TMI Blog1957 (2) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-50 29-09-51 19-12-51 29-2-52 - 1,35,250-0-0 187/55 31-12-50 29-09-51 19-12-51 29-2-52 - 1,37,613-7-0 188/55 31-03-51 29-09-51 19-12-51 29-2-52 - 1,44,853-0-0 2. The petitioners paid the taxes in due course but when they came to know of the decision of the Supreme Court in the United Motors case(1) (State of Bombay v. United Motors (India) Ltd.) construing Article 286(1) of the Constitution they though that they were not liable to pay sales tax in respect of the transactions covered by these applications inasmuch as they related to inter-State sales. Their claims for refund were mainly based on the decision of the Supreme Court which, according to them, made it absolutely clear that no sales tax was due from them in respect of those transactions. The subsequent reversal of that decision of the Supreme Court by a later decision of the same Court in the Bengal Immunity case(2) (Bengal Immunity Co. v. State of Bihar) in respect of other matters did not, however, affect the former decision so far as the non-liability to pay sales tax in respect of these t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows: "Save as is provided in section 24, no assessment made and no order passed under this Act or the rules made thereunder by the Collector or any person appointed under section 3 to assist him shall be called into question in any Court; and save as is provided in section 23, no appeal or application for revision or review shall lie against any such assessment or order." The learned Counsel for the Sales Tax Authorities has relied very much on this section and urged that by virtue of this section finality is given to an assessment made under the Act and it is not open to this Court to order refund on the ground that (1)[1953] 4 S.T.C. 133; A.I.R. 1953 S.C. 252. the assessment was illegal merely because the case law underwent a change in the Supreme Court in the United Motors case(1). The obvious answer to this question is that the powers of this Court under Article 226 which are derived from the Constitution cannot be in any way circumscribed by an Act of a Legislature in India and consequently merely because some sort of finality is given to an order under any statute the jurisdiction of this Court under Article 226 cannot be cur- tailed. 5.. The refund section is as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection shall operate to validate any objection or appeal which is otherwise invalid or to authorise the revision of any assessment or other matter which has become final and conclusive, or the review by any officer of a decision of his own which is subject to appeal or revision, or where any relief is specifically provided else- where in this Act, to entitle any person to any relief other or greater than that relief or to entitle any person to claim a refund of tax pay- able before the commencement of the Indian Income-tax (Amendment) Act, 1939, which he would not be entitled to claim but for the passing of that Act." Sub-section (4) of that section expressly bars the consideration of any application for refund if that involves the revision of any assessment which has become final or conclusive. The Privy Council decision in Commissioner of Income-tax v. Tribune Trust(1) is based on the language of sub-section (4) of section 48 of the Income-tax Act (old section 48-A). Such a provision is significantly wanting in section 14 of the Act. Mr. Gupta on behalf of the petitioner, therefore, contended that so long as the applications are within the period of limitation provided by secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t imposing sales tax on forward contracts were ultra vires the State Legislature. The assessee then applied for refund of the tax paid. His prayer was allowed and the decision was based on section 72 of the Indian Contract Act and their Lordships held that payment made even under mistake of law may have to be refunded and section 21 of the Contract Act would not operate as a bar. In the present case also the petitioners can contend with equal force that the payments were all made under a view of law regarding Article 286(1) of the Constitution which has been held to be incorrect by the Supreme Court in the United Motors case(3). 9.. The counsel for the opposite party, however, relied on section 9-B(3) of the Act and urged that where a registered dealer collects any amount by way of tax even though no tax is payable in respect thereof, he is bound to deposit the same in the treasury and that consequently he was not entitled to refund. According to him, the various constituents who actually paid the tax may be entitled to claim refund from the Government. But the petitioners are registered dealers and they merely acted as middlemen in collecting the sales tax from the constituents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Misra, however, distinguished all these decisions by pointing out that the corresponding provisions either of the Madras Sales Tax Act or of the Mysore Sales Tax Act or of the Hyderabad Sales Tax Act were somewhat different from sub- section (3) of section 9-B of the Act inasmuch as there the words "if no tax is payable in respect thereof" are not found. In the Orissa Act, however, it is expressly made clear that even if no tax is payable if a registered dealer collects from any person any amount by way of sales tax he must deposit it in the treasury. Hence the aforesaid decisions may not be applicable to the present case. But I have already shown that on the main principles of statutory construction the right to refund under section 14 cannot be taken away by the mere right of the (1)[1954] 5 S.T.C. 382. (4)[1954] 5 S.T.C. 58. (2)[1946] 7 S.T.C. 148. (5)[1957] 8 S.T.C. 42. (3)[1956] 7 S.T.C. 460. Government to receive the amount in deposit conferred by section 9-B(3). I may further point out that though section 9-B was amended by the Orissa Sales Tax (Amendment) Act, 1954 (Orissa Act I of 1955) by substituting the words "any amount by way of tax" for the words "any tax", no am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7). If the amount re-assessed alone is found to be not due whereas the amount assessed is found to be due the date of re-assessment will be the starting point for limitation; whereas if the amount originally assessed be held to be not due the date of assessment should be the starting point. It is immaterial as to whether the assessment and re-assessment refer to the same period. The affidavit filed by the opposite party to the effect that the re-assessment under section 12(7) was in respect of local sales only has not been challenged by any counter-affidavit. The liability to pay sales tax in respect of local sales is beyond question and is not affected by the decision of the Supreme Court mentioned above. Hence, there will be no right of refund for the tax paid in respect of such sales though the original assessment must be held to be invalid as it related to inter- State sales which are covered by the Supreme Court decision. 14.. Before the Income-tax Authorities a technical objection was taken on the ground that the applications for refund were not filed before the appropriate authority, namely, the Collector of Agricultural Income-tax. This point was not seriously pressed be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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