TMI Blog1963 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... Sastri, Senior Advocate, (T.V.R. Tatachari and B.R.G.K. Achar, Advocates, with him) for the appellant (in all the appeals). K. Bhimasankaram, Senior Advocate, (Miss Chander Kohli and Mrs. E. Udayaratnam, Advocates, with him), for the respondent (in all the appelas.) -------------------------------------------------- The Judgment of the Court was delivered by HIDAYATULLAH, J. -This judgment will dispose of Civil Appeals Nos. 494 to 496 of 1962. The State of Andhra Pradesh which now stands substituted for the Provincial Government of Madras is the appellant. The respondent is one J. S. Basappa, a groundnut-oil merchant of Kurnool who was selling oil within the Province and also exported it to extra-Provincial points. These three appeals concern sales tax for the years 1944-45, 1945-46 and 1946-47. They arise out of three suits filed by Basappa against the Provincial Government of Madras now represented by the Government of Andhra Pradesh, the details of which are given below. For the year 1944-45, Basappa was assessed to sales tax amounting to Rs. 12,983-2-2 of which, according to him, a sum of Rs. 1,594-1-5 only represented sales within the Province. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax in respect of some of the transactions was illegal. The Subordinate Judge held that there was nothing in the Sales Tax Act to exclude the jurisdiction of the civil court and that the finality spoken of by section 11 of the Sales Tax Act was a finality arising under the Sales Tax Act and had no reference to the jurisdiction of the civil court. He also held that Basappa was not required to exhaust his other remedies before moving the civil court by suit. On second point, the Subordinate Judge held that O.S. Nos. 14 of 1950 and 44 of 1949 were barred by time under section 18 of the Sales Tax Act or Article 16 of the Limitation Act whichever might be applied. The learned Subordinate Judge held that Article 62 of the Limitation Act was not applicable because Basappa had not pleaded in these two suits that payment of the tax was made under a mistake. The Sub- ordinate Judge, however, held that O.S. No. 23 of 1949 was in time. In O.S. Nos. 14 of 1950 and 44 of 1949, he recorded findings that taxes amounting to Rs. 7,203-12-9 in respect of O.S. No. 14 of 1950 and Rs. 5,370-7-0 in respect of O.S. No. 44 1949 were wrongly levied, because those amounts concerned sales which took p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessable to sales tax as the sales took place within the Province of Madras. The High Court, however, acting upon the decision of this Court in Ram Narain's case [1955] 2 S.C.R. 483; 6 S.T.C. 627., held that the legal and the illegal levies were so mixed up that the entire demand for tax was rendered illegal and void. In the result, the appeals filed by Basappa were allowed and the cross-objection filed by the Provincial Government of Madras was dismissed. The High Court certified these cases and the present appeals have been filed. Three questions are raised by Mr. A.V. Viswanatha Sastri. They are, (1) that the civil court had no jurisdiction to try these suits, (2) that the suits O.S. Nos. 14 of 1950 and 44 of 1949 were barred by time under section 18 of the Sales Tax Act, and (3) that the High Court was wrong in holding that the assessments were not capable of being split up and in declaring the total assessments to be void. The first two points give no trouble at all. Section 18 of the Act reads: "No suit shall be instituted against the State Government and no suit, prosecution or other proceeding shall be instituted against any officer or servant of the State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he construction" of section 11(4). He submits that the finality which was conferred on the appellate order subject to a revision must necessarily be a finality against determination of the same question by the civil court. It is pointed out by this Court in Chetty's case Civil Appeal No. 315 of 1962 decided on January 25, 1963; since reported at, that the exclusion of the jurisdiction of the civil court is not to be readily inferred and that even if a provision giving the orders a finality was enacted, civil courts still have jurisdiction to interfere where fundamental provisions of the Act are not complied with, or where the statutory tribunals do not act in conformity with the fundamental principles of judicial procedure. Gajendragadkar, J., speaking for the Court on that occasion, summed up the law as follows: "In dealing with the question whether civil court's jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the civil court's jurisdiction is completely taken away. Applying these tests, it is clear that without a provision like section 18A in the Act, the jurisdiction of the civil court would not be taken away at least where the action of the authorities is wholly out- side the law and is not a mere error in the exercise of jurisdiction. Mr. Sastri says that we must interpret the Act in the same way as if section 18A was implicit in it and that section 18A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders of assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within the State was a matter wholly outside the jurisdiction of the taxing authorities and in respect of such illegal action the jurisdiction of the civil court continued to subsist. In our judgment the suits were competent. The last question is whether the assessment as a whole must fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , C. J.) in these conditions held that an assessment which was bad in part was infected throughout and treated it as invalid. Here their Lordships are of opinion, by parity of reasoning, that the assessment was invalid in toto." It is urged by Mr. Sastri that the tax here is at the uniform rate of 1% and as all the returns and documents necessary to separate the bad part from the good are available, there is no need to cancel the whole assessment. He contends that these cases are rather governed by the other rule that where the assessment is for separate sums, only that portion need be declared illegal which is void. It is necessary to explain the distinction between the two classes of cases and how they are to be distinguished. A difference in approach arises only in those cases where the assessment of many matters results in amounts of tax which, though parts of the whole assessment, stand completely separate. There the court can declare the "separate, dissected and ear- marked" items illegal and excise them from the levy. In doing so, the court does not arrogate to itself the functions of the taxing authorities; but where the tax is a composite one and to separate the good par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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