TMI Blog2001 (9) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions for settlement under the Act, 1999 are that the arrear tax may be settled on payment of 33 per cent of the tax in dispute and/or interest in dispute or 5 per cent tax in dispute whichever is lower. The petitioner, therefore, submitted an application on August 4, 1999 praying for settlement of the dispute raised in the appeal regarding assessed tax of Rs. 10,436.60 and interest levied thereon accepting 33 per cent of the tax due and interest as payable and claimed refund of the balance amount. The said application filed on August 4, 1999 was kept pending till it was finally disposed of on January 20, 2000. 3.. During pendency of the said application, the Government of West Bengal in the meantime promulgated an Ordinance, West Bengal Sales Tax (Settlement of Dispute) (Amendment) Ordinance, 1999 (hereinafter referred to as "the Ordinance, 1999") which was given effect on and from 10th November, 1999. Certain provisions of the Act, 1999 were amended with retrospective effect, i.e., from 1st day of July, 1999. The result of such retrospective amendment is that the amount paid in excess than the amount settled, shall virtually stand forfeited inasmuch as the higher amount sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed authority accepting 33 per cent of the arrear tax and further 5 per cent of tax or interest whichever is less where interest is disputed. The petitioner, therefore, is entitled to get refund of the balance amount of tax and interest which he paid more than 33 per cent plus 5 per cent, i.e., 38 per cent arrear tax with interest. But he was not allowed to get refund of the balance amount since some of the provisions of the Act, 1999 in the meantime were amended by promulgation of an Ordinance giving retrospective effect from July 1, 1999. According to the learned lawyer, such amendment by forfeiting the right of the petitioner to get refund of the excess amount of paid tax and interest is unconstitutional and ultra vires for the reason that the assessee who did not make deposit of any amount of arrear tax would be getting relief by paying only 38 per cent of tax with interest to settle the dispute. Whereas, others, like petitioner, would be deprived from such benefit only because, to show bona fides full amount of tax in dispute was paid before preferring appeal. The Ordinance, 1999 thus, has taken away the right of refund of excess payment made by a taxpayer by giving retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or revisional authority. Such application has to be filed according to sub-section(1) of section 5 on or before September 30, 1999 or by such later date as the State Government may prescribe by issuing notification. The petitioner, in this case, admittedly, filed an application for settlement on August 4, 1999, i.e., before September 30, 1999 the date fixed under sub-section (1) of section 5 and his appeal against the order of assessment was also pending before the appellate authority since May 5, 1997. The petitioner, therefore, fulfilled the necessary conditions for settlement of the dispute as provided under sections 4 and 5 of the Act, 1999. His eligibility for seeking relief under this Act, 1999 therefore, cannot be questioned. 11.. On receiving such application it is the duty of the designated authority under sub-section (1) of section 6 to verify the correctness of the particulars furnished by the petitioner ordinarily within sixty days and determine the amount payable by the petitioner for the purpose of settlement of arrear tax, penalty or interest in dispute at the rate as specified in section 7 of the Act, 1999. Since the correctness of the particulars furnished by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id in respect of such arrear tax in dispute, whichever is higher; or (b) where the dispute relates to any arrear interest in dispute and- (i) there is also some arrear tax in dispute for the period to which such interest relates, at the rate of five per centum of the arrear tax in dispute for such period, or the amount of the arrear interest in dispute, whichever is less; (ii) there is no arrear tax in dispute for the period to which such interest relates, at the rate of five per centum of the arrear interest in dispute. " Thus, by such amendment with retrospective effect, the higher amount of tax if already deposited, shall be accepted for settling the dispute instead of 33 per cent of arrear tax. 13.. The retrospective operation of the amended section 7 of the Act, 1999 therefore is under attack on the ground of its constitutional validity. The Constitution as such does not contain any prohibition against retrospective legislation. The general principle underlying the legislative power is that once the legislative power is conceded, the Legislatures may exercise the power prospectively or retrospectively. But, the general rules as stated by Halsbury is "all statutes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India provided that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. It may be observed that differential treatment per se is not violative of article 14 if there is a reasonable basis for differentiation." 16.. In the instant case, we find no reasonable basis in making classification in the same class of tax-payers. A group, though are paying full amount of arrear tax and another group pay nothing before making application under section 5 of the Act, 1999 yet benefit goes to the latter group depriving former. Thus, there is no equality and uniformity within same class by promulgation of Ordinance. The (Amendment) Ordinance, 1999, thus, has caused discrimination with a deliberate intention for causing discrimination. The retrospective effect given by the (Amendment) Ordinance, therefore, is liable to be struck down. 17.. The doctrine of promissory estoppel will be applicable where the Government makes a promise knowing or intending that it would be acted on by the promise and the promisee alters his position acting in reliance on it, the Government would be held bound by the promise. In this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
