2017 (1) TMI 1059

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....as 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 of law, on account of which it is being discriminated, inasmuch as such assessees who have not deposited similar tax are entitled to benefit of remission, but such relief has been denied to the revisionist. Learned counsel has invited attention of the Court to a judgment rendered in Anand Gramodyog Samiti vs. Commissioner Trade Tax, 2005 UPTC 741. Para 16 and 18 of the judgment reads as under:- "16. The said argument is misconceived and cannot be accepted for the simple reason that India is a welfare State. A person who has deposited tax out of his own pocket cannot be permitted to be placed in a disadvantageous position than those who have not deposited tax at all. All the three authorities have concurrently found that the dealer applicant has deposited the tax from its own pocket and did not realize the same from the custo....

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....foresaid Circular was issued on the representation made by such persons who had not deposited tax. On this basis the Government granted remission from deposit of tax. The observation made above by me should not be misconstrued, therefore by way ot clarification it is mentioned that a persons who has realized tax and deposited the same will not be entitled for refund under the aforesaid Circular. To put it differently only such person and who have not realized tax but deposited it out of their own resources, will 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 th....

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.... have perused the materials brought on record. 8. In order to resolve the controversy raised in the present litigation, two distinct aspects needs to be noticed and dealt with. The first aspect relates to determination of factual issue as to whether assessee has not realized the tax from its consumers before it can claim any benefit of circular. On this aspect, this Court finds that the revisionist from the very initial stage has been making a specific claim before the authorities that it has not realized any amount of tax from its consumers over and above 4%. Such contention of the revisionist has been noticed by the authorities, but there is no finding on this aspect of the matter. In the counter affidavit filed by the State before this Court, assertion of assessee that it has not realized tax above 4% from its consumers has been denied. This Court is of the opinion that the issue as to whether the revisionist has realized tax over and above 4% from its consumers is a question of fact, which ought to be gone into by the authorities based upon the evidence led by the revisionists. In the absence of any finding returned by the authorities on this count, I am not inclined to ente....

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....n within a period of four months from the date of presentation of certified copy of this order. ============= Document 1 “उपर्युक्त के संबंध में मुझे यह कहने का निर्देश हुआ है कि शासन द्वारा सम्यक् विचारोपरान्त निर्णय लिया गया है कि दस हार्स पावर तक के डीजल इन्जन पम्प सेट पर दिनांक 30.9.2008 से 31.03. 2011 तक की अवधि में 4 प्रतिशत + यथा अतिरिक्à....