TMI Blog1983 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner was assessed under the Central Sales Tax Act. That was so done on the ground that the petitioner is a dealer. The assessing authority took the view that though the petitioner is a producer, it was formed with the intention to carry on business activities and so the turnover of inter-State sales of rubber produced in the estates of the company is assessable to tax under the Central Sales Tax Act. Assessments were accordingly made for the years 1970-71) 1971-72, 1972-73, 1973-74 and 1974-75. In pursuance of the assessment orders, notices of demand were served on the petitioner for all the years. Tax became due and payable as per the notices of demand so served on the petitioner. The petitioner filed appeals before the Deputy Commissioner of Sales Tax and Agricultural Income-tax and assailed these assessment orders. Since the tax assessed became payable under the different notices of demand for all the five years, the petitioner had also filed appropriate petitions before the appellate authority seeking stay of recovery of the tax assessed. For the years 1970-71 and 1971-72, the petitioner had to invoke the aid of this court finally to get the relief of stay of collection o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to refund of the amounts paid already. Stating the above facts the petitioner filed exhibit P-I petition before the Assistant Commissioner of Sales Tax, Special Circle, Alleppey, dated 13th June, 1980. By exhibit P-12 communication the Assistant Commissioner of Sales Tax, Alleppey, informed the petitioner that the petitioner is not eligible for the refund of tax already paid since Government have only waived the collection of Central sales tax prior to 1st June, 1978. This order, exhibit P-12, is dated 16th June, 1980. In this original petition the petitioner seeks to quash exhibit P-12 and also prays that this court may be pleased to direct the 6th respondent, the Assistant Commissioner of Sales Tax, Special Circle, Alleppey, to make the refund of an amount of Rs. 2,80,512. 10, being the amount deposited by the petitioner towards the alleged tax liability as directed by this court for the years 1970-71 and 1971-72 and for the other years by the Appellate Assistant Commissioner, Sales Tax, Alleppey. The petitioner has also prayed for grant of other appropriate reliefs. 3. On behalf of respondents 1 to 3 a detailed counter-affidavit has been filed dated 27th March, 1982. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reversed decree : vide Meenakshi Amma v. Rama Kurup [1973] KLT 389. Substantially, the same principles apply to the proceedings under the taxation laws as well, unless there is anything contrary in the particular taxation law, expressly or by necessary implication. The Government Pleader was not able to bring to my notice any provision, statutory or otherwise, which makes the above principle inapplicable for proceedings under the Kerala General Sales Tax Act, 1963. Moreover, in a case arising under the Income-tax Act, 1922, in ITO v. Seghu Buchiah Setty [1964] 52 ITR 538 at p. 543 (SC), it was held by the Supreme Court: " If the original order has been destroyed or replaced by the appellate order, then the notice of demand and all other steps based upon the original order must be deemed to have become ineffective." In Purshottam Dayal Varshney v. CIT [1974] 94 ITR 187, a Bench of the Allahabad High Court observed at page 190: " It follows, therefore, that if an assessment order is set aside, the notice of demand becomes ineffective and the tax already paid under such a notice of demand becomes refundable. If a fresh assessment is made, the tax determined as a result of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eye of law. It should be noted that in the Kerala General Sales Tax Act, there is no section corresponding to sections 240 and 241 of the Income-tax Act, 1961, or section 14-D of the Orissa Sales Tax Act. The Assistant Commissioner (Assessment) of Sales Tax was totally in error, in not refunding the amount as soon as the assessments were cancelled and request was made by the petitioner to refund the amounts paid towards the assessments pending the appeals. On this short ground the petitioner is entitled to succeed and exhibit P-12 deserves to be annulled. The petitioner is also entitled to a direction that the amount of Rs. 2,80,512-10 paid towards tax for the years 1970-71 to 1974-75 is liable to be refunded to him by the 6th respondent. 7. The petitioner's counsel further contended that in view of exhibit P-8 order of Government, G.O. No. 48/79/TD dated 21st March, 1979, there cannot be fresh assessments in pursuance of the orders passed by the appellate authority in exhibits P-6 and P-7 and even if fresh assessments are so made, no tax can be levied or collected in pursuance thereof in view of the aforesaid Government order. Exhibit P-8 order is to the following effect : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f is instructive and it is to the following effect : " The petitioner, a dealer in cotton seeds, was assessed to tax under the Haryana General Sales Tax Act, 1973, on the purchase turnover of cotton seeds for the period 14th May, 1964, to 27th February, 1969, for which period a direction was issued by the Excise and Taxation Commissioner to the effect that no tax on cotton seeds be realised. The petitioner having already paid the tax made an application for the refund of that amount, which was refused by the sales tax authorities. On a writ petition : Held, that in the face of the direction of the Excise and Taxation Commissioner, the petitioner would be entitled to the refund. To deny the relief to the petitioner, besides other legal infirmities, would also amount to discrimination inasmuch as it would be putting persons who had paid the tax in a worse position than those who did not care to do so. " I agree with the said decision and hold that on this ground also the petitioner is entitled to the reliefs prayed for. 9. In the result, I quash exhibit P-12 dated 16th June, 1980, passed by the Assistant Commissioner of Sales Tax, Special Circle, Alleppey. hereby further dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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