TaxTMI 
TaxTMI 
2017 (1) TMI 1059
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....hereby realization of tax above 4% together with interest was granted remission provided such amount has not been realized by the seller from its consumers. The circular dated 5.9.2012 reads as under:- 2. Revisionist contends that it has not realized any tax from its consumers and had deposited the amount of tax under protest. Subsequently, an application was made to refund this amount, which has been rejected by the assessing authority primarily on the ground that there is no provision in the circular for any refund of tax already realized. This finding has been affirmed in first appeal as well as by the tribunal. 3. Learned counsel for the revisionist contends that revisionist is a sincere tax payer and has complied with the requirement....
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....his view, which I am taking is not only reasonable but is also within the Constitutional Scheme that India is a Welfare State. The provision for refund of fix on the facts of the present case is very much implicit and can be read in the Circular otherwise it would amount to denial of justice to the dealer. Very recently the Hon'ble Supreme Court in the case of B.P. Achla Anand v. S.A. Reddy See has observed that unusual facts and situation posing the issue for resolution is an opportunity for innovation of law. It has observed that the law, as administered by Courts'/transforms into justice. It has quoted the definition of justice mentioned in Justin man's Copus Jurist Civil is (adopted from the Roman Jurist Ulpain) states "just....
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.... be entitled for refund of tax." 4. Learned counsel for the revisionist has further placed reliance upon a decision of the Apex Court in Vikram Cement & Another vs. State of Madhya Pradesh & Others, (2015) 11 SCC 708. Para 6 of the judgment, which is relevant for the purposes, reads as under:- "6. After giving our thoughful consideration to the issue involved, we are of the view that there is force in the submission of the learned counsel for the appellants. The Explanation attached to Notification dated 4.5.1999, or for that mater the Notification dated 5.7.1999, which states that the amount shall not be refunded in any case on the basis that dealer had filed the tax at a higher rate, results in invidious discrimination towards those w....
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.... law would amount to unjust enrichment and would be contrary to Article 14 of the Constitution of India. It is contended on behalf of the revisionist that in the facts of the present case, the orders passed by the authorities are not liable to be sustained inasmuch as the only ground taken to non-suit the revisionist is that there exists no provision in the circular permitting refund of the amount, which is in teeth of law laid down by this Court as well as Apex Court. 6. Sri Nimai Das, learned Standing Counsel appearing for the State submits that revisionist's case does not fall within the terms of circular, inasmuch as the revisionist has already realized the tax from its consumers, and therefore, the benefit of circular would not be....
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....ortunity of hearing to the revisionist. 9. The second question which arises for consideration is as to whether the relief of remission of tax could be denied to the revisionist merely because the circular contains no provision of refund. On this aspect of the matter, I find substance in the argument advanced on behalf of the revisionist that this Court in Anand Gramodhyog Samiti (supra) after noticing the judgment of the Apex Court, on the issue, has been pleased to hold that mere absence of enabling provision would not be a ground to deny refund of tax, in case tax is not otherwise liable to be realized from the assessee. In case State's action is allowed to stand, it would mean that an honest tax payer would be discriminated since th....