Case Note & Summary
The dispute arose under the C.P. and Berar Sales Tax Act, 1947. The respondent, Haji Hasan Dada, a dealer in yam, was assessed to sales tax on his turnover by the Assistant Commissioner of Sales Tax, Nagpur Region, by order dated April 17, 1952. He paid the tax on July 8, 1952. Later, the Board of Revenue ruled that dyeing charges were not taxable under the Act. Relying on that ruling, the respondent applied on November 20, 1952 under Section 13 of the Act (as it stood before its amendment in 1953) for refund of a part of the tax, claiming that the amount represented dyeing charges. The Assistant Commissioner rejected the application. In revision, the Board of Revenue directed that the claim for refund be examined on merits. At the instance of the State, the Board referred to the High Court the question whether there was any bar to the examination on merits of the claim for refund under Section 13 as originally enacted. The Bombay High Court (Nagpur Bench) held that there was no bar. The State appealed to the Supreme Court by special leave. The respondent did not appear. The Supreme Court, per Shah J., held that the Assistant Commissioner had no power of review under the Act. Although he was competent to decide all questions within his jurisdiction, his orders could only be set aside in appeal or modified in revision. So long as the assessment order stood, the dealer could not call upon the same officer to ignore it and grant a refund contrary to its terms. The Court applied the principle from Commissioner of Income-tax v. Tribune Trust. It concluded that the refund application was not maintainable under the unamended Section 13. The appeal was allowed and the High Court's judgment set aside.
Headnote
A) Tax Law - Sales Tax - Refund and Review - C.P. and Berar Sales Tax Act, 1947, Section 13 - The Assistant Commissioner had no power to review his own assessment under the unamended Act; a dealer cannot compel the authority to ignore a final assessment and grant a refund. Held, the refund application was not maintainable.
Issue of Consideration
Whether a claim for refund under Section 13 of the C.P. and Berar Sales Tax Act, 1947 (as originally enacted) can be entertained on merits when the assessment order has not been set aside or modified
Final Decision
Appeal allowed; High Court judgment set aside; held that refund application under Section 13 as originally enacted was not maintainable as the Assistant Commissioner had no power to review his own assessment order.
Law Points
- finality of assessment orders
- no inherent power of review
- refund not maintainable where assessment order stands
- statutory remedies of appeal and revision are exclusive
