TaxTMI 
TaxTMI 
2003 (9) TMI 722
X X X X Extracts X X X X
X X X X Extracts X X X X
.... been set aside by the Joint Excise and Taxation Commissioner, second respondent, arrayed in this petition, vide orders dated December 31, 1990. Petitioner also seeks issuance of writ in the nature of mandamus declaring rule 35(1)(b) of the Haryana General Sales Tax Rules, 1975 as unconstitutional, ultra vires articles 14, 19(1)(g) and 265 of the Constitution of India, in this petition filed by it under article 226 of the Constitution of India. 2.. Brief facts of the case, as projected in the petition, reveal that the petitioner is a registered firm and its books were assessed for the assessment year 1984-85 by the fourth respondent and vide his assessment order dated July 4, 1986, the said authority disallowed the sale to the registe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed towards the amount of tax due for the period April 1, 1991 to June 30, 1991 or any subsequent month/quarter. 4.. It is the case of the petitioner that the tax amounting to Rs. 17,019 was deposited with the fourth respondent with effect from September 1, 1986 to December 16, 1986 on which interest calculated at 18 per cent comes to Rs. 20,900 approximately. The petitioner represented to the fourth respondent for payment of interest as per their calculation on the amount of tax illegally retained and enjoyed by the department but its request was turned down. 5.. It is further the case of the petitioner that rule 35(1)(4) of the Rules of 1975 does not provide for payment of interest on the amount illegally retained by the department-S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to deposit in pursuance of the illegal order of assessment and which has been retained and used by the department/State for as many as four years, in the present case. It is then urged that article 265 of the Constitution of India provides that no tax shall be levied or collected except by the authority of law and as such it hits rule 35(1)(b) of the Rules because the tax was imposed by the fourth respondent vide order dated July 4, 1986 after which the tax was deposited by December 16, 1986 and the order of the Assessing Authority was set aside being illegal by the second respondent on December 31, 1990, against which no further appeal was filed. By implication, it shall have to be held that the tax collected by the fourth respondent was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erest, whereas in the case of refund, in the manner, referred to above, State is not to pay interest, would be violative of article 14 of the Constitution of India, is concerned, same also does not appear to be based on any solid foundation. 9.. A defaulter of tax, who does not pay it within the prescribed time and the State in the matter of refund of amount of excess tax paid, in our considered view, do not stand on the same footing. There is a difference between a defaulter, who does not pay tax within the prescribed time and the State which has to refund the amount of excess tax paid, either voluntarily by the assessee or as a result of an assessment order. The assessee and the State cannot be said to be equally situated and if that b....