ASHWANI KUMAR MISHRA,J. - (1.) Dispute in this revision relates to levy of demand of tax for the period from October to December, 2008. The revisionist herein is engaged in the activity of selling Diesel Engine Pump Sets of less than 10 horse power, and is duly registered under the provisions of the Act. It appears that a circular was issued by the State of Uttar Pradesh on 5.9.2012, whereby realization of tax above 4% together with interest was granted remission provided such amount has not been realized by the seller from its consumers. The circular dated 5.9.2012 reads as under:- ...[VARNACULAR TEXT OMITTED]...
(2.) Revisionist contends that it has not realized any tax from its consumers and had deposited the amount of tax under protest. Subsequently, an application was made to refund this amount, which has been rejected by the assessing authority primarily on the ground that there is no provision in the circular for any refund of tax already realized. This finding has been affirmed in first appeal as well as by the tribunal.
(3.) Learned counsel for the revisionist contends that revisionist is a sincere tax payer and has complied with the requirement of law, on account of which it is being discriminated, inasmuch as such assessees who have deposited similar tax are entitled to benefit of remission, but such relief has been denied to the revisionist. Learned counsel has invited attention of the Court to a judgment rendered in Anand Gramodyog Samiti v. Commissioner Trade Tax, 2005 UPTC 741. Para 16 and 18 of the judgment reads as under:- "16. The said argument is misconceived and cannot be accepted for the simple reason that India is a welfare State. A person who has deposited tax out of his own pocket cannot be permitted to be placed in a disadvantageous position than those who have deposited tax at all. All the three authorities have concurrently found that the dealer applicant has deposited the tax from its own pocket and did realize the same from the customers. If the argument of learned Standing Counsel is accepted that under Circular there is no provision for remission of tax, fee penalty if levied, but since there is no specific provision for refund of tax, no refund of tax can be ordered even if tax was deposited by the dealer out of his own pocket, would lead to absurd situation. Keeping in mind the object of the Circular and the factual background for which it was issued, it is implied that the persons who have paid tax etc. if already levied, tax etc. shall be realized and if already paid by a person without passing on the burden to the customer, the same shall be refunded to the dealer. This view, which I am taking is only reasonable but is also within the Constitutional Scheme that India is a Welfare State. The provision for refund of fix on the facts of the present case is very much implicit and can be read in the Circular otherwise it would amount to denial of justice to the dealer. Very recently the Hon'ble Supreme Court in the case of B.P. Achla Anand v. S.A. Reddy See has observed that unusual facts and situation posing the issue for resolution is an opportunity for innovation of law. It has observed that the law, as administered by Courts'/transforms into justice. It has quoted the definition of justice mentioned in Justin man's Copus Jurist Civil is (adopted from the Roman Jurist Ulpain) states "justice in constant and perpetual will to render to every one that to which he is entitled". Similarly Ciero described" justice as the deposition of the human mind to render everyone] his due". The law does remain static. It does operate In ah vacuum. As social norms and values change laws too have to be interpreted and recast. Law is really a dynamic instrument fashioned by society for the purposes of achieving hormonies adjustment, human relations by elimination of social tensions and conflicts. Lord Dening once said " Law does stand still; it moves continuously once this is recognised then the task of a Judge is put on a higher plain. He must consciously seek to mould the law so as to serve the needs of time.". 18. The argument of the learned Standing counsel that there being no provision for refund of tax in the Circular, therefore, no refund can be granted, is liable to be rejected on another ground. As stated, in the earlier part of judgment that the aforesaid Circular was issued on the representation made by such persons who had deposited tax. On this basis the Government granted remission from deposit of tax. The observation made above by me should be misconstrued, therefore by way of clarification it is mentioned that a persons who has realized tax and deposited the same will be entitled for refund under the aforesaid Circular. To put it differently only such person and who have realized tax but deposited it out of their own resources, will be entitled for refund of tax.";