9911796707
TMI Blog2007 (3) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... cant but to the customers under section 29A(3) of the Act. The view of the assessing authority has been upheld in first appeals and by the Tribunal. Heard learned counsel for the parties. Learned counsel for the applicant submitted that the provisions of section 29A of the Act is not applicable to the Central Act and, therefore, the excess amount cannot be detained under section 29A(2) of the Act. He submitted that the provisions of the refund have not been made applicable to the Central Act, therefore, the provisions of section 29A(2) are not applicable. In support of his contention, he relied upon the decisions of the apex court in the case of Khemka & Co. (Agencies) Pvt Ltd. v. State of Maharashtra reported in [1975] 35 STC 571, India Carbon Ltd. v. State of Assam reported in [1997] 106 STC 460; [1998] UPTC 1 and the decision of the Bombay High Court in the case of Commissioner of Sales Tax v. Ramkrishna Kulvantrai reported in [1976] 37 STC 564. He further submitted that no tax can be levied without the authority of law as contemplated by article 265 of the Constitution of India. Learned Standing Counsel submitted that the provisions of the refund is a procedural provision an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, penalties, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf, make necessary provision for all or any of the matters specified in this sub-section. 9A. Collection of tax to be only by registered dealer.--No person who is not a registered dealer shall collect in respect of any sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply in relation to the assessment, reassessment, collection and the enforcement of payment of any tax required to be collected under this Act in such State or in relation to any process connected with such assessment, reassessment, collection or enforcement of payment as if the tax under this Act were a tax under such sales tax law." After the Finance Act, 2000. "9. Levy and collection of tax and penalties:-- (2). Subject to the other provisions of this Act and the Rules made thereunder, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State, shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any interest or penalty payable by a dealer under this Act as if the tax, or interest or penalty payable by such a dealer under this Act is a tax or interest or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Amendment), Act, 1969, the Tribunal is correct in law in coming to the conclusion that the provisions of sections 46 and 37 of the Bombay Sales Tax Act, 1959 could not be invoked for the purposes of the Central Sales Tax Act, 1956, but the said question has not been pressed and adjudicated upon. The decision of the apex court in the case of India Carbon Ltd. v. State of Assam [1997] 106 STC 460; [1998] UPTC 1 is also not applicable to the present case. In the said case, the apex court held that there was no substantive provision in the Central Act requiring the payment of interest on the Central sales tax. It has been held that the words "charging or payment of interest" in section 9(2) of the Central Act occur in what may be called the latter part thereof authorises the sales tax authorities of a State to assess, reassess, collect and enforce payment of the Central sales tax payable by a dealer if it was payable under the State Act. By the second part of section 9(2) authorities are empowered to exercise the powers they have under the State Act including provisions relating to charging and payment of interest, which relates to the application for procedural purposes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Likewise in the case of India Carbon Ltd. v. State of Assam [1997] 106 STC 460 (SC); [1998] UPTC 1, it has been held that in the absence of any substantive provision relating to the levy of interest under the Central Sales Tax Act the substantive provision relating to the interest of the State Act cannot be applied. Similar is not the position in the case of refund. The provision relating to the refund is a procedural provision in which there is no levy or charge and thus, it does not require any substantive provision. The procedural provision of the refund has been specifically made applicable to the Central Act under section 9(2) of the Central Act. Section 29A(2) and 29A(3) of the U.P. Trade Tax Act are the provisions relating to the refund, therefore, in my opinion they are applicable to the Central Act. The validity of section 29A of the U.P. Trade Tax Act has already been upheld by the apex court in the case of Kasturi Lal Harlal v. State of U.P. reported in [1987] 64 STC 1; [1987] UPTC 135 and Kheria Brothers, Lalitpur v. Assistant Commissioner (Judicial), Sales Tax, Jhansi reported in [1995] UPTC 593. For the reasons stated above, both the revisions have no merit and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
