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TMI Blog2015 (5) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... present writ petition. Facts in short leading of the present petition are as follows : The assessee, who is engaged in confectionery business and was a registered dealer, was assessed for the year 1982-83 and 1983-84 under the U.P. Sales Tax Act. Under the assessment order it was held that the assessee was liable to pay tax @ 8% on confectionery items. Accordingly, the tax was deposited by the assessee. However the High Court in the case of Commissioner, Sales Tax vs. M/s. Babani & Co. reported in 1984 UPTC, 81 held that on confectionery items the rate of tax applicable would be 4% only. The assessee made an application under Section 22 of the Sales Tax Act which was allowed and it was held that the assessee was liable to pay tax @ 4% bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of 1989. The appeal was dismissed under an order dated 06.04.1989. The department thereafter pursued the matter further by filing a Revision before the High Court being Trade Tax Revision No. 816 of 1999. The revision was also dismissed under an order dated 20.12.2005. After passing of the order by the Appellate Authority dated 04.10.1985, the assessee made an application for refund of amount in terms of the appellate order. This application of the assessee was rejected by the Assessing Authority vide order dated 16.05.1989 and it was held that in view of Section 29(3) of the Trade Tax Act, the money need not be returned to the petitioner-assessee. For the two years in question i.e. 1982-83 and 1983-84. Identical orders were made which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till the date the order of the Tribunal was received by the department i.e. 12.12.2002. Counsel for the department however disputes the correctness of claim so made. It is the case of the department that it is only under the order of the Tribunal dated 07.09.2002 received by the Tribunal on 06.12.2002 that a positive direction for refund of excess deposit by the petitioner has been made, therefore, no money can be claimed prior to the said period. Counsel for the department has placed reliance upon the Division Bench judgment of this Court in the case of M/s. Indodan Milk Products Ltd. vs. State of U.P. and Another reported in 1983 U.P.T.C., 583 and in the case of M/s. Man Power Services And Security vs. State of U.P. and Others reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to sub-section (1). (3) Notwithstanding any judgment, decree or order of any court or authority no refund shall be allowed of any tax or fee due under this Act on the turnover of sales or purchases or both, as the case may be, admitted by the dealer in the returns filed by him or at any stage in any proceedings under this Act. Explanation 1 : The date of refund shall be deemed to be the date on which intimation regarding preparation of the refund voucher is sent to the dealer in the manner prescribed. Explanation II : The expression 'refund' includes any adjustment under the proviso to sub-section (1)." At the very outset we may record that Section 29(3) as well as Section 29(4) of the Sales Tax Act have been interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that the money cannot be returned in view of Section 29 (3) of the Sales Tax Act. The issue of refusal to refund the money due under Section 29(3), in our opinion, would only arise when something becomes payable to the assessee under orders of the competent authority which in the facts of the case would be the order of the First Appellate Authority dated 04.10.1988. We may further record that under Section 29(1) proviso of the Sales Tax Act, a power has been conferred upon the taxing authority to adjust any amount which is refundable against any other outstanding of the assessee. It is with reference to this power that the amount of excess tax which was paid by the assessee had been adjusted by the department against the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders also lead to the conclusion that the stand taken by the department in exercise of powers under Section 29(3) for refusing to return the money under orders of the Appellate Authority dated 04.10.1988 was illegal. For the aforesaid reasons we find it a fit case to issue a writ of mandamus directing the Assessing Authority to re-calculate and pay the interest for the period commencing from the date the Assessing Authority had received the order of the First Appellate Authority dated 04.10.1988 till 27.12.2002 at the rates as were applicable from time to time to the assessee. The said exercise may be completed preferably within eight weeks from the date a certified copy of this order is filed before the Assessing Authority. Writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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