Decided on September 29,1972



KONDAIAH,J. - (1.) THE assessee-petitioner, a dealer in paddy and rice at Kovvur in Nellore District, filed for the year 1958-59 annual return in form A-1 on 20th November, 1959, disclosing a gross and net taxable turnover of Rs. 1,71,699-14-0 and Rs. 90,697-8-0 respectively. The Assistant Commercial Tax Officer-cum-Deputy Commercial Tax Officer, Kovvur, who passed the assessment order on 31st March, 1960, determined the net taxable turnover at Rs. 1,19,051-7-0. Aggrieved by the inclusion of a turnover of Rs. 24,822-5-9 comprising of three items of Rs. 10,947-5-9, Rs. 12,600-0-0 and Rs. 1,275-0-0, the assessee preferred an appeal in respect of the aforesaid disputed turnover. The Deputy Commissioner by his order dated 8th September, 1960, dismissed the appeal with regard to the first two items and remanded the matter in so far as the third item is concerned to the assessing authority for fresh disposal after verification. On further appeal by the assessee to the Sales Tax Appellate Tribunal in respect of the inclusion of the first two items in the total turnover, the Tribunal by its order dated 27th May, 1961, remanded the matter to the first appellate authority to dispose of the matter afresh after affording an opportunity to the dealer-assessee to cross-examine the ryot in so far as the purchase of paddy for S. 12,600-0-0 and to prove that he was a second dealer in respect of the turnover of Rs. 10,947-5-6. The first appellate authority in its turn, by its order dated 8th December, 1963, remanded the case to the assessing authority with a direction to examine afresh both the items of dispute on the lines directed by the Tribunal and make the fresh assessment that may be called for in respect of the two disputed additions by 15th February, 1964. The Commercial Tax Officer passed the revised orders of final assessment on 9th May, 1967, determining the total taxable turnover at Rs. 1,19,051-7-0. The assessee thereupon preferred an appeal to the Assistant Commissioner, Commercial Taxes, Nellore, questioning the validity of the inclusion of the turnover of Rs. 23,547-5-9. The appellate authority by its order dated 10th December, 1967, allowed the appeal in respect of the disputed turnover observing as follows : "the assessment for the year 1958-59 normally got barred by 1st April, 1963. By extending time by one year and two months any order based on the assessment beyond 31st May, 1964, gets barred by time. Hence, the assessment in respect of the disputed turnover of Rs. 23,547-5-9 being the subject-matter of remand by the Tribunal and the first appellate authority, having been made beyond the period of limitation has to be cancelled. " The assessee once again preferred an appeal to the Sales Tax Appellate Tribunal questioning the validity of the entire revised order of final assessment redetermining the turnover at Rs. 1,91,051-7-0 passed by the Deputy Commercial Tax Officer on 9th May, 1967, as barred by limitation. Rejecting the contention of the assessee that when once the assessment in respect of Rs. 23,547-5-9 which forms part of the total redetermined turnover of Rs. 1,19,051-7-0 is barred by limitation the entire assessment is liable to be set aside as the period of limitation applies to the entire but not to a portion or part of the order, the Tribunal held that the assessment on the turnover of Rs. 94,229-1-3, which was not the subject-matter of the appeals was valid but not barred by limitation. Hence this tax revision case.
(2.) SRI Dasaratharama Reddy, the learned counsel for the petitioner-assessee, raised before us the following contentions : (1) That sales tax like income-tax is one integrated whole though turnover may be split up for purposes of computation and hence a part or portion of assessment cannot be in time if the other part or portion is found to be out of time; (2) that when the appellate order modifies the assessment order, the assessment order is superseded by the appellate order and fresh assessment has to be made and, consequentially, a fresh demand for tax has to be raised. But, however, when the appeal is dismissed no fresh demand need be issued as the entire assessment is kept in order; and (3) that the assessee is entitled to refund of the tax paid by him provisionally or on admitted turnover if the assessment is not made in time or no demand is raised. This claim of the assessee is resisted by Mr. Mahadev appearing on behalf of the sales tax department, contending inter alia that the doctrine of merger has no application to the present case, that liability accrued the moment the sales have taken place though not quantified and the dealer is not entitled for refund of any tax paid on admitted turnover, even if the assessment is barred by limitation. According to the respondent, the subject-matter of the appeals is related to the disputed items of turnover only and the assessee is not entitled to claim refund of tax paid by him in respect of the admitted turnover or the turnover in respect of which no appeal had been preferred by him. Upon the facts and the respective contentions of the parties, the following question arises for decision : " Whether, on the facts and in the circumstances, the assessee is entitled to claim refund of the sales tax paid by him in respect of the turnover of Rs. 94,229-1-3, which was either admitted or not appealed against ?"
(3.) IN order to appreciate the scope of the respective contentions, it is profitable and necessary to briefly refer to the scheme of the Act relating to accrual of liability to pay tax and assessment and refund of tax. Sections 5, 5 (a), 6 and 7 of the Act are the charging sections whereunder every dealer is liable to pay sales tax at the rate or rates specified therein or the Rules made thereunder in respect of taxable sales or purchases as the case may be. Section 13 makes it obligatory on every dealer who is liable to pay tax under the Act to submit a return of his turnover in such manner and within the period prescribed by the concerned authority. Section 14 provides for assessment of tax. The assessing authority shall assess the amount of tax payable by the dealer on the basis of any return submitted by him if he is satisfied that it is correct and complete. But if the return appears to him to be incorrect or incomplete, he shall after affording reasonable opportunity to the dealer and after making such enquiry as he deems necessary assess to the best of his judgment the amount of tax due from him. An assessment under this section shall be made within a period of four years from the expiry of the assessment year. Any dealer aggrieved by any order of assessment may prefer an appeal as provided under section 19. The appeal shall be in the prescribed form and on payment of a fee calculated at the rate of 1 per cent of the tax under dispute subject to a maximum of Rs. 50. The appellant authority is empowered to confirm, reduce, enhance or annual the assessment or set aside the assessment and direct the assessing authority to pass a fresh order after such enquiry as may be directed or pass such other orders as it may think fit. Section 20 provides for a revision to the Board of Revenue and other prescribed authorities. Section 21 provides for an appeal to the Appellate Tribunal which is the final fact-finding authority. A tax revision to the High Court is provided under section 22 on any question of law. Section 33 enjoins a duty on the assessing or licensing authority to refund any excess tax or licence fee paid provisionally by a dealer for any particular period. The assessee-dealer has to claim refund in the prescribed form within three years from the date on which the tax or licence fee was ordered to be refunded. Otherwise his claim for refund shall be rejected as time-barred (see section 33-A ). Section 33-B provides for refund of the excess tax if the dealer is entitled as per the orders passed on appeal or revision. Section 33-C empowers the assessing authority to withhold refunds in case specified therein. Section 33-D prohibits the assessee from questioning the correctness of any assessment or other matter decided, which has become final and conclusive, or seeking a review in respect thereof. The latter part of that section makes it a abundantly clear that the assessee is not entitled to any relief except the refund of tax or licence fee wrongly paid in excess. This in short is the scheme of the Act pertaining to the levy, ascertainment and refund of tax.;

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