TMI Blog1984 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, the amount deposited by the petitioner in advance became refundable. The relevant facts, briefly stated, are as follows. In the State of Bihar, municipalities, municipal corporations and similar local bodies were empowered under the State laws to levy tax on trades, professions, callings and employments within their own spheres, but this taxation measure was not working well. The State Government, with an intention to raise additional resources, decided to take over the administration of profession tax and to extend its application to the whole of the State of Bihar. Accordingly, the said Ordinance No. 120 of 1973 was promulgated with effect from October 1, 1973, and its administration was entrusted to the Commercial Taxes D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees on their wages/salaries for the period from October 1, 1973, to February 28, 1974, on estimate basis, and any difference with the estimated amount was to be adjusted while depositing the tax for March, 1974. The aforesaid Ordinance was followed by Ordinance No. 5 of 1974, and the petitioner, as stated in paragraph 18 of the writ application, in spite of the application for registration, was not given registration certificate nor any assessment of tax was made and the amount deposited by it was " subject to final accounting and adjustment after the assessment of the taxes as and when done ". The Ordinance, however, was withdrawn and, according to the petitioner's case, the Government had decided to refund the entire amount d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced on behalf of the petitioner by Mr. Basudeva Prasad was that the liability for payment of the profession tax did not accrue as the registration of the petitioner and assessment of the liability under the provisions of the Ordinance were a sine qua non for payment of the tax and, therefore, until those conditions were fulfilled, the tax did not become due and, accordingly, the petitioner was clearly entitled to the refund. In order to appreciate the argument, I shall briefly refer to some of the provisions of the Ordinance. The charging section is section 3 which reads as follows: " 3. Charge of tax.--(1) Every person under one or the other of the classes mentioned in the second column of the Schedule appended hereto, shall pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im, within 15 days of expiry of that month, to the prescribed authority, accompanied by a treasury chalan in proof of the payment of the full amount of tax according to the return. Section 6(1) dealt with the assessment and read as follows: "6. Assessment of employers.--(1) If the prescribed authority is satisfied that the return filed is correct and complete, he shall accept the return." Sub-section (2) also empowered the prescribed authority, in cases not falling under sub-section (1), for examination of account.,,,, etc., and on its failure to assess tax due, to the best of it., judgment. Sub-section (3) read as follows: "(3) If an employer has wilfully failed to get himself registered or being registered has failed to file t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the House of Lords in Whitner v. IRC [1925] 10 TC 88 (HL), that liability to tax does not depend on assessment; that ex hypothesis has already been fixed: the assessment order only quantifies the liability which is already definitely and finally created by the charging sections [see Ishwarlal Parekh v. State of Maharashtra [1968] 70 ITR 95 (SC)]. In that view of the matter, I find myself unable to accept the contention of Mr. Basudeva Prasad that the liability of the petitioner was dependent either upon the grant of registration certificate or on the making of an assessment. The provisions of sections 3 and 4 of the Ordinance make it quite clear that the petitioner was to make deductions of the tax and deposit every month ..... X X X X Extracts X X X X X X X X Extracts X X X X
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