9911796707
TMI Blog1999 (2) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... that for the aforesaid assessment years the assessee had taken the matter of assessment to the Tribunal in second appeals. The second appeals filed by the assessee were allowed by the Tribunal against the assessment orders for the years under consideration and after fixing liability for tax the Tribunal had directed that the excess amount deposited by the assessee shall be refunded to him in accordance with the rules. The said order of the Tribunal had become final as the department did not feel aggrieved by the said order and it did not file any revision before the High Court. Thereafter the assessee claimed that he had deposited tax of amount of Rs. 10,79,918.90 paise for the assessment year 1979-80, Rs. 12,59,601.86 paise for the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submission is that the Tribunal's order in the appeals against the assessment orders was that the excess amount of tax deposited by the assessee shall be refunded to him in accordance with the rules. His next submission is that section 29-A(3) of the U.P. Trade Tax Act provides that the excess amount realised in contravention of the provisions of sub-section (2) of section 8-A of the Act, on a claim being made in that behalf may be refunded to the person from whom the said dealer had actually realised the said amount or part or to his legal representative and to no other person. His submission is that the claim for refund can be made only by the person from whom the dealer had actually realised the amount or by the heir and legal represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat section 29-A(3) provided that the excess amount shall be refunded to the dealer from whom such excess amount of tax or part thereof was actually realised provided a claim is made in that behalf by such person in the manner prescribed. He further submits that the refund relates to the year 1979-80. However, till 1993 there were no rules prescribing procedure for claiming of the refund. Therefore, the dealer was entitled to refund of the excess amount as he was liable to repay the amount of excess tax realised by him from the customers. He submits that the appeal was decided in the year 1990 though rules came in force in the year 1993. The period of making a claim by the person from whom the excess tax was realised had expired; he could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 29-A of the Act provides that the excess amount deposited by the dealer under sub-section (3) shall be refunded to persons from whom such dealer had actually realised the such amount or part thereof on a claim being made in that behalf by such person in the prescribed manner. The proviso to sub-section (3) of section 29-A of the Act provides that "no such claim shall be entertained after the expiry of three years from the date of the order of assessment or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, which is later". In the instant case final orders were passed by the Tribunal on July 27, 1990. The dealers/customers from whom the excess amount of tax was realised by the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit notes which is a valid method of refund and the factum of which has not been doubted by the authorities below". In these circumstances this Court has held that the manner had not been prescribed till 1993 while the proceedings relate to assessment year 1986-87 and the tax had already been refunded to the buyers in the manner aforesaid. As already stated, this Court has taken a view that in the absence of the prescribed procedure the dealer who had refunded the amounts to its customers could claim a refund. In the instant case there is no claim that the excess amount deposited by the opposite party after realising from the customer has been refunded by it to its purchasing customers. The purchasing customers had not applied to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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