2011 (5) TMI 889

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....e rate of four per cent. The assessing authority treated the above supply as unclassified item and imposed tax at the rate of 12.5 per cent. Against the assessment order revisionist filed an appeal before the Joint Commissioner (Appeals), Commercial Tax, Bareilly. During the pendency of the appeal, Notification No. 2-485 dated May 13, 2010 was issued by the State Government under section 3(11) read with section 81(2)(a) of the U. P. VAT Act whereunder liability to tax on aforesaid purchase was shifted upon the purchasing dealer, i.e., industries engaged in power generation, transmission and distribution with investment of more than 1,000 crore up to March 31, 2009. The said notification was made effective from January 1, 2008. Accordingly, ....

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....ng the matter. On the revision being presented, learned standing counsel was allowed time to seek instructions. Thereafter vide order dated March 18, 2011, on the submission of the learned standing counsel that the refund of the aforesaid amount was only an ex parte version and, therefore, its authenticity is required to be examined, this court directed the assessing authority to examine the same and to submit a report within four weeks. Pursuant to the above order, the learned standing counsel has filed a counter-affidavit stating that in view of the direction of this court, the authorities have issued notice to the RPSCL and on verification it is fpund that the amount of Rs. 5,32,742 was refunded by the revisionist to the RPSCL. The....

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....foresaid amount was realised in consonance with the aforesaid provisions. It was bona fidely refunded to RPSCL in view of the notification dated May 13, 2010 which came subsequently but with retrospective effect from January 1, 2008. As such, the revisionist was not under any legal obligation to deposit the same with the Department. The revisionist was free to refund the same to the RPSCL from whom the same was realised as soon as the liability to tax on the sale and purchase of aforesaid goods/material was taken over by the RPSCL pursuant to the above notification. A Division Bench of this court in the case of Agarwal Enterprises, Allahabad v. Trade Tax Officer, Allahabad [1997] UPTC 763, while considering section 29A(3) of the U. P. Tr....