TMI Blog2017 (7) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... ax from the petitioner at ₹ 24003/- has been retained by the Assessing Officer without any demand or invoking any penal provision as provided under Section 22(2) of the TNGST Act. Thus, answer to the question as to whether the respondent can retain the amount of tax is in the negative. In the absence of any provision corresponding to Sections 11-B and 12-A of the Central Excise and Salt Act, 1944, in the Tamil Nadu General Sales Tax Act, it is not permissible for the authorities under the Act to impose a penalty on the sole ground that it is meant to offset a refund, the result of making which would result in unjust enrichment to the dealer. In the case on hand, the Tribunal took note of this legal position and made an observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable minimum, no tax was due and accordingly, the Assessing Officer completed the assessment vide order dated 21.09.1998. By then, the petitioner had remitted a sum of ₹ 24,003/- being the tax collected by them and since the Assessing Officer did not order for refund, the petitioner preferred an appeal against the orders of assessment to the Appellate Assistant Commissioner (CT), Pollachi, in AP.No.415/98, which was dismissed by order dated 07.09.1999. 3. Aggrieved by the same, the petitioner preferred an appeal to the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Coimbatore, in CTA.No.3/2000. The Tribunal, after hearing the petitioner as well as the Revenue, disposed of the appeal by order dated 14.02.2002 observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same to the State as he cannot be said to have collected by way of tax or purporting to be by way of tax under the Act, amounts, not payable as such. The applications were considered by the respondent and by the impugned order, they have been rejected. 5. The primary ground on which the application for refund has been rejected is on the ground that the petitioner did not file the name of the real beneficiary to whom the refund has to be granted either before the Assessing Officer or the Appellate Authority or even before the Tribunal. The petitioner did not report what steps they took to refund the tax collected from their customers whether they issued credit note to them, etc. Further it was pointed out that if any residuary amount i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nover of the petitioner fell below the taxable minimum and the rate of tax was nil and therefore, the Tribunal observed that the amount collected by way of tax from the petitioner at ₹ 24003/- has been retained by the Assessing Officer without any demand or invoking any penal provision as provided under Section 22(2) of the TNGST Act. Thus, answer to the question as to whether the respondent can retain the amount of tax is in the negative. 9. The respondent seeks to non-suit the petitioner by referring to the decision of Mafatlal (cited supra). However, the said decision would have no application to a case arising under the provisions of the TNGST Act, moreover, no action was initiated against the petitioner under Section 22(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y after the decision of the nine Judges Bench of the apex Court in the case of Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467 wherein the majority of the learned Judges, who decided that case, held that the doctrine of unjust enrichment is a just and salutary doctrine ; that no person can seek to collect the tax or duty both ways, that a person cannot collect the duty from the purchaser at one end and also collect the same from the State on the ground that it has been collected from him contrary to law. The apex Court also held that, that doctrine however, is not applicable to the State as the State represents the country and no one can speak of the people being unjustly enriched. In the case of Mafatlal the court upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty on the sole ground that it is meant to offset a refund, the result of making which would result in unjust enrichment to the dealer. In the case on hand, the Tribunal took note of this legal position and made an observation as to how the Assessing Officer was not justified in retaining the tax amount to his account. 12. In R.Abdul Quader and Co. v. Sales Tax Tax Officer, Second Circle, Hyderabad, reported in AIR 1964 SC 922, it was held that if a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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