TMI Blog2003 (12) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period fourth quarters ending March 31, 1989 was deemed to have been made under section 11E(1) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act, 1941 ) on June 30, 1993 by the respondent No. 1. Though no tax was payable on the sale of iron and steel yet it was paid by mistake of law. The petitioner, therefore, filed an application for reopening the deemed assessment under section 11E(2A) of the Act, 1941 for the refund of the excess payment. The respondent No. 2 was directed by the respondent No. 3 to make fresh assessment under section 11(1) of the Act, 1941. The respondent No. 2 after completing fresh assessment issued demand notice showing excess payment of tax of Rs. 4,69,239.90 but no refund pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2, is bound to issue the refund payment order. The notice dated December 23, 2003 issued by the respondent No. 2 refusing the claim for refund is, therefore, without jurisdiction and is liable to be quashed. 5.. It is also argued on the point of limitation that due to continuing illegal action of the respondents, the application is not hit under section 8(2) of the West Bengal Taxation Tribunal Act, 1987. The petitioner, since is not challenging the order on any ground whatsoever, the application should be deemed to have been filed within time according to section 8(2) of the Act, 1987. The learned lawyer further relying on the decision reported in AIR 1979 SC 1144 (Madras Port Trust v. Hymanshu International), [1986] 62 STC 327 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for refund. The petitioner/dealer actually is not entitled to get the refund in view of the settled principles of law. The application, therefore, is liable to be dismissed. 7.. It is further submitted that the application is barred by law of limitation and under section 8(2) of the West Bengal Taxation Tribunal Act, 1987, since it was filed long after sixty days from the date of service of demand notice. 8.. The only point for consideration, is, if the claim of the petitioner is hit by the doctrine of unjust enrichment and law of limitation. 9.. Let us therefore, first take up the issue of limitation for consideration. The honourable Supreme Court held that in such cases section 17(1)(c) of the Limitation Act for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g due from him in respect of any other period, the assessing authority shall serve upon the dealer a notice in form VII notifying him of the adjustment of the amount of such excess towards such arrears. If there are no such arrears, or if after such adjustment there is still an excess, the assessing authority shall serve upon the dealer a notice in the same form for refunding the amount paid in excess by the dealer and along with such notice he shall send to the dealer a Refund Payment Order (Cash) allowing the refund. 11.. Therefore, under this rule when any dealer has paid the tax in excess he is entitled to get refund and such refund payment order shall be sent along with the notice in form VII. 12.. The ultimate aim and object fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. The power of the court is not meant for unjustly enriching a person. The doctrine is, however, inapplicable to the State. 15.. It was further held, Article 265 of the Constitution of India, which prohibits the imposition of a tax without the 'authority of law' has to be construed in the light of the goal and ideals set out in the preamble to the Constitution and in articles 38 and 39. The concept of economic justice demands that in the case of indirect taxes, like Central excise and customs duty, the tax collected without the authority of law shall not be refunded, unless the claimant alleges and establishes that he has himself borne the burden thereof and that he has not passed on the burden to a third party (page 548). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory right arising from section 72 of the Contract Act, is neither automatic nor unconditional. The view of the apex Court is that even if, refund is permissible under a specific clear provision of law, the principles of equity applies. We, therefore, are of opinion that the rule 55(1A) is also an equitable provision and it imports the rule of equity. The doctrine of unjust enrichment is also such a rule of equitable consideration which also shall be applicable to the provision of rule 55(1A) when it is put into action. Thus, we are of opinion that in order to get refund of the excess amount of tax paid, the petitioner in the present facts and circumstances of the case, has to establish that the burden of tax did not pass to his buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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