IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Review No.264 of 2008 In (TAX CASE 9/1988) Food Corporation Of India Versus Commissioner Of Commercial Tax ---------------------------------- with Civil Review No.265 of 2008 IN (TAX CASE 8/1988) Food Corporation Of India Versus Commissioner Of Commercial Tax ---------------------------------- 11 18.08.2011 The aforesaid two applications have been filed under section 114 of the Code of Civil Procedure for review of the judgment/order dated 30th June, 2008 in Tax Case Nos. 8 of 1988 & 9 of 1988. The above Tax cases by way of reference by the Commercial Tax Tribunal, Bihar, Patna are on the question formulated for answer of the Court. Petitioner is not aggrieved with the answer of this Court with respect to other points formulated, however, is aggrieved with the answer on the question with respect to the obligation to pay taxes was on the dealer i.e. the petitioner. The Court, however, answering the above question made the following observations. “However, we would like to observe that in cases dealer satisfies the assessing officer that in fact the tax 2 has already been paid, it shall consider the matter in accordance with law.” The petitioner got aggrieved by the above observation of the Court asserting that the petitioner is not a dealer, and as such, has no obligation to pay the sales tax for the sale by the fair price shops. The further stand of the petitioner is to the effect that on account of sale effected by the fair price shops the department of Supply and Food, Govt. of Bihar already collected the sale-tax, however, directed to deposit the same in the account of the petitioner. The petitioner, however, submits that the aforesaid amount deposited in the account of the petitioner was against the advance money given to the fair price shop owners, and as such, the same was not by way of tax received by the petitioner. Learned counsel submits that since the petitioner-Corporation did not collect any tax, as such, is not in position to satisfy the assessing authorities with any relevant document that the tax in question has already been paid. Mr. Tej Bahadur Singh, learned Additional Advocate General No. VII appearing for the State, on the other hand, objects the very maintainability of both the above review applications on the ground that 3 the review applications are not maintainable since these review applications have been filed virtually as an appeal to the order under review. It is further submitted that the petitioner, if aggrieved, ought to have filed an appeal on the grounds available in law, and as such, the assertion that the petitioner is not a dealer and not liable to pay tax is not open to review. Learned counsel for the petitioner in course of hearing has made an alternative submission as stated in its written submission as follows : “Since the orders in these two cases have enjoined on the assessing authority to reassess, in case the petitioner furnished evidence of payment of tax by the State Govt. as the record of assessment of State Govt. in the Department of Food & Supply, was also in the same circle, the assessing officer may kindly be directed to consult the said record and, for this purpose may also give a notice to the Food & Supply Department so that the facts may be ascertained and the order be passed accordingly.” Learned Additional Advocate General appearing for the State, however, submits that it is not the case of the State Government that sale-tax is payable twice, and as such, instead of filing review 4 applications petitioner ought to have satisfied the authorities that the tax in question is already collected and deposited by the Supply Department in the relevant account of the Commercial Taxes Department. Mr. S.K.P. Sinha, learned counsel, during course of hearing, however, submitted that the petitioner was basically aggrieved with the observation of the Court whereby it was observed that the petitioner should satisfy with the relevant documents to the assessing officer that in fact the tax has already been paid. It was not possible for the petitioner as the relevant documents were not collected by the petitioner. Accordingly, it was submitted that the aforesaid review applications be treated as an application for modification/clarification of the aforesaid order dated 30th June, 2008 passed in the aforesaid tax cases. Considering the submissions of the parties, it goes without saying that it is nobody’s case that double taxation is permissible. The matter is of verification whether the tax in question has already been collected and deposited in the account of the Commercial Tax Department. In this view of the matter, we are of the 5 opinion that the petitioner should approach the assessing officer in order to explain that the tax in question has already been collected and deposited by the Supply Department in the relevant account of the Commercial Tax Department. It goes without saying that in case petitioner approaches the assessing officer, the grievance be considered in accordance with law after due notice to the Department of Supply, Government of Bihar and on verification of the relevant records available with the Commercial Tax Department. If it is found that the tax in question for the relevant year is already deposited, the petitioner will have no obligation to pay the tax in question. The order passed in both the Tax Case Nos. 8 of 1998 & 9 of 1988 is accordingly modified/clarified to the extent indicated above. Both the above applications accordingly stand disposed of. Manish/- ( Mridula Mishra, J.) ( Shailesh Kumar Sinha,J.)