TMI Blog2005 (5) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... Water pump manufactured by it although it deposited the tax, under protest along with monthly returns of the turnover. In the aforesaid period the Fan was taxed at the rate of 10% and that of Water Pump at the rate of 5%. It may be noticed here that for the remaining period of the relevant assessment year, the assessing authority itself granted exemption from payment of sales tax on the aforesaid goods in view of the notification dated 1-10-1995. The benefit of the circular No. 2444 was not extended to the applicant for the disputed period namely 1-4-1995 to 30-9-1995 on the ground that the applicant has already deposited the tax, therefore, the claim of refund of tax thus deposited was negativated and not liable to be entertained, in absence of any such provision for the refund in the said Circular No. 2444 dated 30-3-1996. In first appeal, the Deputy Commissioner (Appeals) Trade Tax disagreed with the assessing Officer and granted refund of the amount of tax deposited by the dealer applicant for the disputed period. The order of Dy. Commissioner (Appeals) has been set aside by the Tribunal in appeal, filed by the department. The Tribunal has held that within the four corners of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quoted below: "In exercise of the powers under Clause (b) of Section 4 of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904) and in suppression of all previous notifications issued under the aforesaid clause, the Governor is pleased to exempt with effect from 1st February 1985 the sale or purchase of the goods mentioned in column 2 of the Schedule hereunder by the persons or the class of persons mentioned therein, from tax under the said Act of 1948, subject to the conditions, if any, specified in Column 3 thereof. ... 3. Institutions in U.P. certified by the All India Khadi Village Industries Commission or the U.P. Khadi Village Industries Board (a) on the sale of products of Village Industries specified below, and (b) on the purchase of any goods connected with the manufacture of products of village industries or purchases of products of village industries specified below: On condition that the dealer selling such goods to the said institution furnishes a certificate from the said institution duly counter signed by the District Village Industries Officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. TT-2-2454/XI-9 '(53)/9l dated 5-10-1995, the State Government again amended the earlier notification No. 7037 dated 31-1-1985 and granted full exemption on the sale of products of Village. Industries specified therein which also includes Black smithy, on certain conditions not relevant for the present case. 8. From the above discussion it is clear that sale of specified goods of Khadi Gram Udyog Product was exempt from payment of tax for the period prior to 1-4-1995 and subsequently up to 1-10-1995, under the notifications referred to above. However for the period 1-4-1995 to 30-9-1995 initially sales tax liability of such certificate holder was there, but in view of the Circular No. 2444 dated 30-3-1996 the State Government decided not to recover any sales tax, interest or penalty if levied on such dealer. 9. It is not in dispute that Commissioner of Trade Tax issued a Circular dated 30-3-1996. In the Circular it is mentioned that In pursuance of the Notification dated 31-1-1985, the certificate holder of Akhil Bhartiya Khadi Gram Udyog Board and U.P. Khadi Village Industries Board was allowed total exemption on the sale of specified goods for the Village Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clarifying the position that part of power driven pump which were used in the manufacture of power driven pump would also be exempted. A dispute arose with, regard to the exemption on the part of power driven pump used in the manufacture of the pump for the intervening period. The Apex Court held that in view of consistent policy of the Government of exempting part of power driven pump utilized by the factory within the factory premises, it cannot be said that while issuing Notification No. 46 of 1994 on 1st March 1994 the exemption in respect of such item which was operative was either withdrawn or revoked. The policy remained as it was and in view of the demand being made by the department, a representation was made by the industries and on being satisfied the Central Government issued clarificatory notification No. 95 of 1995 on 25-4-1994. It was held that it was not a new notification granting exemption for the first time in respect of power driven pump to be used in the factory. 12. The controversy in hand is fully covered by the judgment of Apex Court. Here also the intention of the Government was hot to levy any tax on sales made by the manufacturer who is having certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those who were in arrears of tax at the commencement of the Scheme which were to be paid during the period for which scheme remained operative. 14. The aforesaid two judgments relied upon by the learned Standing Counsel have no relevance to the controversy in hand. The object of the circular in question is to remedy the difficulty faced by such dealer during the interregnum period for which there was no exemption under the relevant notifications. The State Government realized the difficulty of such class of dealers and issued a Circular granting remission of tax, interest and penalty, if levied. 15. Learned Standing Counsel then contended that all three authorities below have found that the liability of tax on sale of self manufactured fans and water pump was there for the disputed period. Therefore, the grant of remission of tax if levied by the assessing authority will not entitle the applicant to claim refund of tax, deposited by it under protest. 16. The said argument is misconceived and cannot be accepted for the simple reason that India is a welfare State. A person who has deposited tax out of his own pocket cannot be permitted to be placed in a disadvantageous positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax v. B.N. Bhattacharjee interpreting Section 245(7) of the Income Tax Act, 1961, where in interpretation of the phrase "assessee shall not be deemed to have been withdrawn the appeal from the Appellate Tribunal.", was involved took into consideration the obvious object of Clause (7). It held that the expression "assessee" should be, construed in a wider way so as to include all parties affected by the subject matter of assessment. Two cross appeals against the first appellate order were pending before the Tribunal, one at the instance of the assessee and the another at the instance of the department. The assessee withdrew his appeal with a view to approach the Settlement Commission. The Settlement Commission did not entertain the application of the assessee and therefore the assessee moved an application for revival of his appeal before the Tribunal. The Supreme Court held that, the appeal filed by the department would also be revived although there was no such express provision in the aforesaid Section. The Supreme Court by giving "an equitable and purpose oriented construction" to the clause held that the expression " assessee" would also include all parties affected by the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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