JUDGMENT
H.L. Gokhale, C.J.
1. Heard Shri Pawan Agarwal or the appellant She B.K. Pandey appears for the respondents.
2. Mr. Pawan Agarwal seeks to amend the petition to add prayer No. (i-a ) between the prayers (i) and (ii) to challenge the orders dated 27.2.1999 passed by the Trade Tax Officer, Saharanpur and subsequent order dated 19.1.2001 passed by the same officer.
3. Leave granted. Amendment be carried out forthwith.
4. A counter affidavit has already been filed by the State as far as the two prayers are concerned. This amended prayer is essential for effectively granting the prayer No. (i) to the petition. This being, the position, no separate counter affidavit is required.
5. Heard learned Counsel for the patties.
6. The petitioner Herein had been engaged in the business of manufacturing and sale of bricks. As far as the assessment year, 1985-86 is concerned, the assessing authority had levied a tax to the tune of Rs. 69,147/- and created the additional demand of tax at Rs. 52, 99/-. The petitioner filed an appeal in which the amount was reduced only Rs. 224.48. The second appeal filed before the Tribunal was also rejected on 15.2.1997.
7. The State Government came out with a scheme under the Government Order dated 20.5.1998 with a view to encourage the traders to pay arrears of the trade tax on the footing that if they pay the arrears, the interest payable would be waived. The government was inclined to come with the scheme for the reason that there were huge arrears of the trade tax and the idea was to give an incentive to the traders Initially the scheme was for a period of six months i.e. from 1.6.1998 to 30.11.1998 mil later on this scheme was further extended upto 31.3.1999. There is no counter on this part nor is there any dispute that the scheme was so extended.
8. Consequent upon the decision of the Tribunal, a balance of Rs. 33,864/- was payable by the petitioner and the petitioner could have challenged the decision of the Tribunal by filing a writ petition. The petitioner, however, moved an application for availing of the benefit of the aforesaid scheme and paid the demand in three instalments. The last instalment was paid in January 1999. Accordingly the petitioner made an application for waiving of the interest under the scheme promulgated by the State Government on 20.5.1998.
9. It, however, so transpires that the officer before whom the application was made took a view that the application was not tenable and rejected the application by the order dated 27.2.1999. The reason given in this order was that the petitioner had availed of the remedies of internal first and second appeals and therefore, the interest could not be waived. The petitioner filed an appeal against this decision and the matter was remanded to the assessing authority, it so happened in the meanwhile that the recovery officer proceeded to recover the interest amount to the tune of Rs. 57874/- which can be seen from the recovery certificate dated 1.6.1999. In view of this recovery, the officer concerned, to whom the matter was remanded, dismissed the application by his subsequent order on 19.1.2001. Therefore, this petition has been filed and now he amended the petition to challenge both these orders dated 27.2.1999 and 19.1.2001 as also to seek the refund of the amount of interest, which has been recovered.
10. Mr Pawan Agarwal, learned Counsel for the petitioner submits that the trade tax officer was in error in rejecting the application by his order dated 27.2.1999. The purpose of the scheme was that the traders are to accept the liability and if he so accepts, the interest amount is expected to be waived. Mr. B.K. Pandey, learned Government Counsel, on the other hand, submits that firstly, the petitioner had availed of the internal remedies before making the application under the scheme, and secondly, the amount had already been recovered and therefore, there is no question of refund.
11. We have considered the submissions of both the parties. As far as the provisions of the scheme are concerned, the Government Order dated 20.5.1998 states in Clause 2(Ga) that:
In the event the traders has filed an appeal or revision application against the determination of tax, if he wants to avail of the benefit of the waiver scheme, he will have to withdraw the appeal or revision application and in that case only, he will get the benefit of the scheme. He will have to produce the order of the concerned court showing withdrawal of the concerned proceeding.
12. Now when we see the origin of this clause the inherent idea was that the traders are to accept the determination of tax. In the event he has filed any appeal or revision, which is pending, he has undoubtedly to withdraw it. Needless to state that if he has a remedy available thereafter, he is not expected to pursue it. It is also implied that if he has availed of any such remedy, that by itself will not deny him the opportunity of the benefit of the scheme, provided he accepts the determination of the liability. In the instant case, the petitioner has undoubtedly filed two internal appeals, which was decided against him though a limited benefit was given to him. He was having the remedy to challenge this decision by filing a revision before this Court but instead of doing that, he decided to take the benefit of the scheme and deposited the remaining tax liability which was disclosed in the first order dated 27.2.1999 passed by the trade tax officer. In that view of the maner, the officer was in error in declining by taking a narrow view stating that the petitioner has already availed of the internal remedies by filing the appeals and therefore, he would not be entitled to the benefit of the scheme. Such a narrow literal interpretation is against the spirit of the scheme, which is basically to promulgate to enhance the recovery of the tax. The petitioner has played his roll by depositing the remaining tax which he could have refrained form depositing the amount and could have moved further by filing a ‘revision’, but he has deposited the tax to take the benefit of the scheme.
13. It was expected by the officer that he would grant him the benefit of the scheme. However, when the earlier order dated 7.2.1999 was set aside by the appellate authority and the matter was sent back to him to reconsider the decision, the officer committed another error by taking a view that since the amount of interest had already been recovered, there was no question of granting any benefit of the scheme Surely this submission of the revenue can also not be accepted. If there is an erroneous recovery, the amount will have to be refunded to the assessee. Once the assessee has acted in accordance with the terms of the scheme, the principle of promissory estoppel will apply and therefore, the petitioner will be entitled to get the refund of the amount of interest, which has been erroneously recovered from him.
14. In the circumstances, we allow this petition and set aside the orders dated 27.2.1999 and 19.1.2001. Although in the notice of recovery the claim of interest is of Rs. 81951/- but the actual amount recovered is Rs. 57874/-. Accordingly, we direct the respondent to refund this amount of Rs. 57874/- within three months thereof, failing which the petitioner will be entitled for interest in terms of the provision on the non-refunded amount after the expiry of three months from the date of the order under Section 29(2) of the U.P. Trade Tax Act.