1 jpc IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SALES TAX REFERENCE NO. 18 OF 2006 M/s Themis Chemicals Ltd. .. Petitioner Versus State of Maharashtra and others .. Respondents Mr. C. B Thakar for the Applicant Mr. V. A. Sonpal, A panel counsel for the Respondents ‘ ’ CORAM: V. C. DAGA & S. J. KATHAWALLA, JJ. DATED: 13th August, 2010 P. C.: 1. Heard learned counsel for the applicant and the learned counsel appearing for the Revenue. Perused appeal. 2. The Tribunal has referred the following substantial question of law for the opinion of this Court. Whether on facts and circumstances of the case, the Tribunal “ was justified in upholding forfeiture ?” 3. The Tribunal has also forwarded the statement of facts. It is not necessary to reproduce the same in extenso. Suffice it to say that the tax collected by the Assessee was refunded to its customer much before the order of assessment is passed but after expiry of period of two years from the date of collection. 2 4. In the above fact and situation, the Tribunal has held that the Assessing Officer was justified in forfeiting the amount of tax collected by the Assessee from its customers in spite of the fact that the amount of tax was refunded by the Assessee to the customer after a period of two years since tax was not leviable. 5. Mr. Thakkar relying on the Judgment of the Apex Court in the case of Joshi Sales Tax Officer Vs. Ajit Mills, 1977 (40) STR 497 (SC) submits that it was open for the Assessee to refund the amount of tax, which was collected under mistake of law. As such it could not have been forfeited by the Assessing Officer and that the forfeiture could not have been confirmed by the Tribunal. 6. On being asked, Mr. Sonpal tried to justify the order of forfeiture. He could not take his submission to the logical end. 7. Having heard rival contentions, needless to mention that tax was recovered by the Assessee under mistake of law. There is no prohibition to refund the amount to the customer once mistaken collection of tax is noticed. At the same time there is no time limit prescribed for refunding amount of tax erroneously collected. Once the amount of tax erroneously collected is refunded to the customer; then there cannot be a forfeiture of the amount of tax which is 3 already refunded. Under the circumstances, the order of the Tribunal cannot be justified. 8. In the result, the question referred is answered in the negative i.e. in favour of the Assessee and against the Revenue. 9. The reference stands disposed of in terms of this order. No order as to costs. ( S. J. KATHAWALLA, J.) (V. C. DAGA, J.)