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TMI Blog1960 (2) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... that a sum of Rs. 4,927-2-6 in respect of the assessment year 1948-49, and a sum of Rs. 13,369-9-3 in respect of the year 1949-50, were assessed as tax on the sales tax collected. Those amounts as also the tax assessed on the actual turnover were covered by the amount paid in respect of the provisional assessment and were duly appropriated therefrom. The liability to tax on the sales tax collected by treating it as part of the turnover was disputed inter alia by the petitioners both before the Deputy Commercial Tax Officer and the Commercial Tax Officer on appeal. Neither of them accepted the contention of the petitioners. There was a further appeal to the Sales Tax Appellate Tribunal. The Tribunal held that the petitioners were not liable to pay sales tax on the sales tax collections made by them, and directed the refund of that portion of the amount representing the tax on sales tax collected which had been appropriated by the Department. An attempt on the part of the respondent to challenge the correctness of the order of the Tribunal, by way of revision to this Court, failed. While the revision petitions were pending in this Court, the Deputy Commercial Tax Officer issued refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler are hereby declared to have been validly made, passed, taken or pronounced, as the case may be; and any finding recorded by any officer, Tribunal or Court to a contrary effect and any order, judgment or decree in so far as such order, judgment or decree embodies or is based on any such finding and does not relate merely to the costs of the proceeding which resulted in the judgment, decree or order, shall be void and of no effect." (Proviso omitted as immaterial) On the basis of the provisions contained in Act XVII of 1954, the Deputy Commercial Tax Officer issued notices on 5th August, 1956, in Form B (rule 12 of the Turnover and Assessment Rules) calling upon the petitioners to remit the amounts of Rs. 4,957-2-6 and Rs. 13,369-3-3 which had been paid over to them by virtue of the refund vouchers referred to already. It is the validity of these notices that is impugned in these petitions. It cannot be disputed that, as a result of the provisions of Act XVII of 1954, the amounts collected by an assessee before the 1st of April, 1954, from his customers by way of sales tax would be deemed to form part of his turnover and be liable to sales tax, notwithstanding the decision in De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er enactment) stated that all taxes levied or collected under the original provision would be deemed to have been collected under the new provision, notwithstanding anything contained in any judgment, decree or order of any court. In that case, before the Amending Act was passed, the assessee was repaid the excess collected from him over the standard rate of three pies in a rupee. After the passing of Act XV of 1956, the Deputy Commercial Tax Officer issued a notice of demand to recover the tax refunded. Rajagopala Ayyangar, J., held that the effect of section 17 of Act XV of 1956 was only to validate the levy and collection of the tax that was already made, but that did not enable re-collection of what had been refunded under a valid order of court, particularly when such refund would not be held to be under any mistake of law. The learned Judge held that, if the tax had remained uncollected, the provisions of section 17 would enable a levy or collection at the enhanced rate, but those provisions would not enable the Government to get back what was collected at the higher rate and refunded under a valid order of a court. It might be noticed that section 17 of the Act did not nulli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 12, on its terms, will only apply to the case of an original assessment. If the tax due under the final assessment is found to be lower than the tax paid on the provisional assessment, the officer is directed to issue a notice in Form C for refunding the excess tax. If the former is less than the latter, a notice in Form B is to be issued, making a demand on the assessee for the amount of the deficit. No question will arise, if the amount paid by way of provisional assess- ment is equal to that assessed as tax. What the rule contemplates is a mere arithmetical computation after the order of assessment is made. There is no power to alter or correct the amount or to issue notices in Form B or C more than once. To illustrate the position. We can refer to a simple case, where the assessing authority has made a mistake in the calculation of the tax. Suppose the assessing authority on the basis of such a mistake finds that the assessee had paid by way of provisional assessment more than what he was assessed to and thereupon gives a refund certificate in Form C which is duly cashed. Under the provisions of the Madras General Sales Tax Act, there is no power in that authority to rect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice can be issued only when the provisional tax paid is less than the tax assessed. In the absence of specific statutory provision, it is not possible to import in the construction of that rule that what was paid by way of provisional tax was what was actually paid minus the amount refunded, so that the deficiency of the resulting amount with the actual tax now validated by Act XVII of 1954 could be said to be a deficiency coming within the meaning of rule 12. There is thus no machinery provided either in the Act or rules to enable to Govern- ment to collect under rule 12 the amount paid by way of refund. While Act XVII of 1954 validates all assessments to tax on the amounts of sales tax collected by a dealer and nullifies any order having contrary effect, it has failed to provide for a machinery to give effect to its provisions, to enable the authorities to recover any amount paid by way of refund by reason of any judgment or order which the statute has declared as void. It is unnecessary for us to express any opinion in this case whether the Government might have other methods of recover- ing that tax from the petitioners. The demand notices in Form B served on the petitioners u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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