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TMI Blog1963 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 claimed that the remaining sales took place outside the Province of Madras. He submitted that property in the goods remained with him till the export of the goods to an extra-Provincial point and till payment of price after export. He claimed that these sales could not be included in his turnover under the Madras General Sales Tax Act, 1939 (Act No. IX of 1939) and sales tax was wrongly demanded from him. In respect of this assessment, he filed O. S. No. 14 of 1950 (original No. O. S. 40 of 1949) in the Court of the Subordinate Judge, Kurnol, for refund of Rs. 11,389-0-9. The Madras State Government in a written statement traversed all the allegations and stated that delivery of the goods was made in Kurnool when the goods were booked and further that the goods were despatched at buyer's risk and remained at buyer's risk throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x 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 place outside the Province of Madras. In O.S. No. 23 of 1949, he held that sales of the value of Rs. 79,465 took place outside the Province and tax in respect of them at 1 per cent. (which was the uniform rate applicable to all the three years) was not demandable. A declaration to this effect was granted and an injunction was issued restraining the State Government from recovering Rs. 793-10-6 from Basappa. In the result, O.S. No. 14 of 1950 and 44 of 1949 were dismissed with costs and O.S. No. 23 of 1949 was partially decreed with proportionate costs. Basappa appealed in all the three suits against the decision of the Subordinate Judge, Kurnool. The Government of Madras objected in the appeal of Basappa from the decision in O.S. No. 23 of 1949 in respect of the decree for Rs. 793-10-6. In the High Court, applications were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government in respect of any act done or purporting to be done under this Act, unless the suit, prosecution or other proceeding is instituted within six months from the date of the act complained of." This section applies to suits for damages and compensation in respect of acts under the Act. It is worded in familiar language by which authorities, including Government, are protected and indemnified in respect of bona fide acts done or purporting to be done under powers conferred by the statute. The period of limitation prescribed in the section does not apply to the kind of suits which were filed by Basappa. This point has no substance and was not even pressed in the High Court. Similarly, the first point must also be decided against the State of Andhra Pradesh, because of a recent decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 very clear and unmistakable indication to the contrary. The exclusion of the jurisdiction of civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express pro- vision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute." Referring to the remarks of Lord Thankerton in Secretary of State represented by the Collector of South Arcot v. Mask and Co. [1940] 67 I.A. 222 at 236., "it is also well-settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fail or only in respect of the part which was outside the jurisdiction of the Sales Tax Authorities. We have already reproduced the four categories into which all the transactions of sale were classified. The High Court and the Court below found that categories 1 and 4 represented transactions of sale which could not be taxed at all by the authorities as those transactions took place outside the State. It may be mentioned that the Sales Tax Act did not then contain any provision which established a nexus between the sales and the Province. That provision came later. The High Court relying upon Ram Narain's case [1955] 2 S.C.R. 483; 6 S.T.C. 627. held that the assessments as a whole must fail. In Ram Narain's case [1955] 2 S.C.R. 483; 6 S.T.C. 627., a portion of the assessment was invalid under Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 part from the bad, proceedings in the nature of assessment have to be under- taken, the civil court lacks the jurisdiction. Here, the amount of tax is a percentage of the turnover and the turnover is a mixed one and it is thus not merely a question of cutting off some items which are separate but of entering upon the function of assessment which only the authorities under the Sales Tax Act can undertake. Cases of assessment based upon gross valuation such as the case from Canada referred to by the Judicial Committee afford a parallel to a case of assessment of a composite turnover such as we have here. Just as in the Canadian case it was not possible to separate the valuation of movable properties from that of immovable properties, embraced in a gross valuation roll, so also here, it is not p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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