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TMI Blog2002 (9) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... ment the assessing officer assessed tax at the actual rate but demanded collected tax which is in excess of the tax assessed and due from the revision petitioner. The revision petitioner filed an appeal against the same stating that the revision petitioner ought to have been granted refund of the excess tax paid though collected and remitted by it to the Government. This was rejected by the appellate authority and the Tribunal also confirmed the action by the assessing officer by relying on section 46A of the Act, which provides for forfeiture of excess collection. 2.. According to the learned counsel appearing for the revision petitioner, this is a case of excess collection of tax and remittance of the same by the assessee to the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in sustaining the demand of excess tax collected and paid by invoking section 46A of the Act. Section 46A which provides for forfeiture of excess collection of tax, reads as follows: "(1). If any person collects any sum by way of tax or purporting to be by way of tax in contravention of sub-section (2) or sub-section (3) of section 22, he shall be liable to pay penalty not exceeding five thousand rupees and any sum collected by the person by way of tax or purporting to be by way of tax in contravention of sub-section (2) or sub-section (3) of section 22 shall be liable to be forfeited to the Government by an order issued by the assessing authority after giving such person an opportunity to show cause why penalty or forfeiture shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e "returned" to the very same person from whom it was collected. Return of same amount is possible only when it is available with the petitioner. Therefore, proviso to section 46A(1) will no longer be available after the dealer remit the excess collection to the department along with monthly returns. In other words, it is not every refund made later that saves forfeiture but only return of money in any mode such as cheque, cash or otherwise before remittance of the same to Government. We feel the purpose of proviso will not be served by issuing credit notes later. Once the excess collection is remitted by the petitioner to the Government, there is no scope for application of proviso to sub-section (1) of section 46A. As per subsection (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is whether an order could be sustained by the Tribunal under section 46A when no order was issued by the officer after observing the procedure contemplated under section 46A. On the facts, we find that the revision petitioner has filed return admitting the turnover and the tax collection at higher rate and remitted the same along with monthly returns. The Officer though assessed the turnover at lower rate, demanded the tax paid by the petitioner as "tax due" because there was no claim for refund at the time of assessment. In such a case, there was no necessity for the assessing officer for issuing a notice under section 46A to forfeit the excess collection because petitioner had voluntarily paid the amount and did not claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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