Gauhati High Court
Hanuman Prasad Sharma vs State Of Assam And Ors. on 2 September, 2003
Equivalent citations: [2006]143STC34(GAUHATI)
JUDGMENT P.G. Agarwal, J.
1. Heard Dr. Ashok K. Saraf, learned Counsel for the petitioner and Mr. Mahanta, learned Additional Senior Government Advocate.
2. The petitioner is a dealer in food articles, registered dealer under the Assam Finance (Sales Tax) Act, 1956.
3. Pulse and Mustard Oil were made taxable by an amendment of Assam Finance (Sales Tax) Act, 1956 with effect from July 30, 1992 but such tax was withdrawn from the same date by Assam Ordinance III of 1993 dated June 28, 1993. The petitioner submitted his return for the period ending September 30, 1992, March 31, 1993 and June 30, 1993. The petitioner deposited tax on these two items, i.e., mustard oil and pulse. The petitioner, now, therefore, filed a prayer for refunding the tax deposited by him. The petitioner, subsequently filed revision before the Commissioner of Taxes, Assam, Guwahati, and the revisionary authority held that no tax was leviable on the said items and directed the Superintendent of Taxes to revise the order showing pulses and mustard oil as non-taxable. However, the revisionary authority rejected the prayer for refund of the money, stating that although, items were non-taxable, the petitioner has deposited the tax, same cannot be refunded now and may be taken as forfeited to Government. The impugned order was passed on August 6, 1997.
4. The learned Counsel for the petitioner has submitted that he has no grievance as regards the non-taxability, but the proceeding for forfeiture is an independent proceeding to be initiated by the assessing officer under Section 65A of the Assam General Sales Tax Act, 1993. The petitioner further submits that he did not collect any tax from customers but to avoid legal complicacy, he paid due taxes to the Government. The learned Counsel for the petitioner has submitted that the same authority, i.e., Additional Commissioner of Taxes, in another case of Sreeram Bhandar, Silchar, dated June 20, 1997 had taken a different view, although the question involved was identical. A copy of the order passed on June 20, 1997 has been filed as annexure III and we find that the Additional Commissioner of Taxes had set aside the order of assessment and directed the Superintendent of Tax to initiate fresh assessment proceeding by examining petitioner's books of account to see :
1. Whether tax was explicitly collected on sale of pulses and mustard oil from customers or not,
2. Whether there was ledger entry for collections of such tax or not, and
3. If the petitioner paid such taxes from his own amount, whether profit and loss accounts supported that or not.
If no tax was found to be collected from customers excess amount paid would be refundable to the petitioner and if tax was collected from customers it could be forfeited by drawing a separate proceedings.
5. In the impugned judgment, the authority has referred to the decision of this Court in the case of Hitendra Nath Goswami v. State of Assam [1994] 92 STC 23.
6. Upon hearing the learned Counsel for both sides and upon perusal of the materials on record, this writ petition is disposed of with a direction to the respondent, i.e., Additional Commissioner of Taxes, Assam and Superintendent of Taxes, Silchar, to consider the petitioner's case in the light of the order dated June 20, 1997. The assessing authority shall pass necessary order in accordance with rules and regulations within a period of two months.