The duty of the Assessing Authority to refund any amount of tax paid in excess of the amount due from the dealer under the Act, as per Section 29, and the eligibility of deposits made on behalf of the dealer for refund.

( 1 ) THE main grievance of the petitioner is that although it has ultimately succeeded in its contention that there is no liability to pay any trade tax in respect of the Bio Gas Plant supplied and installed by the petitioner at Kesar Sugar Works and Indian Turpentine and Rosin Co. Bareily for the assessment years 1987-88, 1990-91 and 1991-92, but the trade tax, which it deposited at the insistence of the respondents wrongly treating the said Bio Gas Plant as unclassified item, is not being refunded.

( 2 ) THE petitioner, a private limited company, having its registered office at Nagpur entered into a tripartite agreement with Indian Turpentine and Rosin Company and Industrial Finance Corporation of India for installation of Bio Gas Generating Plant at the premises of Indian Turpentine and Rosin Company Bareily. Similar agreement was entered into for supplying and installation of Bio Gas at Kesar Sugar Mills Baheri (District Bareilly ). The Assistant Commissioner (Assessment) Trade Tax, Bareilly by means of three separate assessment orders for the aforesaid three relevant assessment years all dated March, 22nd, 1993 (collectively filed as annexure -1 to the writ petition) held that the supply and installation of Bio Gas Plant is liable to be taxed under the provisions of U. P. Trade Tax Act at the rate of 10 per cent as unclassified item.

( 3 ) THE petitioner unsuccessfully challenged these orders in three separate appeals which were decided by Deputy Commissioner (Appeals), Trade Tax by the common order dated 19th March, 1994. Thereafter, it filed three second appeals being appeals no. 231 of 1994, 232 of 1994 and 233 of 1994 for the assessment years 1990-91, 1987-88 and 1991-92 respectively before the Trade Tax Tribunal, Lucknow. The Tribunal allowed all the three appeals. It has recorded a finding that the supplies made by the petitioner through Industrial Finance Corporation of India to Indian Turpentine and Rosin Company Limited, Bareilly, the Bio Gas Generating and Equipment Treatment supplied by the petitioner is not liable to be taxed as it is covered by Notification No. 7038 dated 31st of January, 1985 under Entry 23 being item No. 30. But it directed that the question as to whether there was a relationship of lessor and lessee in between Industrial Finance Act of India and Indian Turpentine and Rosin Company has to be examined under section 3 F (1) (a) of the Act for the assessment years 1990-91 and 1991-92.

( 4 ) IT may be pointed out that the Tribunal has passed two separate orders of the same date dated 3. 12. 1997, while allowing the appeal filed by the petitioner. But there is some variation in the operative portion of the two orders, which will be noticed at the later part of this judgment. It is not in dispute that two orders passed by the Tribunal have attained finality as the respondents did not prefer any further revision against the aforesaid orders. Armed with the orders of the Tribunal the petitioner approached the Assessing Authority for the refund of the tax deposited by it for the aforesaid two assessment orders, who by the letter dated 1st of April, 2001, vide annexure -4, to the writ petition directed the petitioner to get the order of the Tribunal dated 3. 12. 1997 rectified as there is no specific order to refund the amount deposited by the petitioner. In the first para of this letter it is mentioned that the petitioner has deposited Rs. 3,37,500/- on 7th of August, 1992 and Rs. 19,700/- on 9th of October, 1992 at Lucknow. Petitioner subsequently filed rectification applications under section 22 of the U. P. Trade Tax Act (hereinafter called as the Act) before the Tribunal for incorporation of specific directions in its earlier order dated 3. 12. 1997 to refund the amount, deposited by the petitioner.

( 5 ) THE said applications were dismissed on the short ground that they have been filed beyond the prescribed period of limitation of three years and there is no provision to condone delay in filin

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