TMI Blog1993 (4) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ication dated December 22, 1972, referred to above with the observation that the observation of lower authorities with regard to use was not correct. While finalising the assessment under section 10 of the Rajasthan Sales Tax Act for the year 1972-73 on August 31, 1981 the assessing authority came to the conclusion that the company has not produced the declaration form as they were not collected from the Railway Board till then and that the assessee-company collected taxes at 7 per cent on the sales of wagons from the Railway Board. Against this order an appeal was filed to the Deputy Commissioner (Appeals), Jaipur, where the declaration forms subsequently obtained were submitted and the matter was sent back to the assessing authority for examining and verifying the claim of the assessee on concessional rates of tax as per the order dated October 29, 1982. The matter was considered by the assessing authority again on August 8, 1984 and the declaration forms were found in order and it was also found that a sum of Rs. 6,44,230 is refundable which could be refunded in accordance with the provisions of section 23-B of the Act. The petitioner thereafter moved an application under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , then such Government department shall not be entitled to claim benefit under this notification and shall also not be entitled to make a claim for refund in case a higher rate of tax was charged from him by the seller." The present writ petition has been filed against order dated January 7, 1989, by which, the claim of the petitioner's refund was rejected on the ground that the use of the coaches was for transportation which is a commercial and business activity and not for official use. Directions were also given to issue notice under section 16(1)(k) for levy of penalty for issue of wrong declaration to the Railway Board. The submissions of Mr. Singhi are as under: (a) That the notification dated January 7, 1989, which has inserted two provisos for the period December 22, 1972 to June 17, 1975 is ultra vires the power conferred under section 4(2) of the Rajasthan Sales Tax Act, (b) that the assessing authority while finalising the assessment of the seller if has come to the conclusion that the tax is payable at a concessional rate on account of furnishing the declaration form and refund is also due on account thereof, then when an application for refund is made, the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. This is not contemplated by the power conferred under section 4(2) of the Act. The State Government could grant the exemption retrospectively but the conditions to grant such exemption have to be specified in that very notification. If the notification granting the exemption is issued prospectively then subsequently putting the conditions for the grant of such exemption retrospectively will be outside the purview of power under section 4(2) of the Rajasthan Sales Tax Act. Under section 4(2) of the Act, therefore, the State Government can issue the notification granting the exemption retrospectively with any condition it likes but the said section does not contemplate withdrawal of the exemption retrospectively by putting any condition. The notification dated January 7, 1989, therefore, is violative of power conferred under section 4(2) of the Rajasthan Sales Tax Act. The second objection of the learned counsel for the petitioner with regard to the scope of provisions of section 23-B is to be examined in the facts of this case. The provisions of sections 23-B are as under: "Notwithstanding anything contained in this Act or in any other law for the time being in force, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of tax or otherwise. An application has to be submitted within the limitation as prescribed under section 23(1). If the incidence of tax has been passed by the first purchaser to the next dealer or person or he has utilised the goods in the manufacture of other goods for sale then the refund could be claimed by the person or dealer who has actually suffered the incidence of tax. Thus the provisions of section 23-B are applicable (1) where the amount has been deposited by any person or paid as tax by dealer; (2) there is subsequent determination of liability and it is found that such person or dealer is not liable to pay the same; (3) the refund of such amount could be claimed by the person from whom such person or dealer has actually realised such amount by way of tax or otherwise; (4) the period of limitation for making the application as provided in the proviso to sub-section (1) of section 23 is applicable; (5) if the incidence has been passed on by such dealer or person to next person or dealer then the person who has actually suffered the incidence of tax would be entitled for the refund. From the above it would be evident that the scope of section 23-B does not permit red ..... X X X X Extracts X X X X X X X X Extracts X X X X
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