- (1.) HEARD learned counsel for the parties.
(2.) THE petitioner claiming itself to be entitled to the benefit under Government of Bihar order dated 22nd December, 1995 issued vide S.O. Nos. 478 and 479 of Tax Exemption under Bihar Sales Tax Act, preferred writ petition before this Court and the said writ petition of the petitioner ultimately decided by the Division Bench of this Court in W.P.(T) No. 2587 of 2003 vide order dated 31st July, 2003 holding therein, that the petitioner was entitled to tax exemption under S.O. Nos. 478 and 479. However, during challenge to action of the respondents denying exemption to the petitioner from the said tax, amount of Rs.54.5 Crores were recovered from the petitioner and it is admitted fact that said amount was paid by the petitioner from its own pocket and had not been charged from the customers so as to pass on the said tax liability upon the customers. Vide judgment dated 31st July,2003 delivered in W.P.(T) No.2587 of 2003, this Court after allowing the writ petition and quashing the order passed by the Joint Commissioner of Commercial Taxes, directed to refund the amount of Rs.54.5 Crores to the petitioner -Company and authorities of the Commercial Taxes Department under the Bihar Finance Act were directed to adjust the refundable amount towards future tax liability of the Sales Tax of the petitioner, M/s Tata Cummins Ltd. i.e. for the accounting year commencing from 1st April,2004. It appears from para -26 of the judgment referred above that the said adjustment was sought by the petitioner itself and the request of the petitioner's counsel has been recorded in para -26 of the judgment dated st July,1993, showing its willingness to have adjustment of the said amount against the future tax liability of the petitioner. The said judgment passed by the Division Bench of this Court dated 31st July,2003 was challenged by the State by preferring Civil Appeal No.10272 of 2003 before the Hon'ble Supreme Court . The Hon'ble Supreme Court vide its interim order dated 26th March, 2004 directed that only amount of Rs.40.00 Crores shall be adjusted against the future tax liability of the petitioner for the accounting year commencing from 1st April,2004 and the balance amount shall be refunded to the petitioner. The balance amount of Rs.14.5 Crores have been refunded to the petitioner and, therefore, Rs.40.00 Crores remained with the Revenue for adjustment against the petitioner's future tax liability for the accounting year commencing from 1st April,2004.
(3.) THE petitioner when claimed adjustment of the above amount of Rs.40.00 Crores against the State Sales Tax liability as well as the Central Sales Tax liability, the Revenue authorities denied the adjustment, sought against the Central Sales Tax whereas allowed the adjustment of Rs.14,65,20,147/ -against the State Sales Tax liability out of 40.00 crores rupees for the accounting year commencing from 1st April,2004. The rest of the amount is still lying with the State authorities for adjustment. The reason given for its disallowance by the Assessing authority in the order dated July,2008 ; by the Appellate authority in the order dated 17th July,2009 and by the Tribunal in the order dated 16th March,2011 is that since the petitioner's claim for exemption under the Notification S.O. Nos.478 and 479 was pertaining to the tax exemption under the Bihar Sales Tax Act, therefore, any amount which is declared refundable to the petitioner under provisions of the State Sales Act could have been adjusted only against the State Sales Tax and not against the Central Sales Tax. ;