AKIL KURESHI, J.

1. The petitioners have challenged the action of the respondent authorities refusing to refund a sum of Rs.3,59,100/- paid by the petitioners for availing the benefit of an amnesty scheme. The petitioners seek refund of such amount with interest.

2. Brief facts are as under. Petitioner no.1 is a proprietary concern. Petitioner no.2 is the proprietor of the said concern. The petitioners proprietary concern are dealing in oil and cattle feed. For the assessment year 2002-2003, the tax department had raised certain tax demands against the petitioners which the petitioners had challenged in the appeal. Pending such appeal, for the later years, the petitioners had to receive refund from the department. Somewhere in the year 2012, such refund amount was first adjusted against the petitioners' dues for the year 2002-2003 and thereafter, residue of the refund was released.

3. On 2.4.2012, the Government came up with an amnesty scheme offering settlement opportunity to range of dealers whose cases were pending at various stages, mainly making exclusion in case of tax evaders. As per this scheme, if the dealer paid the disputed tax amount, interest and penalty would be waived. Last date for availing the benefit of the scheme was 30.9.2012. An intending dealer would apply to the competent authority and pay the tax on admitted liability. If the authorities find that tax was adequately paid, offer of settlement would be accepted. Clause 13 of the scheme provided that a dealer who takes the benefit of the scheme would get no refund even if such refund arises out of the provisions of the scheme.

4. Case of the petitioners is that the concern is a small one. Unmindful of the fact that the disputed taxes for the said year 2002-2003 had already been paid through adjustments out of the refunds for the later years, petitioners applied for settlement as per the said scheme. On 25.9.2012, along with such application, the petitioner produced proof of payment of admitted tax of Rs.3,59,100/which was deposited with the Government on 20.9.2012.

5. For a long time thereafter, the authorities neither accepted nor rejected the petitioners' application for settlement. According to the petitioners, they realised that the refund was adjusted for the tax demands for the assessment years 2002-2003 only when the final order of assessment was passed in the assessment year 2011-2012 on 30.3.2016 in which this factum of adjustment of refund was referred. Again under somewhat mistaken legal advise, the petitioners preferred appeal against such order of assessment. The petitioners' grievance was not with respect to assessment perse but with respect to the adjustment of the refund. The appellate authority therefore, promptly and correctly disposed of the appeal permitting the petitioners to approach the concerned authority under the amnesty scheme for redressal of the grievances. The appeal was thus disposed of on 10.3.2017. On 5.5.2017, the petitioner had applied for refund of said sum of Rs.3,59,100/erroneously deposited for availing the benefit of the scheme. The authority however rejected such a request on 22.9.2017 conveying to the petitioners that as per the terms of scheme, no refund can be paid. The petitioners' application was therefore, rejected.

6. From the record, it clearly emerges that by the time, the petitioners applied for the benefit of the amnesty scheme, the entire amount of tax with other charges was recovered by adjusting it from the petitioners' refund claims for the later years. The petitioners' application under the scheme was therefore, untenable. Under totally mistaken belief of facts, the petitioner had applied. The Government should have promptly refunded the same. When there was no occasion for the petitioners to apply for the amnesty scheme, there was no reason for the Government to hold on to the said sum of Rs. 3,59,100/deposited by the petitioners under the scheme. Clause 13 of the scheme which prohibits granting