TMI Blog1968 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... licence, and accordingly the appellants had been taking out licence from the year 1953-54 till 1957-58. In 1958-59, the department discovered the mistake that they could not collect licence fee from the appellants, whereupon the appellants applied to the department for refund of the licence fee collected so far. The department refunded the licence fee collected for 1958-59, but refused to return the licence fee for the earlier years. Since the department refused to refund the licence fees which were not paid voluntarily by the appellants, they filed the suits after giving notice to the respondent. The defence to the suits is that the suits are not maintainable in the civil courts under the provisions of section 51 of the Madras General Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ordinary course of the business of the State will not make any difference to the position and under the plain terms of section 72 of the Contract Act, the assessee will be entitled to recover back the moneys paid by it to the State under a mistake of law. In the present case, the payment of licence fee is not a voluntary payment. The B. Memo issued by the Assistant Commercial Tax Officer, Tiruvarur, to the plaintiff under exhibit B-2 stated that if the amount of the fee was not paid within 21 days from the date of receipt of the notice, action would be taken under the provisions of the Revenue Recovery Act. Learned counsel cited the decision in Venkataraman and Company v. State of Madras[1966] 17 S.T.C. 418. , where the Supreme Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case, the assessee himself submitted voluntarily returns imagining himself to be liable for assessment and the Sales Tax Authorities acted on the basis of the return submitted by the assessee. Later it turned out that the transactions were sales and not purchases. It is a case of incorrect or wrong assessment under the Act which should be corrected by proceedings taken under the Act. But in the present case, there is no provision in the Act or the Rules to levy licence fees. Their Lordships of the Supreme Court have recently in the case of Dhulabhai v. State of Madhya Pradesh[1968] 22 S.T.C. 416. reviewed the entire case law on the subject and formulated the general principles. What is relevant for our purpose are these: "(1) Where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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