TMI Blog2006 (11) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of tax. As the rate of tax is finally notified in exhibit P 1 at 0.5 per cent, there arises no question of any dispute on the rate of tax to attract the said statutory provision for resolving dispute. Therefore, the learned single judge went wrong and therefore, he would have been granted the relief prayed for. He also submits that he had long pending transaction of purchase of gold from the first respondent/bank who alone was on the party array when the original petition was filed. He had transaction worth Rs. 42,37,48,518 during the period from April 6, 1999 to December 10, 1999 in the assessment year 1999-2000. At that time, the rate of tax was as provided in S.R.O. No. 1728/1993 dated January 1, 1994 amended by S.R.O. No. 301/1999 dated April 1, 1999, at the rate of one per cent in respect of sale of bullion to persons other than manufacturers or exporters of jewellery. Therefore, he paid and the first respondent/bank collected tax at the rate of one per cent. Later, by exhibit P1 notification S.R.O. No. 1075/1999 dated December 27, 1999 the relevant entry in column 3, Schedule IV of S.R.O. No. 1728/1993 as amended by S.R.O. No. 301/ 1999 was further amended as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the general Notification S.R.O. No. 1728/1993 which stands amended by several other notifications including S.R.O. No. 301/1999 dated April 1, 1999 and exhibit P1 dated December 28, 1999. Therefore, this residuary clause is applicable even in respect of the tax collected from the appellant/petitioner though he was liable to pay going by exhibit P1 only at the rate of 0.5 per cent. Therefore, the reply given to the bank in exhibit R1(B) is justified and the appellant cannot get refund as claimed, the Special Government Pleader submits. In this respect, he has relied on the decision in Assistant Commissioner (Assessment) v. Associated Cement Companies Ltd. [1998] 108 STC 219; [1997] KLJ (TC) 265, APAR Ltd. v. Assistant Commissioner [2000] 8 KTR 363 (Ker) and Kokkala Arecanut Commission Agent Association v. Commissioner of Commercial Taxes [2009] 19 VST 62 (Ker); [2003] 11 KTR 316 (Ker) which are to the effect, according to him, that tax once paid cannot be refunded, when there is specific provision in the notification to that effect. It is submitted by the counsel for the bank that when the Government had informed based on a clause contained in the notification that the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded. Had this communication been given in time, when the bank received exhibit R1(B) dated March 3, 2000, the appellant could have again appraised the bank of its opportunity to get refund by filing appropriate annual return. Therefore, it is submitted that when the Government had reduced the liability of the appellant with regard to the tax payable on the transaction that he had with the first respondent/bank, the benefit arisen out of it should not have been denied. In other words, the benefit that accrued to him in exhibit P1 should not have been deprived of, it is submitted. Therefore, he is entitled for refund, the counsel submits. The learned single judge had conceived the dispute as one coming within section 59A(d). When it is agreed before us that as per exhibit P1 the tax payable by the appellant and the tax liable to be collected by the first respondent was only at 0.5 per cent, there arises no question of resolving the dispute, under the said provision, as the dispute is not with respect to the rate of tax. Therefore, the finding in that regard in the impugned judgment cannot be sustained. The entitlement of the appellant to get refund is resisted only on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.5 per cent, instead of one per cent and that was the purpose to give exhibit P1 effect from April 1, 1999, because the S.R.O. No. 301/1999 gave the benefit of reduced rate to the purchasers of bullion and species for manufacturing gold ornaments with effect from April 1, 1999. Necessarily, exhibit P1 is a special provision, bringing the purchasers like the appellant also within the purview of the tax liability of 0.5 per cent also from April 1, 1999. Necessarily, this special provision will have an overriding effect over the general provision in the residuary clause as referred to earlier and relied on by the Government Pleader. It is fundamental that the special provision prevails over the general provision. Therefore, nobody can take shelter under the said general residuary clause in S.R.O. No. 1728/1993 to resist the request for refund, when all admit that on the strength of exhibit P1, the tax liability of the appellant was only at 0.5 per cent for the transaction made mention of in exhibit P2. In this regard, we may have to refer to the contention of the Government Pleader resting on the three decisions referred to above. The decision in Assistant Commissioner (Assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 127/2000 considered in that case contained two specific clauses that is, (1) tax, if any, already collected in the higher rate shall be paid over to the Government and (2) tax, if any, already paid shall not be refunded. It was in the above circumstances, the refund was denied. These three cases are thus in relation to notifications which specifically contained a non-refund clause in respect of the tax already collected. As already noticed, exhibit P1 while giving it retrospectivity from April 1, 1999 did not have such a specific non-refund clause. Necessarily, these decisions cannot have any bearing on the case on hand. The further contention raised not only by the Government Pleader, but also by the counsel for the bank is that the appellant could not have claimed any refund at all having once paid tax as admissible as per the law in force at the time of the transaction. If at all he could seek any remedy, it is not by way of writ petition. The decision in Mahavir Machinery Corporation v. State of Uttar Pradesh [1991] 82 STC 345 (All) is much relied on. Paragraph 2 thereof reads as follows (at page 346 of STC): Having heard the learned counsel for the petitioner we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity who maintained that the tax once remitted or paid over to Government could not be refunded, in exhibit R 1(B). Therefore, the bank did not have any other liability except to communicate exhibit R 1(B) to the appellant. We are unable to accept this contention. Admittedly, the appellant had written to the first respondent/bank, immediately after the issuance of exhibit P1 notification for refund of the excess tax collected from him, going by exhibit P1 notification. The bank had also, as is revealed by exhibit R1(B) taken up this matter on January 19, 2000 with the assessing authority, the additional respondent No. 2, who maintained the view that, tax, if any, paid over to Government shall not be refunded. All these are far earlier than the closer of the assessment year concerned, viz., 1999-2000 during which the transaction had occurred and further, long before the date fixed for filing the annual return, i.e., March 15, 2000. In the final return, the bank could have returned the real liability during that year taking into account the retrospectivity of exhibit P1 and could have claimed refund from the advance tax already remitted and paid over that amount to the appellant. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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