the dealer has actually realised the amounts by way of sales tax or otherwise. We see none. The question is one of legislative competence and there is no restriction either express or implied imposed upon the power of the Legislature in that behalf. Article 19(1)(f) of the Constitution prescribes the right to freedom of citizens to acquire, hold and dispose of property; but the right is by clause (5) sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State and by paying that tax under the assessment, the assessees must be deemed to have complied with this requirement. But the amount of tax remained under section 9B of the Act with the Government of Orissa as a deposit. If with a view to prevent the assessees who had no beneficial interest in those amounts from making a profit out of the tax collected, the Legislature enacted that the amount so deposited shall be claimable only by the persons who had paid the amounts to the dealer and not by the dealer, it must be held that the restriction on the right of the assessees to obtain refund was lawfully circumscribed in the interest of the general public. Counsel for the assessees contended that they stood in danger of being compelled a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
