1. Case Nos. R.N. 19 of 1997 and 20 of 1997 are taken up together for adjudication because they involve identical issues. In the first case, the applicant-company is engaged in photo processing and for the period ending on March 31, 1992 deposited Rs. 2,04,487 as tax. But in view of the decision in the case of Studio Kamalalaya v. Commercial Tax Officer, Asansol Charge reported in [1993] 89 STC 307 (WBTT) ; (1993) 26 STA 85 the appellate authority remanded the matter to the concerned assessing authority for routine assessment in terms of the said decision. The assessing authority then assessed the tax liability for the period to be "nil" and declared the amount of Rs. 2,04,487 paid as tax to be the tax paid in excess. Though pursuant to same, a notice in form VII [prescribed under the Bengal Finance (Sales Tax) Act, 1941] was served on the applicant there was no order for refund of the money in cash or for deduction/adjustment of such excess amount against any tax, penalty or interest due in respect of other periods. Though the notice in form VII was issued showing the amount in excess, no refund payment order (cash) was issued in terms of Section 12(1) read with Rule 55(1A) of the 1941 Act. A large number of written prayers for refund failed to evoke any response. Ultimately, by a letter dated September 5, 1996 the C.T.O., Bhowanipore Charge intimated rejection of the applicant's prayer for refund.
2. In case of R.N. 20 of 1997 in similar circumstances an amount of Rs. 2,14,435 was found to have been paid in excess as tax by the applicant of that case. The applicants' prayers for refund were rejected by a letter dated September 5, 1996.
3. The applicants of these two cases have, therefore, filed their respective applications before this Tribunal for directing the respondents to refund the amounts paid by them in excess. They have also claimed interest under Section 10B of the 1941 Act for undue retention of their respective amounts.
4. In these two cases the respondent No. 3 has filed affidavit-in-opposition for self and other respondents. Therein there is no denial of the fact that the appellate authority remanded the two impugned assessments back to the assessing authority for reassessment and that the latter authority held the amounts, as mentioned in the two applications, to be excess payments of tax. The respondents, however, justify rejection of the prayer for refund on the ground that the applicants are not entitled to refund since the said sums of deposited money were not tax at all. It is the further case of the respondents that interest under Section 10B is admissible only in case of refund arising out of an order under Section 20 or 21 of the 1941 Act and that here the amount paid in excess has arisen out of orders of reassessment under Section 11 of the 1941 Act. The respondents further dispute the refundability of the amount on the ground that these are the amounts collected by the applicants of the two cases from the customers by way of tax without authority. However, during the hearing, the issue relating to collection as tax without authority has not been pursued.
5. The issues before us are whether the applicants of the two cases before us are entitled to get refund of the amounts on the ground of their being taxes paid in excess and whether they are also entitled to interest on the ground of unlawful retention of the amounts by the respondents.
6. In disputing the applicants' claim the first contention on behalf of the respondents is that the amount lying with the Commercial Tax Officer are not tax at all. Shri J.K. Goswami, learned State Representative contends that since the applicants were ultimately assessed as having no liability to pay tax, the money deposited cannot be said to be tax and that in such event the provision of Section 12(1) of the 1941 Act is not attracted, because the said section speaks of refund of tax, penalty or interest paid by a dealer in excess of amount due from him. We are unable to find any substance in such plea. The amounts in question, were deposited as tax and in the subsequent reassessments on the direction of the appellate authority the two applicants were found to have no liability to pay tax. Therefore, the amounts unquestionably remained as tax paid by the applicants in excess of the amount due from them. The assessing authority in his notice in form VII has in unambiguous terms declared the amounts in question to be tax paid in excess (vide annexure C to each of the two applications). It does not now lie in the mouth of the respondents to plead that the amounts in question are not tax paid in excess. Neither of the said notices issued in terms of Rule 55(1A) of the Bengal Sales Tax Rules, 1941, makes any whisper that there was arrear of tax, surcharge, additional surcharge and penalty in respect of other periods. Thus, under the said Rules there remains nothing to be adjusted against the said excess amounts. It is incumbent on the assessing authority to send along with the said notices the "refund payment orders (cash)" to the applicants of the two cases for the said amounts. But the said authority did not do so. It is surprising that the respondents even after filing of the two applications before this Tribunal now set up frivolous pleas to deny their liabilities to refund the amounts.
7. According to the respondents, the applicants are not entitled to get any interest in terms of Section 10B on the amounts of tax paid in excess, because the order dealing with such excess amount was made in course of assessment under Section 11 and not under Section 20 or 21.
The respondents are again resorting to cavilling. It is an order under Section 20 of the 1941 Act by which the appellate authority directed the assessing authority to reassess the applicants in the context of the decision of Studio Kamalalaya v. Commercial Tax Officer [1993] 89 STC 307 (WBTT) ; (1993) 26 STA 85. The declaration of excess payment of tax in the two assessment cases can, therefore, be said to arise out of the order of appellate authority under Section 20. Hence, the applicants can legitimately claim interest under Section 10B on the aforesaid amounts for the period during which they have been retained by the respondents. However, in the two cases before us, the absence of liability to pay tax for the first time came to be declared by the reassessment order dated November 1, 1994. Therefore, the period for which interest is available under Section 10B should be calculated treating the said two reassessment orders as the "orders" within the meaning of that section. Hence, we direct that the interest is to be calculated at the rate and in the manner specified in Section 10B and shall be paid to the applicants within three months from the date of this order.
8. In the result, the applications are allowed. The amounts found as "tax paid in excess" by the applicants of these two applications should be refunded along with the interest as directed above within a period of three months from now. We make no order as to costs. This order governs R.N. 19 and 20 of 1997.