TMI Blog2005 (4) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... e said period expired on June 27, 2003. 3.. Subsequently, the Sales Tax Officer filed Misc. Civil Applications No. 1272-74 of 2003 for extension of time for carrying out the order of this Court and the said applications were allowed on July 10, 2003, granting the refund along with interest. 4.. The Sales Tax Officer has now filed these review applications on various grounds set out in the said applications. 5.. The background of the matter is as under: 5.1. It may be noted that originally petitioner challenged the assessment for the period September 1, 1976 to August 31, 1984 on the ground that the Deputy Commissioner of Sales Tax, Baroda, passed various orders from time to time purporting to extend time for making assessment under the local Act which Act provided timelimit of three years up to March 31, 1979 and later on for two years for completing assessment. The said extension orders were passed by the second respondent, i.e., Sales Tax Officer under section 42 of the Gujarat Sales Tax Act, 1969 ("local Act") read with rule 37A of the Gujarat Sales Tax Rules, 1970. The Sales Tax Officer issued show cause notice and thereafter the final order was passed by the Deputy Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed on the strength thereof must also be set aside. The Commissioner of Sales Tax shall be entitled, if so advised, to issue to the appellant a notice to show cause why assessments for the period September 1, 1976 to August 31, 1984 should not be stayed for a stated period for the reasons and in the circumstances to be set out therein, and he may proceed thereafter in the manner laid down above. This notice he must issue, if so minded, within 16 weeks. If this is not done within 16 weeks, all amounts collected as and by way of sales tax for the period September 1, 1976 to March 31, 1984 shall forthwith be refunded to the appellant." 5.6. It may be noted that before the honourable Supreme Court when the main matter was heard, the Revenue did not raise the contention of unjust enrichment. 5.7. When the present Special Civil Application No. 3891 of 1997 which was heard by this Court, the learned advocate for the petitioner relied upon the aforesaid judgment of the Supreme Court and various judgments in this behalf. In view of the judgment of the apex Court, this Court allowed the appeal and in para 4.1C(iii), 4.1D on page 27 and 4.1D(i) the court observed as under: "(iii) As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is allowed, but from which no appeal has been preferred; (b) by a decree or order from which no appeal is allowed; or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. Explanation. The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a Superior Court in any other case, shall not be a ground for the review of such judgment." 8.. It may be noted that what is power of review has been considered by the honourable Supreme Court in the case of Lily Thomas v. Union of India reported in (2000) 6 SCC 224 particularly para 52 on page 247 and para 56 on page 251 after relying u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no stretch of imagination, can the tax paid and collected under section 140A be described as a mere ad hoc or interim payment which can be said to fail in the absence of a regular assessment, as was sought to be contended on behalf of the petitioners." 9.1 Thereafter again on page 677 the court has observed as under: " .We are, therefore, of the view that, on failure of a regular assessment being made within the time prescribed or in the event of annulment of the assessment order pursuant to which any further demand is required to be made under section 156, no consequence of refund of the entire tax collected according to the total income shown in the returns filed by the assessee can ensue and such tax which is collected on the basis of the return filed by the assessee remains a valid and legal recovery in accordance with the provisions of the said Act and there is no question of any violation of article 265 of the Constitution of India in respect of the tax so recovered on the basis of the total income shown by the assessee in his return." 9.2 It may be noted that the aforesaid Full Bench judgment of this Court has been approved by the honourable Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It is, therefore, necessary to substitute our direction to the extent that the impugned orders were quashed and the tax collected pursuant to the assessment was required to be refunded and, therefore, this Court substitutes that direction that the amount paid along with returns be refunded. 12.. It may be noted that the honourable Supreme Court has approved the ratio laid down in Saurashtra Cement and Chemical Industries Ltd. case [1992] 194 ITR 659 (Guj) [FB]. In view of the same, the Revenue contended that, in view of this legal position there is some inaccurate or slip on the face of the judgment and therefore there was a sufficient reasons for the Revenue to obtain and review of the judgment passed against them and, therefore, they have applied for the review of the judgment. The Revenue is conscious of the explanation provided under order 47 and, therefore, they are not merely relied upon the judgment of the honourable Supreme Court but they contended that there was mistake or error when this Court observed that revenue has to refund the amount which was paid with returns when there is no averments in the petition. In support of the same they relied upon the Full Bench j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable, and such intimation shall be deemed to be a notice of demand issued under section 156 and all the provisions of this Act shall apply accordingly; and (ii) if any refund is due on the basis of such return, it shall be granted to the assessee. (2) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, the assessing officer shall, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, *** serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return." 12E. Section 145 provides method of accounting. Section 153 provides time-limit for completion of assessments and reassessments. Section 154 provides rectification of mistake. Section 155 provides other amendments. 12F. As regards Gujarat Sales Tax Act is concerned, section 3 provides incidence and levy of tax, i.e., liability created under the Act. Section 4 provides liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice requiring him on a date and at a place specified therein, either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his declarations or returns, or to produce such evidence as is specified in the notice." Section 41B provides provisional assessment. Section 42 provides time-limit for completion of assessment. (1) No order of assessment for a year commencing on the 1st day of April, 1998, or part of such year or any year thereafter or part of such year shall be made under sub-section (3) or (4) of section 41 at any time after the expiry of three years from the end of the year in which the last monthly, quarterly, or, as the case may be, annual return is filed. (2) Where the Commissioner issues a notice under sub-section (6) of section 41, to any dealer for assessment of tax in respect of any period, no order of assessment shall be made for such part of the period, if any, as is prior to (a) a period of eight years ending on the last date of the year immediately preceding the year in which such notice is issued, in a case where the Commissioner has reason to believe that such dealer has failed to apply for regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, if any, under sub-section (4A), shall be paid by the dealer or the person liable therefor into a Government treasury by such date as may be specified in a notice issued by the Commissioner for this purpose, being a date not earlier than [ten days] from the date of service of the notice: Provided that the Commissioner or an appellate authority in an appeal under section 65 may, in respect of any particular dealer or person, and for reasons to be recorded in writing, extend the date of payment, or allow him to pay the tax or penalty (if any) by installments: Provided further that notwithstanding anything contained in this Act or in the Rules made thereunder but subject to such conditions as the State Government or the Commissioner may by general or special order specify, where a dealer to whom incentives by way of deferment of sales tax or purchase tax or both have been granted by virtue of an eligibility certificate granted by the Commissioner of Industries, Gujarat State or any officer authorised by him in this behalf and where a loan liability equal to the amount of any such tax payable by such dealer has been raised by the Gujarat Industrial Investment Corporation Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it always was. 15.. In our opinion, therefore, so far as the directions contained in the said judgment requiring the sales tax authority to refund the sales tax paid with the returns are concerned, they are required to be modified to the extent that, only the sales tax paid after filing of the return and pursuant to the assessment orders is required to be refunded along with interest at 12 per cent from the date of such payment till the date of refund. The original petitioners are not entitled to refund of tax which were paid with the return. We, therefore, modify the directions given in para 4.1(C) accordingly. We are further informed by both the parties that, sales tax paid subsequent to the filing of returns has already been refunded with interest except for the years 1989-90 and 1990-91. 16.. The Sales Tax Officer has further contended in this review application that the assessment proceedings for the period 1990-91 were not time barred as a bar for limitation was lifted by amendment of section 42 of the Gujarat Sales Tax Act with effect from March 31, 1994. Therefore, it is contended that quashing of the assessment order in this behalf for 1990-91 for the said period requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was nowhere contended that the bar of limitation was not applicable to the year 1990-91. On the contrary, emphasis in the course of arguments and in the affidavits-in-reply was on the issue that the extension orders extending the period of limitation were validly passed. It is obvious that, if there was no bar of limitation, as contended for by the Revenue, the extension orders were not necessary to be passed and were superfluous. The Revenue cannot be permitted to raise a totally new issue for the first time by way of review. Therefore, it cannot be contended by the Revenue that the judgment of this Court is erroneous and requires to be reviewed on the ground that there was no period of limitation for the year 1990-91. In fact, the original petitioner contended at the hearing of the special civil applications that all the assessment orders were barred by limitation as the extension orders were passed after the period of limitation had expired in respect of the assessment years. It was, therefore, contended by the original petitioner that once the period of limitation has expired, the said period could not be extended by any extension order. 19.. The judgment of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that, when the main matter was heard, in the affidavit-in-reply, the Revenue did not raise the contention of unjust enrichment. Even, at the time of hearing the main petition, the Revenue did not raise the contention of unjust enrichment. In view of the same, in the review applications we will not allow the Revenue to raise the contention of unjust enrichment in this behalf and, therefore, we have not considered the principle of unjust enrichment. 23.. In the result, the applications are partly allowed and disposed of as set out above. Rule is partly made absolute with no order as to costs. A.R. DAVE, J. I am in agreement with the final conclusion arrived at by my brother, K.M. Mehta, J., that the tax paid along with the returns of sales tax could not have been directed to be returned with interest to the petitioner-assessee in view of the law laid down by this Court in the case of Saurashtra Cement and Chemical Industries Ltd. v. Income-tax Officer [1992] 194 ITR 659 [FB], which has been now approved by the honourable Supreme Court in the case of Commissioner of Income-tax, Bhopal v. Shelly Products [2003] 261 ITR 367; AIR 2003 SC 2532. Applications partly allowed. - ..... 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