The revisionist is a registered partnership firm engaged in the business of construction of roads and supply of "Gitti and Rori"
The revisionist as per the contract entered into with Rosa Power Supply Company Limited, Rosa (RPSCL) supplied concrete to the aforesaid company and admitted tax liability at the rate of 4%. The assessing authority treated the above supply as unclassified item and imposed tax at the rate of 12.5%. Against the assessment order revisionist filed an appeal before the Joint Commissioner (Appeals), Commercial Tax, Bareilly. During the pendency of appeal Notification No.2-485 dated 13.5.2010 was issued by the State Government under Section 3(11) read with Section 81(2)(a) of the U.P. Vat Act where under liability of 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 1000 crore up to 31.3.2009. The said notification was made effective from 1.1.2008. Accordingly, revisionist who had realised a sum of Rs.5,32,742/- on the supply of concrete refunded the said amount by cheque No.756370 dated 31.10.2010 drawn on Bank of Baroda to RPSCL. The refund of the said amount was certified by the RPSCL vide certificate dated 2.12.2010 and even Form - F as prescribed by the Circular dated 9.6.2010 pursuant to the above notification was issued owing tax liability of the aforesaid amount for the period January, 2008 to March, 2008. RPSCL also issued certificate dated 21.7.2010 certifying that it had invested an aggregate capital of more than 1000 crore till 31.3.2009.
The appellate authority though accepted Form - F but refused to recognise the refund of Rs.5,32,742/- and saddled the revisionist with the liability to pay aforesaid amount of tax.
Aggrieved revisionist preferred further appeal to the Commercial tax tribunal. The tribunal vide order dated 25.1.2011 allowed the appeal by reducing the tax liability confirmed by the first appellate authority but remanded the matter to the assessing authority for the limited purpose of verifying the correctness/validity of the refund of Rs.5,32,742/- to RPSCL.
It is against the aforesaid order of the tribunal dated 25.1.2011 that the revisionist has preferred this revision only on the limited point that under the aforesaid facts and circumstances when the refund of the aforesaid amount of Rs.5,32,742 to RPSCL is admitted there is no justification for remanding the matter.
On the revision being presented, learned Standing Counsel was allowed time to seek instructions. Thereafter vide order dated 18.3.2011, on the submission of 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, 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 found that the amount of Rs.5,32,742/- was refunded by the revisionist to the RPSCL. The letter of the Deputy Commissioner, Commercial Tax, Khand - 4, Shahjahanpur dated 4th March, 2011 in this regard has also been brought on record.
In view of above, there is no dispute that the aforesaid amount has been refunded by the revisionist to RPSCL.
Now the only question which requires consideration is whether the aforesaid refund was validly made or not.
In this connection Section 43 of the U.P. Vat Act is relevant. It provides for the procedure for disbursement of any tax amount which may have wrongly been realised by the dealers. Sub Section (1) of the aforesaid provision lays down that where any amount has been realised from any person by any dealer by way of tax on sale or purchase of goods in contravention of provision of Sections 22 and 23 such dealer shall deposit the amount so realised with the department within time prescribed under Section 24 of the Act.
A reading of the aforesaid provisions demonstrates that the tax amount realised by the dealer in contravention of provisions of Sections 22 and 23 is liable to be deposited with the department within time prescribed under Section 24 of the Act and, as such, there is no bar upon the dealer from refunding the tax realised by him to the person concerned, if it is not realised in violation of provisions of Sections 22 and 23 of the Act.
It is not the case that the revisionist had realised the aforesaid amount of tax of Rs.5,32,742 in contravention of Sections 22 and 23 of the Act, rather the aforesaid amount was realised in consonance with the aforesaid provisions. It was bonafidely refunded to RPSCL in view of the notification dated 13.5.2010 which came subsequently but with retrospective effect 1.1.2008. 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 of 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 M/s. Agarwal Enterprises, Allahabad Vs. Trade Tax Officer, Allahabad and others 1997 UPTC 763 while considering Section 29-A(3) of U.P. Trade Tax Act, 1948 where under refund of wrongly realised tax was permissible only to the person from whom the tax was realised and not to any other person, the Court took the view that the aforesaid provision ought to be interpreted with justice oriented approach and refund to the agent of the dealer is sufficient compliance.
The aforesaid decision has also been followed by another Division Bench in the case of M/s. D.C.S. Shriram Consolidated Ltd., Meerut Vs. State of U.P. and another 2002 UPTC 65 while dealing with Section 29-A(3) of the U.P. Trade Tax Act. It was held that where the dealer has claimed to have refunded the entire amount wrongly realised, the assessing authority has to make enquiry from the purchasers paying such tax and if the amount is found to have been refunded, to pass appropriate order in this regard.
In the present case such an enquiry has been made and it has been found that the revisionist has refunded the amount of Rs.5,72,742/- to the purchaser RPSCL who owe the liability to pay the tax. Thus, the liability to pay/deposit the said amount cannot be fastened upon the revisionist.
In the facts and circumstances detailed above, as necessary verification with regard to the refund of the above amount has already been done by the assessing authority and a report submitted, there is no useful purpose in maintaining the order of remand as passed by the tribunal.
Accordingly, the revision is allowed in part and the order of the tribunal dated 25.1.2011 is modified only to the extent it remands the matter for verification of refund of the aforesaid amount.
Revision allowed as above.
Order Date :- 25.5.2011 brizesh