TMI Blog2017 (1) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... ing returned by the authorities on this count, it would be appropriate to remit the matter to the assessing authority. Whether the relief of remission of tax could be denied to the revisionist merely because the circular contains no provision of refund? - Held that: - reliance placed in the case of Anand Gramodyog Samiti Versus Commissioner of Trade Tax [2005 (5) TMI 613 - ALLAHABAD HIGH COURT], where it was held that mere absence of enabling provision would not be a ground to deny refund of tax, in case tax is not otherwise liable to be realized from the assessee. In case State's action is allowed to stand, it would mean that an honest tax payer would be discriminated since those who have not paid tax have already been granted relief of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of tax already realized. This finding has been affirmed in first appeal as well as by the tribunal. 3. Learned counsel for the revisionist contends that revisionist is a sincere tax payer and has complied with the requirement of law, on account of which it is being discriminated, inasmuch as such assessees who have not deposited similar tax are entitled to benefit of remission, but such relief has been denied to the revisionist. Learned counsel has invited attention of the Court to a judgment rendered in Anand Gramodyog Samiti vs. Commissioner Trade Tax, 2005 UPTC 741. Para 16 and 18 of the judgment reads as under:- 16. The said argument is misconceived and cannot be accepted for the simple reason that India is a welfare State. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. It has observed that the law, as administered by Courts'/transforms into justice. It has quoted the definition of justice mentioned in Justin man's Copus Jurist Civil is (adopted from the Roman Jurist Ulpain) states justice in constant and perpetual will to render to every one that to which he is entitled . Similarly Ciero described justice as the deposition of the human mind to render everyone] his due . The law does not remain static. It does not operate In ah vacuum. As social norms and values change laws too have to be interpreted and recast. Law is really a dynamic instrument fashioned by society for the purposes of achieving hormonies adjustment, human relations by elimination of social tensions and conflicts. Lord Denin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 4.5.1999, or for that mater the Notification dated 5.7.1999, which states that the amount shall not be refunded in any case on the basis that dealer had filed the tax at a higher rate, results in invidious discrimination towards those who have paid the tax at a higher rate, like the appellants, when compared with that category of the persons who were defaulters and have now been allowed to pay the tax at the rate of 1% for the relevant period. The consequence is that it carves out two categories of tax payers who are made to pay the tax at different rates, even though they are identically situated. There is no basis for creating these two classes and there is no rationale behind it which would have any causal connection with the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding Counsel appearing for the State submits that revisionist's case does not fall within the terms of circular, inasmuch as the revisionist has already realized the tax from its consumers, and therefore, the benefit of circular would not be available to it. 7. I have heard learned counsel for the parties and have perused the materials brought on record. 8. In order to resolve the controversy raised in the present litigation, two distinct aspects needs to be noticed and dealt with. The first aspect relates to determination of factual issue as to whether assessee has not realized the tax from its consumers before it can claim any benefit of circular. On this aspect, this Court finds that the revisionist from the very initial stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enabling provision would not be a ground to deny refund of tax, in case tax is not otherwise liable to be realized from the assessee. In case State's action is allowed to stand, it would mean that an honest tax payer would be discriminated since those who have not paid tax have already been granted relief of remission. This issue has also been dealt with by the Apex Court in Vikram Cement (supra) and it has specifically been held that such action on part of the State is otherwise violative of Article 14 of the Constitution of India inasmuch as the tax in the constitutional scheme can be levied only in accordance with law. On the legal aspect, therefore, I am of the opinion that the authorities were not justified in refusing to grant rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
