JUDGMENT Rajes Kumar, J.
1. These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 29.12.1998 for the assessment years 1989-90 and 90-91.
2. Brief facts giving rise to the present revisions are that the applicant purchased plastic goods from M/s M/s Ideal Distributors, Agra. While making the sale M/s Ideal Distributors had charged 12% tax from the applicant M/s Ideal Distributors in their assessment proceedings contended that such plastic goods were liable to tax @ 8% and not @ 12°/o. It appears that the claim of M/s Ideal Distributors was accepted and the tax @ 8% was assessed. Applicant contended that the excess amount of tax paid by M/s Ideal Distributors had not be refunded in view of Section 29-A(2) of the Act and applicant being the person from whom excess amount of tax had been realized, applications under Section 29-A(3) of the Act was moved before the concerned officer for the refund of the excess amount. The said applications were rejected. First appeals filed by the applicant have also been rejected. Applicant filed second appeals before the Tribunal Tribunal by the impugned order rejected the application on the ground that the applicant is a dealer and, therefore, does not fall within the purview of word "person" under Section 29-A(3) of the Act. According to the Tribunal under, Section 29-A(3) of the Act only the consumer is person, who can claim the refund.
3. Learned Counsel for the dealer submitted that the view of Tribunal is erroneous. He submitted that Section 29-A(3) provides refund of the excess amount to the person from whom the dealer had actually realised the excess amount. He submitted that the applicant was the person from whom the excess amount had been realized by M/S Ideal Distributor, Agra, for which, there is no dispute, therefore, in view of Section 29-A(3) it was legally entitled for the refund of the amount. He submitted that the reasons given by the Tribunal for refusing the refund is an extraneous consideration which can not be made basis, inasmuch as, the provision does not say so. Learned Standing Counsel supported the order of the Tribunal.
4. Heard learned counsel for the parties.
5. In my view order of the Tribunal is erroneous and is not sustainable
6. I have perused the order of Tribunal and the authorities below.
7. Section 29-A(3) of the Act reads as follows:-
Section 29-A(1), (2) and (3) reads as follows -
Section 29-A Procedure for disbursement of amount wrongly realised by deafer as tax-
(1) Where any amount is realised from any person by any dealer, purporting to do so by way of realisation of tax on the sale or purchase of any goods, in contravention of the provisions of Sub-section (2) of Section 8-A, such dealer shall deposit the entire amount so realised in such manner and within such period, as may be prescribed.
(2) Any amount deposited by any deposited by any dealer under Sub-section (1) shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives, and the deposit shall discharge such dealer of the liability in respect thereof to the extent of the deposit.
(3) Where any amount is deposited by any dealer under Sub-section (1), such amount or any part thereof shall, on a claim being made In (hat behalf be refunded, in the manner prescribed, to the person from whom such dealer had actually realised such amount or part, or to his legal representatives, and to no other person.
Provided that no such claim shall be entertained after the expiry of three years from the date of the order of assessment or one year from any date of the final order on appeal revision or reference, if any, in respect thereof, whichever is later.
Explanation- The expression "final order on appeal, revision or reference," includes an order passed by the Supreme Court under Article 32, Article 132, Article 133, Article 136 or Article 137 or by the High Court under Article 226 or Article 227 of the Constitution.
8. Under Article 265 of the Constitution of India, no tax can be levied and collected without authority of law Assessing Authority cannot collect the amount which is not legally due. Section 29-A(2) provides that any amount deposited by any dealer under Sub-section (1) shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives. Section 29-A(3) says that where any amount is deposited by, any. dealer in Sub-section (1), such amount or any part thereof shall, on a claim being made in that behalf be refunded, in the manner prescribed, to the person from whom such dealer had actually realised such amount, therefore, in view of Section 29-A(2), State Government can retain the amount in trust for the person from whom, it was realised till claimed by such person. Under Section 29-A(3), amount has to be refunded to the person from whom, the amount has been realised. In the present case, applicant claimed refund on the ground that the amount which had been deposited by M/S Ideal Distributor, Agra, in excess amount of tax due was realised by it and therefore, it should be refunded under Section 29-A(3). Fact of realisation of tax, which had claimed to be refunded, is not in dispute. Once it is not disputed that the excess tax was realised from the applicant there is no reason to deny the refund under Section 29-A(3). Section 29-A(3) does not require any further investigation and has not provided any other consideration to be seen for the refund of the amount. Therefore, Tribunal has illegally denied the refund on the ground that the applicant is a dealer and dealer does not come within the purview of person. Person is not defined in the section. It. can not confine to customer only. Any person from whom tax has been released is the person. It may be dealer or consumer. Thus, appears to be no reason to give a restriction, meaning to the word "person".
9. In the result, both the revisions are allowed and the matter is remanded back to the Tribunal to adjudicate the claim of the applicant in accordance to the law considering the applicant as person under Section 29-A(3)of the Act.