Judgment:
D.V. Shylendra Kumar, J.
1. The writ petition was on behalf of a firm, a registered dealer, which has since been dissolved, represented by its former partner, praying for issue of directions to direct the first respondent-assessing authority to consider the claim of the petitioner for reassessment/ incentive on purchase of groundnuts, groundnut seeds, etc., in the passing of the assessment orders for the assessment years 1979-80,1980-81,1981-82, 1982-83 and 1983-84.
2. The prayer is to direct the authorities to reopen these assessment orders, apply the law as has developed subsequently and extend such concession or benefits that the petitioner may become entitled to. On such reassessment, applying the law as it stood then, particularly in terms of the law as has been laid down by this Court in the case of Dharmendra Trading Company and connected matters, disposed of on April 4, 1979. Petitioner has also sought further directions as contained in the order of this Court dated March 11, 1998 passed in W.P. Nos. 20708-20712 of 1991 at the instance of the very petitioner.
3. The submission of Sri S.G. Shivaram, learned Counsel for the petitioner is that the respondents in spite of such directions which had been contained in the order dated April 4, 1979 and the specific directions in the order of this Court dated March 11, 1998 rendered in W.P. Nos. 20708-20712 of 1991, have failed to act on the same but in spite of an application and request having been made by the petitioner to extend such concession to which the petitioner might have become entitled to, have rejected the application and in such circumstances it has become necessary for the petitioner to approach this Court again, praying for suitable directions.
4. It is also the submission of Sri Shivaram, learned Counsel appearing for the petitioner, that the firm itself stood dissolved, that the partners were undergoing one ordeal after another, that there had been several catastrophes in their family and in such circumstances the matter requires very sympathetic consideration. The learned Counsel draws the attention of this Court to the orders passed by this Court in cases said to be similar, directing the authorities to consider the claim for refund/extension of incentives as ordered by this Court in the order dated August 9, 2001 in W.P. No. 12368-371 of 2001 and the order dated January 2,1997 passed in W.P. No. 21532 of 1992, and therefore, urges that this writ petition should be disposed of issuing similar directions to the authorities to consider the claim of the petitioner for extention of different incentives/refund in terms of the law laid down and the direction that had been issued by this Court, etc.
5. In the case of the petitioners, the assessment for the years in question had been completed. An incentive or a benefit is claimed as part of the assessment. If the petitioner was aggrieved with the determination of tax liability in such assessment she could have pursued the matter urging upon the appellate authority to apply the correct law and to set right an erroneous assessment order. Unfortunately, the petitioner had not resorted to that course of action. On the other hand, it appears, that the petitioner had sought for refund along with the letter dated October 4, 1990 and such an application came to be rejected in terms of the endorsement dated May 9, 1991 vide annexure E albeit on the ground that the petitioner's unit was engaged in decortication of groundnuts into groundnut seeds, etc., and therefore, was not eligible for incentives, etc.
6. Even as the very endorsement indicates, it is not as though any amount was due to the petitioner by way of refund but the petitioner was due in respect of certain amount by way of tax to be paid.
7. A refund arises only on pointing out that the amount that has been collected by way of taxes is over and above the actual tax liability or when the tax liability gets reduced in terms of the order passed by the appellate authority or the higher authority modifying the assessment or re-determining the liability. Unfortunately, in none of the above situations the petitioner had her case. The petitioner, without seeking a proper remedy, doggedly pursued before this Court by filing one more round of writ petition and one more round of litigation in W.P. No. 20708-20712 of 1991.
8. Here again, the petitioner only sought for a general direction to extend incentives on purchase of groundnuts and groundnut seeds, etc. This Court by order dated March 11, 1998 vide annexure H, disposed of this petition directing the authorities to consider and pass orders in accordance with the directions already given by this Court with a caveat that if the order is not already passed, and if it is found that the petitioner is entitled for refund of purchase tax.
9. But refund of purchase tax is different from a claim for incentive. Unfortunately, the petitioner did not make the endorsement dated May 9, 1991 rejecting his application for refund, a subject-matter of this petition and on the other hand, the learned Judge proceeded to pass the order on the premise that no order has been passed and on the assumption the application was still under consideration. If the petitioner should have made this endorsement dated May 9, 1991 also the subject-matter of the writ petition, the endorsement could have been quashed, and further consequences could have undoubtedly followed. But unfortunately, for the petitioner that was not the case.
10. The petitioner, without realising its follies and pursuing incorrect remedies, it appears, had filed yet another application dated March 11, 2002 before the assessing authority praying for rectification of the assessment orders. The application purporting to be under Section 25-A was filed many years beyond the period of 5 years permitted under this very provision, i.e., after a lapse of 13 years after the passing of the assessment order and yet again met with failure in terms of the endorsement dated April 4, 2002. It appears that the petitioner had filed a further appeal against this endorsement before the Joint Commissioner of Commercial Taxes, Appeals, Davangere and the Joint Commissioner noticing that the application for rectification itself had been filed after a period of 13 years and 8 months from the date of original assessment orders, and as the assessing authority himself was unable to rectify the order beyond the period of 5 years, rejected the appeal holding that there is no occasion to interfere with the order of such a nature.
11. It is thereafter, after a lapse of another 2 1/2 years the present writ petition is filed. Though Mr. Shivaram, learned Counsel for the petitioner contends, that insofar as the matters concerning refund, extension of concession, etc., no strict period of limitation can be imposed, that if the petitioner was entitled to certain benefit this Court can issue directions even at this point of time to direct the authorities to examine the question of extending such benefit to the petitioner, particularly, the law in this regard having been set right over a period of time and as of now on the application of the prevailing law, it is obvious that the petitioner can claim benefit.
12. It may be true that the development of law might have taken place over a period of time and if persons like petitioner become entitled to, they can claim such benefit as and when the law developed for the period thereafter. Insofar as tax matters are concerned, determination of liabilities is from year to year and not at any point of time. The liability is in terms of the assessment years and unless the very orders for each of the assessment years are pursued they get concluded. It is not as though a concluded assessment order can be reopened at any and every point of time as and when the law has developed subsequently. In the case of the petitioner, the assessment years got concluded way back in terms of the orders passed for the years 1979-80 to 1983-84 on June 29,1988. Unfortunately for the petitioner, the petitioner instead of focussing attention on these assessment orders and seeking rectification or modification of these assessment orders in accordance with law, had always pursued wrong remedies, particularly making refund applications, claims for refund, when in law she was not at all entitled for any refund nor any amount was due to her. On the other hand, the authorities have noticed that certain amounts were due from the petitioner in terms of the assessment orders.
13. Yet another application for refund, does not lie at this point of time. It is not as though the petitioner could keep coming up with application after application for refund and seek an issue of direction from this Court, to consider such prayers or requests. In fact, there is no valid refund application, which had been filed by the petitioner at any point of time for consideration of which a direction could have been issued by this Court. The position is not any different as of now. When a request for refund came to be rejected by endorsement dated May 9,1991 more than 14 years ago, there is no question of this Court issuing direction to the assessing authority to reopen the concluded assessment orders for the years in question concluded in the year 1988, to re-open at this point of time, particularly, for grant of refund, etc. There is no refund in favour of the petitioner, as a consequence of passing of any orders reducing the tax liability of the petitioner and therefore assuming that the petitioner has made yet another application for refund, no mandamus can be issued to the respondents to direct them to consider the present application of the petitioner for such refund.
14. The submissions of the learned Counsel for the petitioner are not tenable, not acceptable and are hereby rejected.
15. Accordingly, the writ petition is dismissed.