Balwant Singh and Sons and Others vs Assistant Commissioner (Assessment)-6, Trade Tax and Another

Heard counsel for the parties.

This petition is filed for quashing impugned orders dated March 14, 1995, annexure 4 to the writ petition, refusing to entertain the refund applications made by petitioners.

Brief facts are that for the assessment years 1986-87 and 1987-88, the petitioners purchased chocolate from M/s. Hindustan Coka Products Limited, Ghaziabad, which was subsequently renamed as Cadbury India Limited. There was come confusion about the rate of tax. The belief was that the rate of tax was 8.8 per cent and at that rate the tax was realised by Cadbury India Ltd., from the petitioners and the same had been deposited with the department. When the assessment was completed on M/s. Hindustan Coka Products Ltd.--predecessor of Cadbury India Ltd.--sales tax in the assessment was levied at the rate of 8.8 per cent. The dispute was carried in appeal and then the rate of tax was reduced to 5.5 per cent from 8.8 per cent. This is how the petitioners-purchasing dealers became entitled to refund u/s 29-A(3) of the U.P. Trade Tax Act (briefly, "the Act").

Thereafter the petitioners made applications for refund of tax. By impugned orders the Assistant Commissioner (Assessment)--respondent No. 1 refused to entertain the refund applications on the ground of being barred by limitation. The assessing authority took such view strictly construing the proviso to Section 29-A of the Act, which provides 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.

The case of the petitioners is that order of the Tribunal dated November 11, 1993 was despatched from the office of the Tribunal on November 15, 1993 and that was served upon M/s. Hindustan Coka Products Ltd., on November 22, 1993. In para 11 of the writ petition, it is stated that M/s. Hindustan Coka Products Ltd., informed the petitioners about the order of the Tribunal in the month of October, 1994 and then the petitioners immediately took steps for refund on November 15, 1994 by making applications. The contention of the petitioners is that refund applications have been made by them almost within one month from the date of knowledge of the order. It is, therefore, contended by the petitioners that period of limitation in their case should be reckoned from the date of knowledge and not from the date of the order of the Tribunal. On the other hand, the contention of the respondents is that period of limitation of one year as prescribed in the proviso is inflexible.

The question for consideration is whether period of limitation as provided by proviso to Section 29-A will be reckoned from the date of knowledge of the Tribunal''s order on the part of the petitioners or from the date of the order of the Tribunal. This proposition is not res integra, inasmuch as similar question came up for consideration in the case o Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, and then the Supreme Court enunciated as follows :

"Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by the Collector u/s 12 of the Land Acquisition Act, 1894, either actual or constructive is an essential requirement of fairplay and natural justice."

Following the aforesaid principle, enunciated by the Supreme Court, we agree with the contention of the petitioners that limitation should be reckoned from the date of the knowledge of the order of the Tribunal. The relevant facts about the date of the order of the Tribunal and date when the order of the Tribunal was communicated to the petitioners, as stated in the petition, have not been denied in the counter-affidavit and, therefore, the averment that the order of the Tribunal was communicated to the petitioners in the month of October, 1994, remains uncontroverted. We, therefore, hold that limitation in the case of the petitioner will run from October, 1994, when they acquired knowledge of the Tribunal''s order.

On these facts, the petition succeeds and is allowed ; impugned orders, annexure 4 to the writ petition passed by respondent No. 1 are quashed and the said respondent is directed to entertain the refund applications of the petitioners and decide them on merits in accordance with law.