Rajes Kumar, J. - (1.) Present revision under Section 11 of U.P. Trade Tax Act hereinafter referred to as "Act")is directed against the order of Tribunal dated 09.12.2005 for the assessment year 1997-98.
(2.) Following two questions have been raised in the present revision: 1. Whether, on the facts in the circumstances of the case, the applicant was entitled to refund of a sum of Rs. 26,40,470/- paid excess of tax due in view of the provisions of Section 29(1) of the U.P. Trade Tax Act read with Rule 71 of U.P. Trade Tax Rules as also the judgment of this Hon'ble Court in the case of Hind Lamps Ltd. v. State of U.P 2004-UPTC-80? 2. Whether, on the facts and in the circumstances of the case, the applicant was also entitled to interest (a) 12% as provided for Under Section 29(2) of the Act w.e.f 9.3.05 i.e. date on which order of the First Appellate Authority was received by the assessing authority, setting aside the assessment order?
(3.) Brief facts of the case are that applicant is a Private Limited Company, incorporated under the Indian Companies Act, 1956. It is alleged that it did not carry on any business of buying and selling inside the Stale of U.P. and is not a dealer under U.P. Trade Tax Act, It is alleged that the applicant entered into a contract on 18.05.1996 with Escotel Mobile Communications Limited. The aforesaid contract provided for import of equipment and accessories, installation and supervision of equipments installed, of all the hardware, software for G.S.M. Networking of mobile phone on turn-key basis iii accordance with functional specifications set out in the aforesaid contract in certain parts of India including Western U.P. Applicant accordingly, imported certain goods such as Cables, Handles, Terminal Wave Guards, Rounding Kits accessories thereof etc on Form-31 supplied by Escotel, which were stored at Godowns situated at Sahibabad (Ghaziabad) Assessing authority passed the assessment order on 31.03.2000 for the assessment year 1997-98 and a sum of Rs. 26,40,470/- was levied towards tax. Applicant did not admit any liability of tax in as much he claimed to has not carried on any business of buying and selling within the State of U.P. Applicant filed appeal before the Joint Commissioner (Appeals). Joint Commissioner (Appeals) vide order dated 17.02.2005 allowed the appeal and remanded back the matter to the assessing authority. It is alleged that the said appellate order was received by the assessing authority on 09.03.2005. In the meanwhile, the entire amount of Rs. 26,40,470/was realised by coercive method. After the appellate order being passed and the appeal being allowed, applicant asked the assessing authority to refund the amount, which has been recovered by adopting the coercive method. In support of the contention he relied upon the decision of this Court in the case Hind Lamps Limited, Firozabad v. CST, reported in 2004 UPTC, 80, wherein it has been held that as soon as the order of assessment is set aside, amount deposited by the dealer over and above admitted tax liability is refundable to the dealer on the principal of restitution. The aforesaid refund application had been rejected by the assessing authority vide order dated 14.06.2005 Appeal filed by the applicant against the said order has also been rejected by the Joint Commissioner (Appeals) vide order dated 16.09.2005 Applicant filed second appeal before the Tribunal Tribunal by the impugned order rejected the appeal and refused to allow the refund.;