Biswajit Roy Vs. Commercial Tax Officer and ors. - Court Judgment

Excerpt:
1. this is an application under section 8 of the west bengal taxation tribunal act, 1987, in the nature of a writ application under article 226 of the constitution of india.2. the facts are that an order of assessment was made by respondent no.1 on june 26, 1996 in respect of the period of four quarters ending march 31, 1994 under the bengal finance (sales tax) act, 1941. the applicant made an application for review of the order of assessment.since that application was not being heard, he preferred an application under section 8 of the west bengal taxation tribunal act, 1987 before this tribunal, being rn-307/97. in pursuance of a direction given in that case, respondent no. 1 passed a review order dated december 17, 1997 holding that the sum of rs. 6,248.99 had been paid in excess as tax by the applicant. to that effect, a fresh demand notice was issued on the same day. but no refund order was issued accordingly, although applications for issuance of refund order were made to respondent no. 1 by the applicant on march 5, 1998 and december 3, 1998. hence the present application.3. we have heard the arguments by learned advocate for the applicant and the state representative appearing for the respondents. mr. p.g.goswami, learned advocate for the applicant, submits that the authorities are generally unwilling to issue refund orders, for which reason several dealers had to move this tribunal. he also submits that the present applicant had to move this tribunal for a direction to dispose of the application for review of the order of assessment, and only then the order of review was made, but even thereafter the refund order was not issued. he therefore, presses for grant of cost and interest.4. mr. j.k. goswami, learned state representative, submits on the other hand that the matter has been delayed because of transfer of the commercial tax officer who made the order of review. the new incumbent found out that certain transactions of works contract taxable under section 6-d of the 1941 act have not been taken into account in the order of review. therefore, the present commercial tax officer wants to make a second review of the order of assessment and thereafter to dispose of the prayer for refund.5. the applicant is the proprietor of the business having the trade name of roy enterprises. in paragraph 2 of the present application it is admitted that the business carries on the execution of works contract in the nature of installation of pump, repairing and maintenance of electrical works, construction, etc., and also supply of materials. the business is registered as a dealer under the 1941 act.6. during the hearing it was found that neither section 20(4) of the 1941 act, nor rule 82 of the bengal sales tax rules, 1941 envisages a review by an officer who is successor-in-office. rule 82 rather clearly lays down that no review can be made by a successor-in-office. it, however, says that where necessary, an application for revision to the next higher authority can be made for modification of any order. the period of making an application for revision is 60 days from the date of the order, but in the present case the impugned order of review had been made on december 17, 1997, and no application for revision has yet been made by respondent no. 1. in the circumstances, respondent no. 1 is directed to give refund payment order (cash) in favour of the applicant for the sum of rs. 6,248 within 3 (three) weeks from now.7. as regards prayer for cost of the present proceeding, it is reasonable, because earlier the applicant had to approach this tribunal for having the application for review disposed of. we, therefore, direct respondent no. 1 to pay a token cost of rs. 250 to the applicant within the said period of 3 (three) weeks from today.8. there is no reason in the circumstance of the present case why the respondent should not pay the interest on the amount to be refunded in terms of section 10-b of the 1941 act. accordingly, we direct respondent no. 1 to pay the interest calculated in terms of section 10-b to the applicant on the amount to be refunded and that payment should also be made within the said period of 3 (three) weeks from now.

Judgment:
1. This is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, in the nature of a writ application under Article 226 of the Constitution of India.

2. The facts are that an order of assessment was made by respondent No.1 on June 26, 1996 in respect of the period of four quarters ending March 31, 1994 under the Bengal Finance (Sales Tax) Act, 1941. The applicant made an application for review of the order of assessment.

Since that application was not being heard, he preferred an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 before this Tribunal, being RN-307/97. In pursuance of a direction given in that case, respondent No. 1 passed a review order dated December 17, 1997 holding that the sum of Rs. 6,248.99 had been paid in excess as tax by the applicant. To that effect, a fresh demand notice was issued on the same day. But no refund order was issued accordingly, although applications for issuance of refund order were made to respondent No. 1 by the applicant on March 5, 1998 and December 3, 1998. Hence the present application.

3. We have heard the arguments by learned advocate for the applicant and the State Representative appearing for the respondents. Mr. P.G.Goswami, learned advocate for the applicant, submits that the authorities are generally unwilling to issue refund orders, for which reason several dealers had to move this Tribunal. He also submits that the present applicant had to move this Tribunal for a direction to dispose of the application for review of the order of assessment, and only then the order of review was made, but even thereafter the refund order was not issued. He therefore, presses for grant of cost and interest.

4. Mr. J.K. Goswami, learned State Representative, submits on the other hand that the matter has been delayed because of transfer of the Commercial Tax Officer who made the order of review. The new incumbent found out that certain transactions of works contract taxable under Section 6-D of the 1941 Act have not been taken into account in the order of review. Therefore, the present Commercial Tax Officer wants to make a second review of the order of assessment and thereafter to dispose of the prayer for refund.

5. The applicant is the proprietor of the business having the trade name of Roy Enterprises. In paragraph 2 of the present application it is admitted that the business carries on the execution of works contract in the nature of installation of pump, repairing and maintenance of electrical works, construction, etc., and also supply of materials. The business is registered as a dealer under the 1941 Act.

6. During the hearing it was found that neither Section 20(4) of the 1941 Act, nor Rule 82 of the Bengal Sales Tax Rules, 1941 envisages a review by an officer who is successor-in-office. Rule 82 rather clearly lays down that no review can be made by a successor-in-office. It, however, says that where necessary, an application for revision to the next higher authority can be made for modification of any order. The period of making an application for revision is 60 days from the date of the order, but in the present case the impugned order of review had been made on December 17, 1997, and no application for revision has yet been made by respondent No. 1. In the circumstances, respondent No. 1 is directed to give refund payment order (cash) in favour of the applicant for the sum of Rs. 6,248 within 3 (three) weeks from now.

7. As regards prayer for cost of the present proceeding, it is reasonable, because earlier the applicant had to approach this Tribunal for having the application for review disposed of. We, therefore, direct respondent No. 1 to pay a token cost of Rs. 250 to the applicant within the said period of 3 (three) weeks from today.

8. There is no reason in the circumstance of the present case why the respondent should not pay the interest on the amount to be refunded in terms of Section 10-B of the 1941 Act. Accordingly, we direct respondent No. 1 to pay the interest calculated in terms of Section 10-B to the applicant on the amount to be refunded and that payment should also be made within the said period of 3 (three) weeks from now.