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TMI Blog2015 (4) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2020/2008 for the assessment years 1989-90 and 1991-92 respectively by which the Tax Board dismissed the appeals filed by the petitioners seeking refund of amount deposited as pre-requisite condition for enabling the petitioners to file appeal before the appellate authority,the Deputy Commissioner (Appeals) ( in short "DC(A)". 2. Interesting issue emerges in the instant case as to whether the amount having been deposited by the assessee as pre-condition of filing appeals before the appellate authority under Section 84(3) of the Rajasthan Sales Tax Act, 1994 can be refunded or not. 3. The brief facts stated in STR No.234/2009 which relates to the assessment year 1991-92 are that the assessment order came to be passed on 22.09.2006 by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2003 which was challenged before the Rajasthan Tax Board. The Tax Board in the light of the said notification dated 11.04.2007 allowed the appeals of the assessee and quashed the order passed by the Additional Commissioner, the said order has become final and has attained finality as the Revenue did not challenge the same before this court. 6. Mr. Anuroop Singhi, learned counsel for the assessee contends that the assessee was not at all liable to make any deposit or payment in the light of the said notification which came to be introduced with retrospective effect. Whatever amount was deposited was not legally payable but had to be deposited or though was not payable thus is illegally retained and is thus refundable. He contends that den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. 8. I have considered the submissions advanced by the learned counsel for the parties and have perused the impugned order of Tax Board dated 26.06.2007 as also order of lower authorities by which the refund has been denied to the assessee. 9. AT the outset, it would be proper to quote the relevant notification passed by the State Government dated 11.04.2007: "In exercise of the powers conferred by sub-section (3) of Section 8 of the Rajasthan Vaule Added Tax Act, 2003 (Rajasthan Act no.4 of 2003), and all other powers enabling it in this behalf, the State Government being of the opinion that it is expedient in the public interest so to do, hereby makes the following amendments in this Department's Notification No.f.4(35)F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer was not legally justified to pass order and to create any tax demand and by virtue of the aforesaid notification the tax paid/collected/deposited was legally not payable. Once amendment conferring benefits were granted retrospectively then in my view the assessee was not liable to pay any amount. What is "payable" came to be considered by the Hon'ble Apex Court in the case of New Delhi Municipal Committee vs Kalu Ram and another (supra) and it is appropriate to quote relevant portion of the said judgment which reads ad infra:- "The word 'payable' is somewhat indefinite in import and its meaning must he gathered from the context in which it occurs. 'Payable' generally means that which should be paid. If the person in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. The Hon'ble Apex Court in the case of State Of Rajasthan and Others vs Ghasilal, 1965 AIR 1454 though on different proposition, considering the case under the Rajasthan Sales Tax Act and the Rajasthan Sales Tax Rules which were published in the Rajasthan Gazette and came into force with effect from April 1, 1995. A challenge was made in the High Court about making of assessments on the turnover of the respondent for the year 1955-56 on the ground that the said Rules were invalid. Thereafter an Ordinance (No. 5 of 1959) was promulgated on November 6, 1959, validating the Rules. The assessee withdrew the Writ Petition thereafter the Assessing Officer (Revenue) directed the assessee to deposit the tax. Accordingly the assessee deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 4(e)(i) with retrospective effect from 23.5.1987, therefore, in my view, it would relate back to 23.5.1987 when the amendment was made retrospectively and on that particular date in view of the amendment, no tax was payable and though the assessment has been made it was not recoverable. 13. After considering the said amendment and on reading of clause (f) quoted hereinabove, though it states that any amount deposited will not be refundable but in my view, when no amount was legally payable on the basis of retrospective amendment than no amount was "payable" and if amount paid than in terms of the aforesaid notification the amount cannot be retained and thus has to be refunded. In my view when condition (i) of sub clause (e) in clause 4 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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