TMI Blog1994 (2) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... J. Mrs. A.K. Verma and Ms. S.V. Phatak, Advocates (for M/s. J.B. Dadachanji Co., Advocates), for the respondents. K. Madhava Reddy, Senior Advocate (P.V. Reddy and S.M. Jadhav, Advocates, for A.S. Bhasme, Advocate, with him), for the appellant. -------------------------------------------------- ORDER This appeal is preferred against the judgment of the Bombay High Court allowing a writ petition by its order dated June 23/24, 1975. The respondent-mills was, a dealer registered under the Bombay Sales Tax Act. In respect of certain. sales effected by it, it was found liable to pay sales tax under the said Act as determined by the assessment order dated May 18, 1954. The respondent did not question the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for condoning the delay. The said authority refused to condone the delay and dismissed the appeal. The respondent filed a writ petition in the Bombay High Court questioning the appellate order on August 17, 1966. This writ petition remained pending in the High Court for nine years. The sales tax authorities (respondents in the writ petition) filed two counter-affidavits. In the first counter-affidavit filed on March 21, 1969, the authorities generally denied the contentions as well as the factual basis of the contentions raised in the writ petition but without specifically denying each averment individually. However, before the writ petition came up for hearing, a detailed counter-affidavit was filed denying each and every fact on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded a finding of fact in favour of the writ petitioner merely because the facts in the writ petition were not specifically denied in the first counter-affidavit filed in the High Court. We are of the opinion that the question whether the transactions were assessable to tax under the Act or not, is a question of fact which must be gone into by the appropriate authorities under the Act. It would have been a different matter if the High Court had discussed the facts and had recorded a finding thereon, in which situation we would not have been inclined to remit the matter back to the appellate authority as we are proposing to do. But in this case, the High Court has held the respondent entitled to refund merely because the first counter- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a refund claim which too was rejected, against which he filed a writ petition. Soon after, it withdrew the writ petition and immediately filed the said appeal. In the circumstances, the principle of section 14 of the Limitation Act must be said to have been attracted. We must make it clear that we did not intend to, nor have we expressed any opinion on the merits of the respondents' claim including his contention that the decision in Bengal Immunity [1955] 6 STC 446 (SC); [1955] 2 SCR 603 put him on notice regarding his payment of tax being under a mistake and/or that the said decision furnishes a cause of action for his claim of refund. The appeal is accordingly allowed, the judgment of the High Court is set aside, and the matter re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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