TMI Blog2015 (5) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 04.10.1988. - 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 amount of penalty which was levied under Section 15-A(1)(QQ). It is also relevant to note that Explanation II to Section 29 provides that the refund would include any adjustment under sub-section 1 of Section 29 of the Act. In the facts of case, the order for refund of the money adjusted against penalty was directed to be returned to the assessee under the order dated 04.10.1988 which order s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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% but while passing the said order under Section 22 of the Trade Tax Act, the Assessing Authority decided to proceed against the assessee under Section 15-A (1)(QQ) of the Sales Tax Act. He imposed a penalty of ₹ 1,80679/- for the year 1982-83 and ₹ 12,565/- for the year 1983-84. This penalty was imposed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are enclosed at page 58 and 60 of the paper book. Not being satisfied with the order so passed, the assessee filed an appeal before the First Appellate Authority which was rejected vide order dated 27.02.1991. Not being satisfied the assessee filed Second Appeal No. 234 of 1991 and no. 235 of 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 in 2006 U.P.T.C., 339. In order to appreciate the controversy raised by means of the present petition, it would be worthwhile to reproduce Section 29 of the Sales Tax Act which reads as follows : ?29. Refunds : (1) The assessing authority shall, in the matter prescribed, refund t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urns 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 interpreted by the Court to mean that the refund can be refused in cases where the liability has been passed on by the assessee upon any other party. Meaning thereby that on the principle of ?undue enrichment?, there can be a denial of refund of tax or other dues by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 amount of penalty which was levied under Section 15-A(1)(QQ). It is also relevant to note that Explanation II to Section 29 provides that the refund would include any adjustment under sub-section 1 of Section 29 of the Act. What logically follows that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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