JUDGMENT N.D. Ojha, J.
1. Proceedings for recovery of Rs. 1,17,319.67 as sales tax dues including interest, etc., thereon were initiated against the petitioner and a notice dated 20th September, 1984, in this behalf was served on him. A copy of this notice has been attached as annexure 1 to the writ petition. The prayer contained in this writ petition is for quashing of the said notice and for issue of a writ of mandamus directing the respondents to decide the petitioner's claim for refund and interest thereon. The case of the petitioner is that the amount claimed in the impugned notice is erroneous and further that if the amount which the petitioner is entitled to by way of refund is adjusted, it is the petitioner who will be entitled to get some amount and nothing will be payable by it towards the tax liability mentioned in the impugned notice. Counter and rejoinder affidavits have, been filed. All the respondents are represented by the Standing Counsel and there is no private party to be served with the notice of the writ petition. On the facts of the instant case we are satisfied that it is a fit case where the writ petition may be finally disposed of at this very stage as contemplated by the second proviso to Rule 2 of Chapter XXII of the Rules of Court. We have accordingly heard counsel for the parties on the merits of the writ petition.
2. At this place, however, we wish to make it clear that the petitioner cannot claim as of right that proceedings for recovery of amount of tax may remain stayed till the application or applications made by it for refund of some amount are finally decided. Payment of tax due and refund of amounts paid in excess constitute two different proceedings. One cannot be made dependant on the other unless recourse to this step is justified either by any provision in the U. P. Sales Tax Act (hereinafter referred to as the Act) or the rules framed there under. Section 29 of the Act deals with refund and adjustment to the extent permitted by Section 29 can certainly be claimed. Section 29, however, has a limited application as is apparent from the provisions contained therein. That section apparently does not contemplate that if any amount is payable to an assessee by way of refund proceedings for recovery of tax under the Act shall be stayed or shall not take place till the amount is refunded or adjusted. The consequences for refund not being made in accordance with Sub-section (1) of Section 29 of the Act are provided for in Sub-section (2) thereof.
3. In the instant case even proceeding on the legal principle enunciated above we are of the opinion that recovery proceedings have to be quashed. In the counter-affidavit it has been reiterated that the amount mentioned in the impugned notice (annexure 1 to the writ petition) is payable by the petitioner. Annexure CA 1 to the counter-affidavit gives the details of the amounts payable by the petitioner. For the assessment year 1971-72 it has been shown at serial Nos. 1 and 2 that a sum of Rs. 4,130.47 was payable as State sales tax and Rs. 976.00 as Central sales tax. Along with the rejoinder affidavit copy of a letter dated 7th March, 1980, by the Sales Tax Officer, Khand 2, Chandausi, addressed to the Deputy Collector (Collection), Sales Tax, Moradabad, has been attached as annexure RA 2 which indicates that as a result of the appellate order dated 14th April, 1978, no amount towards State sales tax was payable by the petitioner for this assessment year. CA 1 at serial No. 3 states that a sum of Rs. 5,087.05 was payable by the petitioner towards State sales tax for the assessment year 1972-73. Annexure RA 4 to the rejoinder affidavit is copy of another letter dated 7th March, 1980, by the same Sales Tax Officer to the Deputy Collector (Collection), Sales Tax, Moradabad, which indicates that for the said year a sum of Rs. 209.75 only was payable by the petitioner. Copies of similar other letters have been filed as annexures RA 5 and RA 6 which indicates that the amount payable by the petitioner for the year 1973-74 as sales tax, State as well as Central, as shown in annexure CA to the counter-affidavit are not accurate. Once it is demonstrated that the aforesaid amounts as shown in the impugned notice are not correct proceedings for recovery of the amounts mentioned in the impugned notice cannot obviously be permitted to continue. In our opinion the petitioner has succeeded in making out a case for quashing the impugned notice and for a direction being issued to the respondents not to proceed to recover the amounts mentioned in the impugned notice till the correct amounts payable by the petitioner have been ascertained by the officer concerned. Since applications made by the petitioner for refund are also pending we are of the opinion that while determining the amount payable by the petitioner in pursuance of this order it would be appropriate in the ends of justice that pending applications for refund made by the petitioner may also be simultaneously disposed of.
4. In the result the writ petition succeeds and is allowed to this extent that the proceedings for recovery on the basis of the impugned notice (annexure 1 to the writ petition) are quashed and the respondents are directed to redetermine the amount payable by the petitioner in the light of the observations made above and to proceed to recover such amount only which is found payable by the petitioner on a redetermination made in the manner stated above. In the circumstances of the case, however, there shall be no order as to costs.