IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18670 of 2010 ====================================================== M/s Kisan Machinery Stores, through its proprietor Veena Singh wife of Shree Brajendra Kumar Singh, Purani Gurhatti, Saran at Chapra. .... .... Petitioner Versus 1. The State of Bihar. 2. The Commissioner Commercial Taxes, Bihar, Patna. 3. The Deputy Commissioner Commercial Taxes, Saran Circle at Chapra. 4. The Assistant Commissioner Commercial Taxes (in-charge), Saran Circle at Chapra. .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Purnendu Singh, Advocate For the Respondents : Mr. Lalit Kishore, AAG-1 with Mr. Vikash Kumar, A.C. to AAG-1 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA C.A.V. ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 15. 19.08.2011 This Petition under Article 226 of the Constitution is filed by one M/s Kisan Machinery Stores, a proprietory firm, a dealer within the meaning of the Bihar Finance Act, 1981 (hereinafter referred to as “the Finance Act”) to challenge the order dated 31st August 2009 passed by the Deputy Commissioner Commercial Taxes, Saran Circle, Chapra rejecting the claim for refund made by the petitioner and for a direction to the Assistant Patna High Court CWJC No.18670 of 2010 (15) dt.19-08-2011 2 / 5 2 Commissioner Commercial Taxes, Saran Circle, Chapra to refund the amount of Rs.1,97,833/-, the sales tax admittedly paid in excess by the petitioner for the assessment year 2002-03 and for a direction to the respondents to pay interest over the amount of refund. It is not in dispute that under the assessment order made by the Assessing Officer on 3rd February 2005, the petitioner was found to have paid the sales tax of Rs.1,97,833/- in excess for the assessment year 2002-03. On 20th May 2008, the petitioner made application in prescribed form “XX” for refund of the said amount. The said request was rejected by order dated 31st August 2009 on the premise that though the petitioner had received intimation on 13th April 2005, he did not make application for refund within three years therefrom. Therefore, the present Petition. Learned advocate Mr. Purnendu Singh has appeared for the petitioner. He has relied upon the rejoinder affidavit. He has submitted that the notice of excess payment was allegedly served upon one Ashok Kumar on 13th April 2005. The petitioner M/s Kisan Machinery Stores had already merged with M/s Atul Machinery Trading India Pvt. Ltd. (hereinafter referred to as „the Company‟) in 2003. Thus, on 13th April 2005, the petitioner M/s Kisan Machinery Stores was not in existence. The merger was notified to the respondent authorities. In absence of the notice duly served upon the petitioner or its proprietor Smt. Veena Singh, the limitation under Section 42 of the Finance Act would not commence. The specified time of three years was, therefore, did not commence on 13th April 2005. The date of the knowledge of the petitioner was much later. The petitioner had made application Patna High Court CWJC No.18670 of 2010 (15) dt.19-08-2011 3 / 5 3 for refund within three years therefrom. The rejection of the claim for refund is, therefore, illegal. Mr. Purnendu Singh has relied upon Rule 19 of the Bihar Sales Tax Rules, 1983. He has submitted that the said Rule 19 provides for manner in which the notice shall be issued and served upon the dealer. It says that the notice shall be served upon the person proceeded against. It was, therefore, incumbent upon the respondent authorities to serve a notice upon the aforesaid Smt. Veena Singh, the proprietor of the petitioner M/s Kisan Machinery Stores. He has submitted that the Company claimed adjustment of the excess tax paid by M/s Kisan Machinery Stores for the year 2002-03; that was not allowed; hence, the petitioner had to apply for the refund. Learned Additional Advocate General-1 Mr. Lalit Kishore has appeared for the respondents and has contested the writ petition. Section 42 of the Finance Act empowers the prescribed authority to refund the amount paid by the dealer in excess of the amount finally determined as being payable. The said Section also permits the refund to be made by adjustment of such excess towards the amount payable by the dealer for any other period or by cash payment or by both. Proviso to the said Section 42 provides that no claim for refund shall be entertained unless it is made within three years from the date of service on the dealer of the notice of such excess. In other words, the said proviso provides for a limitation within which the refund can be claimed. The only question that arises in the present petition is whether the petitioner was served with a notice of excess payment on 13th April 2005 as recorded in the impugned order dated 31st Patna High Court CWJC No.18670 of 2010 (15) dt.19-08-2011 4 / 5 4 August 2009 or whether the relevant date would be the date of knowledge as alleged by the petitioner. We are unable to agree with Mr. Purnendu Singh. Let it be noted that though the impugned order dated 31st August 2009 categorically refers to the service of notice on 13th April 2005, the petitioner did not dispute the said statement in the writ petition. Moreover, though it is claimed that the petitioner M/s Kisan Machinery Stores has merged with the Company in the year 2003, the claim for refund was made by the said M/s Kisan Machinery Stores as late in the year 2008 and has filed the present writ petition in the year 2010. Further, the claim of the petitioner that the Company had claimed adjustment of the above referred excess payment of Rs.1,97,833/- presupposes that the petitioner was aware of the refund due. At first, it made attempt to recover the excess amount by adjustment through the Company. Having failed to get the excess amount adjusted by the Company, the petitioner made a belated claim for refund of the amount in cash. This Petition was earlier heard. At that time the learned advocate Mr. Singh relied upon Section 29 of the Limitation Act to claim that the prescribed authority had power to condone the delay and to extend the period of limitation prescribed in proviso to Section 42 of the Finance Act. Thus, it is apparent that the petitioner has resorted to approbate and reprobate. Having conducted the matter once before this Court, the petitioner has changed its line of attack and has tried to make out entirely new case in the rejoinder affidavit. The petitioner is not consistent in its approach. The allegation that the petitioner had not received the notice on 13th April 2005 as recorded in the impugned order is not believable. The submissions made by Mr. Singh, therefore, cannot Patna High Court CWJC No.18670 of 2010 (15) dt.19-08-2011 5 / 5 5 be countenanced. For the aforesaid reason, Petition is dismissed in limine. Parties will bear their own cost. Pawan/- (R.M. Doshit, CJ) Birendra Prasad Verma, J I agree. (Birendra Prasad Verma, J)