TaxTMI 
TaxTMI 
1990 (7) TMI 343
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....er directing the respondents calling for the records relating to the proceedings of the first respondent, authorising to retain the amount of Rs. 5,00,000 with the department and quashing the same; (c) to award the cost of this petition to the petitioner; (d) to grant such other reliefs as this Honourable Court be deem fit and proper to grant." The provisional assessment for the period from April, 1988 to February, 1989 (exhibit PI) was set aside by the appellate authority as is seen from exhibit P2 order. The operative portion thereof reads: "In the result the provisional assessment impugned in this appeal stands set aside and remitted back to the assessing authority for fresh disposal." This order is dated 28th day of February, 1990.....
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....nt due to be refunded under sub-section (1) or sub-section (2) towards the recovery of any amount due, on the date of adjustment, from the dealer. (4) In case refund under sub-section (1) or sub-section (2) or adjustment under sub-section (3) is not made within ninety days of the date of final assessment or, as the case may be, within ninety days of the date of receipt of the order in appeal or revision or the date of expiry of the time for preferring appeal or revision, the dealer shall be entitled to claim interest at the rate of six per cent per annum on the amount due to him from the date of expiry of the said period up to the date of payment or adjustment." Rule 43(2) reads: "43. Communication of order, etc.-(1) .........................
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.... being retained unauthorisedly. This argument cannot be taken cognisance of in the light of the provisions of the Act and the Rules extracted above. 4.. What then is the scope of these provisions? Sub-section (1) of section 44 is to cover cases where a dealer has paid the tax in advance. In such cases if the assessing authority, while making the final assessment finds that the dealer has paid tax in excess of what is due from him, the assessing authority is bound to refund the excess to the dealer. Sub-section (2) on the other hand, commands the assessing authority to effect refund of the tax or penalty paid by a dealer on the assessing authority receiving an order in that regard either from the appellate authority or the revisional author....
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....r cent per annum on the refundable amount due to him from the date of the expiry of the period of ninety days of the date of final assessment or, as the case may be, within ninety days of receipt of the order in appeal or revision or the date of expiry of the time for preferring appeal or revision, up to the date of payment or adjustment. It, therefore, follows that in case the assessing authority fails to exercise the jurisdiction conferred on him under subsections (1), (2) and (3) of section 44 and consequently the assessing authority retains the excess tax and the penalty, a dealer had paid, the dealer is entitled to claim interest at 6 per cent per annum from the date of the expiry of the ninety days contemplated under sub-section (4) a....