TMI Blog1958 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Madras High Court in Gannon Dunkerley and Co. (Madras) Ltd. v. State of Madras [1954] 5 S.T.C. 216; A.I.R. 1954 Mad. 1130. The Officer, however, declined to accept this contention of the petitioner and levied sales tax determining the petitioner's turnover in accordance with the rules in force in Madras area relating to the determination of turnover in respect of works contracts. This was by an order dated 29th June, 1954, in Assessment No. A2-4148/53-54. By the same order, he also made a provisional assessment in respect of the immediately succeeding year 1954-55. Subsequently on 6th June, 1955, a final assessment order was also passed in respect of the year 1954-55. An appeal against the latter order was dismissed by the Comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pronouncement of the Supreme Court it is not possible to sustain the validity of the orders of assessment. He, however, points out that there is no prayer in the writ petition to quash these orders and that the only prayer made is for the issue of a mandamus for refund which ought not to be granted for several reasons. In the first place, he points out that a writ in the nature of mandamus directing a refund of a specified sum of money cannot be asked for because the refund as claimed in the writ petition is not on the basis that there is any statutory duty to make the refund but on the basis that the money, the refund of which is claimed, had been collected by orders which are subsequently found to be illegal. In such a case, according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamus should not issue as prayed for by the petitioner. It cannot be doubted that the mandamus asked for is not in enforcement of a statutory duty which the respondents are obliged to perform in relation to the petitioner. Right to refund necessarily rests on the declaration of the invalidity of the orders on the strength of which the tax had been collected. The learned counsel for the petitioner has drawn our attention to the recent decision of the Supreme Court in Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf[1958] 9 S.T.C. 747., which, according to him, justified his prayer for the issue of a mandamus for refund of money. In that case after the declaration of invalidity of tax levied under the U.P. Sales Tax Act on forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That does not mean that a mandamus for recovery of money could issue as a matter of course. As pointed out by the learned Government Pleader before us, the claim for refund itself being a justiciable claim, which the State like any other party would be entitled to meet by raising such pleas as may be available to it under the law, we should not by the issue of a writ of mandamus immediately deprive the state of the liberty of raising such pleas as may be available to it; nor could we be asked to investigate the facts and circumstances on which such pleas may be ultimately founded. We are also impressed by the circumstance that the petitioner has not chosen to come to this Court in good time, but only long after the impugned orders had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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