TaxTMI 
TaxTMI 
2008 (7) TMI 563
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....y Dr. ARIJIT PASAYAT J. - The challenge in this appeal is to the judgment of a learned single judge of the Allahabad High Court allowing the trade tax revision filed by the respondent (hereinafter referred to as "the assess- ee/dealer"). The question involved lies within a very narrow compass, i.e., whether a dealer can make adjustment while depositing tax on the basis of tax, admitted to be payable, out of certain amounts which according to him had been deposited in excess for some other assessment periods. The High Court held that it was permissible under the U.P. Trade Tax Act, 1948 (in short, "the Act") and the U. P. Trade Tax Rules, 1948 (in short, "the Rules"). The background facts in a nutshell are as follows: The dealer-respo....
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....f the Act. The learned counsel for the Revenue submitted that the High Court clearly misconstrued the provisions contained in section 29 of the Act and, therefore, the view of the assessing officer as affirmed by the first appellate authority and the Tribunal should not have been interfered with. The learned counsel for the respondent, on the other hand, submitted that the assessee is entitled to refund and there is no reason as to why he cannot make adjustment. Section 29 of the Act reads as follows: "(1) The assessing authority shall, in the manner prescribed, refund to a dealer any amount of tax, fees or other dues paid in excess of the amount due from him under this Act: Provided that the amount found to be refundable shall first be ....
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....efundable and due to be refunded. No authority has found any amount to be refundable. The stand of the dealer that since the matter was remanded by the appellate authority any amount paid beyond the admitted tax has to be construed as refundable is clearly untenable. The expression used is "found to be refundable". In other words, it must be as a result of adjudication. The amount has to be found to be refundable. In the instant case, there is no such adjudication. Even otherwise, the power of adjustment lies with the authority under the statute. While granting refund, he has to first find out whether there is any amount which has to be adjusted against tax or other amounts outstanding against the dealer under the Act or the Central Act an....