TaxTMI 
TaxTMI 
2003 (9) TMI 733
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.... detected by the applicant subsequently and it adjusted the part of the excess amount itself deposited in the third quarter of 1979-80 and the remaining excess amount in the assessment year 1980-81. Applications for adjustment were filed on April 29, 1980 for adjustment of the excess amount against the assessment year 1979-80 and on July 31, 1980 for the adjustment of the remaining excess amount in the assessment year 1980-81. These applications could not be disposed of and the matter was referred to Assistant Commissioner (E) for approval being the amount of refund was in excess to the limit of Rs. 10,000. 4.. Further it appears that in the meantime the assessment proceedings by the order dated November 20, 1982 for the assessment year 1978-79 were completed. The assessing officer after taking into account the additional deposit of Rs. 10,198.22 created the additional demand of Rs. 2,983. This order was modified by the first appellate authority by the order dated July 19, 1983. The first appellate authority by this order reduced the turnover of seera and also reduced the tax of Rs. 9,800. The first appellate authority (Assistant Commissioner, Judicial) ordered the refund of the e....
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....ing interest can be disposed of immediately. The reliance was placed by the Tribunal upon a single Judge's judgment of this Court in the case of Banwari Lal Buddha Sen v. Commissioner of Sales Tax, U.P. [1988] 69 STC 83; 1987 UPTC 880. This judgment is not a good law as observed by a division Bench of this Court in the case of Ram Lal & Sons v. Deputy Commissioner (Appeals), Sales Tax 1992 UPTC 107. The division Bench has placed reliance upon the earlier division Bench of this Court in the case of Hind Lamps Ltd. v. State of U.P. 1986 UPTC 54. In the face of these two division Bench judgments the learned Standing Counsel was unable to support the order of the Tribunal on this point. Therefore, the Tribunal has committed illegality in holding that the order demanding interest is not appealable. To put it differently it is held that the order imposing interest is appealable. To make it further clear, when the dealer is disputing its liability to pay interest such an order demanding interest is appealable under section 9 of the Act. Under section 9 of the Act, every order passed by the assessing authority is appealable except an order passed under section 10-A of the Act. 8.. Now th....
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....rity in case it was found to be in excess of the amount eventually assessed against him. But then such amount or any amount directed to be refunded by the appellate or the revisional authority could be refunded only if an application for the purpose was made by him. (See Indodan Milk Products v. State of U.P. 1983 UPTC 583). 10.. The learned Standing Counsel has placed strong reliance upon the aforesaid judgment of this Court in the case of Indodan Milk Products v. State of U.P. 1983 UPTC 583 and submitted that objection to pay interest could not arise merely because there was some order by the assessing authority or any other competent authority by virtue of which the amount had eventually to be refunded to a dealer. The aforesaid case and facts is quite distinguishable and has no application to the facts of the present case. In that case the assessee was claiming interest on the amount of refund due to it from the date of order in consonance to which the refund became due. The controversy in that case was as to for what period the department is liable to pay interest on the amount. According to the dealer of that case the interest should have been granted from the date when the....
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....n, must repay or return it." The aforesaid section contains two illustrations (a) and (b). Illustration (a) is relevant for our purposes which reads as follows: "(a) A and B jointly owe Rs. 100 to C. A alone pays the amount to C and B, not knowing this fact, pays Rs. 100 over again to C. C is bound to repay the amount to B." 13.. The aforesaid section deals with situation with regard to the overpayment of income-tax, sales tax or excess dues also. Payment "by mistake" in section 72 refers to payment which was not legally due and which could not have been enforced. The mistake is in thinking that the money paid was due when, in fact, it was not due. In Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi AIR 1949 PC 297 it has been held that "mistake" in section 72 must not be given a limited meaning. It has been further held that once it is established that the payment in question was not due it is irrelevant to consider whether or not there was a contract between the parties under which some other sum was due. The judgment of Calcutta High Court given in the case of Jagadish Prosad Pannalal v. Produce Exchange Corporation Ltd. AIR 1946 Cal 245 was approved in the case before....
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....actions in silver. It was held that State of U.P. was not entitled to receive the sales tax on these transactions, the provisions in that behalf being ultra vires. The Supreme Court negated the plea of the department that the payments having been made in discharge of liability under the U.P. Sales Tax Act, the terms of section 72 of the Indian Contract Act, 1872 are not applicable. The relevant portion is quoted below: "It was, however, contended that the payments having been made in discharge of the liability under the U.P. Sales Tax Act, they were payments of tax and even though the terms of section 72 of the Indian Contract Act applied to the facts of the present case no moneys paid by way of tax could be recovered. We do not see any warrant for this proposition within the terms of section 72 itself. ..................". 20.. The Privy Council decision in Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi AIR 1949 PC 297 has set the whole controversy at rest and if it is once established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law the party is entitled to recover the same and the party receiving the same is bou....