TMI Blog1987 (10) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ed tea carried by road or inland waterways. The petitioner-company submitted voluntary return for the period ending on December 31, 1959, but the return was not accompanied by any receipt showing the payment of the taxes in accordance with the return and it was filed beyond 30 days prescribed under section 7(3) of that Act. The Superintendent of Taxes, Jorhat, made an assessment purportedly under section 9(3) of that Act determining Rs. 6,439.86 as tax payable and, accordingly, the impugned notice dated April 27, 1960, was sent to the petitioner-company demanding payment on or before May 30, 1960, and the company deposited Rs. 3,439.86. Another letter dated August 11, 1960, from the Superintendent of Taxes demanded the balance by August 18, 1960. Meanwhile, the validity of the Act of 1954 was challenged in Civil Rule Nos. 8, 9, 26 and 32 of 1955 and in H. P. Baruah v. State of Assam. AIR 1955 Assam 249, the Special Bench held the Act to be valid. However, in Atiabari Tea Co. Ltd and Khayerbari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232, decided on September 26, 1960, it was held that the Act of 1954 was passed by the Assam Legislature under entry 56 in List 11 to collect ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authority mentioned in the notice. Under subsection (3) thereof, the returns during the first year of operation of this Act shall be forwarded for such period and within such time as may be notified by the Commissioner and thereafter quarterly and within thirty days of completion of the quarter in respect of which the returns are to be filed. Under sub-section (1) of section 20 of the Act, the tax payable under the Act shall be paid in the manner thereinafter provided. Under subsection (2) thereof, before any producer or dealer furnishes the return required by sub-section (1) of section 7, he shall, in the prescribed manner, pay into the Government treasury the full amount of tax due from him under this Act on the basis of such returns and shall furnish along with the returns the receipt of treasury in token of payment of such tax. Admittedly, for the assessment period ending December 31, 1959, the return submitted by the petitioner-company was voluntary and the full amount or any amount of tax due from the assessee on the basis of that return was not deposited and no treasury receipt was, therefore, attached. Admittedly, no notice under section 7(2) of the Act was served on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings based thereon. The requirement of payment of tax before furnishing return under section 7(1) of the Act is a mandatory one, inasmuch as failure to do so would defeat the object of the statute, namely, realisation of tax at the time specified in the Act and also because certain penalty is attached to such failure under section 13(1)(a) and (d) of the Act. On the facts of that case, it was held that the return submitted, although within the prescribed period, was not a return within the meaning of section 7(1) read with section 7(3) and section 20(2) of the Act, as, before it was furnished, the tax due on the basis of it had not been paid into a Government treasury, contrary to the mandatory requirement to that effect in section 20(2) of the Act. On appeal therefrom, the Supreme Court in Superintendent of Taxes v. Bormahjan Tea Co. Ltd. [1978] 1 SCC 513 found that the two appeals related to the assessment quarters ending on September 30, 1960, and December 31, 1960, under the Act of 1961. In one case, the return was filed within time but without payment of tax and in the other the return was filed out of time and without payment of tax. .Admittedly, no notice either u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the return was non est. We find force in the contention. Next arises the question of refund of the amount already deposited. The petitioner's contention is that the voluntary return filed by it having been non est, the amount already deposited pursuant to the demand notice based on the assessment order on the voluntary return is to be refunded as the State had no authority to make any assessment on that return. The respondents sought to refute it submitting that the liability to pay tax under the Act was very much there and the assessment order, though not validly made, having now been validated by the Act of 1961, the question of refund would not arise. We are referred to the Special Bench decision in Salona Tea Co. Ltd. v. Superintendent of Taxes (Civil Rule Nos. 509 to 512 of 1973 decided on 14th June, 1979). Those petitions were directed against the orders of assessment made and demand notices issued under the Act of 1961 to declare the assessment and demands as illegal and to direct the respondents to refund the tax collected pursuant to those orders. After holding that the assessment made was without jurisdiction, the question whether the court should direct refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mistake of law. Relief was also refused in D. Cawasji and Co. v. State of Mysore, AIR 1975 SC 813. Section 23 of the Act of 1961 provides " 23. Refunds. -The Commissioner shall, in the prescribed manner, refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under this Act either by cash payment or, at the option of the producer or dealer, by set-off against the sum due from him in respect of any other period. Any penalty remitted by the Commissioner shall be refunded or adjusted in the like manner." This section speaks of any sum paid or realised in excess of the sum due from the assessee. Excess means that which exceeds ; the degree or amount by which one thing exceeds another. When the due tax is paid with something which exceeds it, the excess is to be refunded under section 23 of the 1961 Act. But will it make any difference when no tax is payable but some has been paid ? In our view, this should not make any difference. The reason behind providing for refund of the excess is that the State should not be allowed to retain what is not due to it. This will cover any amount paid as tax when no tax is payable. We accordingly hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restored to all he has lost by the execution of the judgment which is reversed ; the writ by which stolen goods were formerly restored to their true owner. Restitution means the restoring of anything unlawfully taken from another. It is most frequently used in the common law for setting them in the possession of lands and tenements that has been unlawfully disseised of them. Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. Where an executive authority has been empowered to collect a tax by an invalid law or rules made thereunder, the court is entitled to interfere. Acquiescence cannot take away from a party, the relief he is entitled to in case of contravention of article 265. This article embodies the principle of "no taxation without representation". "Authority of law" refers to a valid law, which means that the Legislature making the law must have been competent at the time when the taxing law was validly enacted [Firm Ghulam Hussain Hall Yakoob and Sons v. State of Rajasthan, AIR 1963 SC 379, 384, Bharat Kala Bhandar Ltd. v. Municipal Committee [1966] 59 ITR 73 (SC), State of Mysore v. Cawasji [1970] 3 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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