M.C.Agarwal, J. - (1.) This revision petition under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") is directed against an order dated February 26, 1998 passed by the Trade Tax Tribunal, Meerut whereby it partly allowed the dealer's appeal.
(2.) I have heard Sri Bharat Ji Agrawal, Senior Advocate for the revisionist and Sri Surya Prakash, learned Standing Counsel for the respondent.
(3.) The dispute in this revision petition relates to the revisionist's claim of a refund of Rs. 13,23,069.54 in respect of sales tax on alcohol (Rs, 4,65,652.26) and on export pass fee (Rs. 8,57,417.28). The admitted facts are that the aforesaid amounts were realised as sales tax by the dealer though no tax was leviable. The dealer after realising the aforesaid amounts deposited the same as tax under the U.P. Sales Tax Act, 1948 (now U.P. Trade Tax Act). Later on realising that no tax was leviable on the aforesaid commodities it issued credit notes in favour of the buyers and in that manner refunded the amounts to the persons from whom it was charged. It, therefore, claimed a refund of the aforesaid amounts from the assessing officer who rejected the dealer's claim by virtue of the provisions of Section 29-A of the Act. The assessing officer observed that the dealer had no right to itself allow an adjustment of the aforesaid amounts and, therefore, the amounts cannot be refunded to the dealer. The revisionist preferred an appeal to the Deputy Commissioner (Appeals) but the same was dismissed and a second appeal before the Tribunal has also failed. Section 29-A of the Act reads as under : "29-A. Procedure for disbursement of amount wrongly realised by dealer as tax.--(1) Where any amount is realised from any person by any dealer, purporting to do so by way of realisation of tax on the sale or purchase of any goods, in contravention of the provisions of Sub-section (2) of Section 8-A, such dealer shall deposit the entire amount so realised in such manner and within such period as may be prescribed. (2) Any amount deposited by any dealer under Sub-section (1), shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives, and the deposit shall discharge such dealer of the liability in respect thereof to the extent of the deposit. (3) Where any amount is deposited by any dealer under Sub-section (1), such amount or any part thereof shall, on a claim being made in that behalf in such form as may be prescribed, be refunded, in the manner prescribed, to the person from whom such dealer, had actually realised such amount or part, or to his legal representatives, and to no other person : Provided that no such claim shall be entertained after the expiry of three years from the date of the order of assessment or one year from any date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later. Explanation.--The expression 'final order on appeal, revision or reference' includes an order passed by the Supreme Court under Article 42, Article 132, Article 133, Article 136 or Article 137, or by the High Court under Article 226 or Article 227 of the Constitution.";