9911796707
TMI Blog2022 (9) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commercial Tax Officer for the assessment years 1995-96, 1996-97 and 1997-98 in so far as they impose tax of Rs. 2,20,880, Rs. 21,17,129 and Rs. 28,35,996 on lease rentals under section 5-E of the APGST Act and set aside the assessment orders of the Commercial Tax Officer as the Supreme Court has held section 5E(b) of the APGST Act as unconstitutional and read it down and held the situs of sale to be the place where the agreement is executed and direct the respondent to revise the assessment orders accordingly and to refund the aforesaid taxes paid by the petitioner and pass such other order or orders. . ." 2. We have heard the submissions of Sri S. Dwarakanath, the learned senior counsel appearing for the petitioner, Sri K. Raji Reddy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nwards. However, the petitioner's claim for the later assessment years, i. e., 1998-99 and l999-2000 was allowed by the assessment authority following the decision of the honourable apex court in 20th Century Finance Corporation Limited's [2000] 6 SCC 12. Meanwhile, the Deputy Commissioner initiated revision of assessment for the years 1998-1999 and 1999-2000 proposing to levy tax under section 5E of Act 6 of 1957 on lease rentals, on an ironical ground that lessees have denied the lease transactions and hence, execution of lease agreement in Chennai is immaterial. Later, the Deputy Commissioner confirmed the revision and levied tax. As the tax was levied on the same transactions on another ground, it delayed the petitioners' ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is apt to extract paragraph 52 of 20th Century Finance Corporation Limited's case [2000] 6 SCC 12, which read as follows : "52. We have already held that since the definition of sale so far as it relates to transaction of transfer of right to use any goods is concerned in Central Sales tax Act has not been amended, the provisions of section 4 of the Central Sales tax Act will not be applicable to such transactions. Thus, we find that clause (b) of section 5E is in excess of legislative power of the state under entry 54 o List II of Seventh Schedule. We, therefore direct that clause (b) of section 5E of the Act shall be read down to this effect that it would not be applicable to the transactor of transfer of right to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration contained in article 265 of the Constitution of India and also by virtue of section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into account the principle under lying clause (c) of sub-section (1) of section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be, since the enactments do not contemplate any of their provisions being struck down and a refund claim arising on that account. In other words, a claim of this nature is not contemplated by the said enactments and is outside their purview." 8. As held by the honourable apex court in Mafatlal Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered in the case of another person. It is not open for a person to say that the decision of the court or Tribunal in another person's case has enabled him to discover mis take under which he has paid tax. A petitioner cannot claim that he is entitled to prefer a writ petition or to institute a suit on discovery of such mistake. A person must fight his own battle and succeed or fail in his proceedings. This is the ratio of the decision in Mafatlal Indus tries's [1997] 5 SCC 536. In the view of the matter, we find absolutely no force in the petitioner's cases that they are entitled to the benefit of the G. O. Ms. No. 1055, (Revenue) dated October 17, 1994 merely because some other assessee has suc ceeded in his own writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
