TMI Blog1961 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... aining this question remanded the suit for fresh disposal. 3.. Section 9 of the Code of Civil Procedure says: "The Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred." So in order that jurisdiction of the Civil Courts should be deemed to have been ousted, the exclusion must be clearly expressed or implied and without any such provision the ordinary law of the land could not be departed from. 4.. The earliest of the cases to which reference may be made is Ramachandra v. Secretary of State[1889] I.L.R. 12 Mad. 105., where the Court held that where, by an Act of the Legislature, powers are given to any person for a public purpose, from which an individual may receive injury, if the mode of redressing the injury is pointed out by the statute, the ordinary jurisdiction of Civil Courts is ousted and in the case of injury the party cannot proceed by action. 5.. This decision has been considered in later cases. In Iswarananda Bharathiswami v. Commissioner, Hindu Religious Endowments Board[1950] I.L.R. 54 Mad. 928. the learned Judges, Curgenven a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case law in great detail and came to the conclusion that with regard to the Bihar Sales Tax Act of 1944, a suit for a declaration and injunction under section 42 of the Specific Relief Act was not maintainable because the plaintiff had a complete remedy under the provisions of that Act itself. 9.. In the Full Bench decision in Public Prosecutor v. Ramalingam[1958] 9 S.T.C. 510 A.I.R. 1958 Mad. 544. arising under section 16-A, which is similar to section 18-A of the Act, an analysis of the various provisions of the Act has been made showing that it is a self-contained and comprehensive legislation which enables an assessee to question the assessment imposed on him and that it will not be open to him to raise any objection, plea or contention which he could have raised before the authorities when he is prosecuted under section 15(b) of the Act for failure to pay the tax. 10.. This decision was followed in John v. Shertallai Municipality[1959] K.L.R. 577., where Koshi, C.J., held that the assessment or levy can be questioned only under the provisions and in the manner prescribed under the Act and it will not be open to an accused to raise any such plea before a Court when he is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee. Meanwhile, during the pendency of the appeal to the Privy Council, assessments continued to be made in respect of the same property till 1938-39 disallowing the claim for an exemption and they not having been appealed against became final before the decision of the Privy Council. After the Privy Council allowed the claim of the assessee in respect of 193233 the assessee applied to the Commissioner under section 33 of the Income-tax Act to re-open the assessments for those years and to quash the assessments as they had become a nullity in view of the Privy Council decision holding that the assessee's property was exempt from taxation by virtue of section 4(3)(i) of the Act. It was rejected by the Commissioner. On a case being stated by the Commissioner of Incometax under the directions of the Lahore High Court, that Court held that the assessments in question were a nullity and that the assessee could not be denied the relief he claimed under section 33 on any valid ground. The Commissioner appealed to the Privy Council. Their Lordships allowed the appeal and observed: "Upon this footing, then the argument must be that the assessee has a right enforceable against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt would have it that even if section 18-A is there, the jurisdiction of the Court is not ousted, as a suit is provided for by section 18, and section 18-A says that a suit will not lie only if it is not expressly provided for in the Act. Reference was made to the decision in Province of Madras v. Chekka Satyanarayanamurthy[1951] 2 S.T.C. 141; [1951] 2 M.L.J. 340. that section 18 did not take away the jurisdiction of the Civil Court, on the other hand the very fact that a period of limitation was prescribed for a suit indicated that a suit will lie in the Civil Court. 17.. The suit envisaged by section 18-A is a suit to set aside or modify an assessment. In other words, if the machinery prescribed under the Act has been brought into use and an assessment is made after complying with the provisions of the Act a suit in a Civil Court will not lie so as to upset or alter that assessment. It was held in State of Madras v. Abdul Kader Tharaganar Firm[1953] 4 S.T.C. 202; A.I.R. 1953 Mad. 905., that section 18 provided for actions in tort and not for suits in respect of taxation. It will, therefore, be seen that there can be suits under section 18 which do not relate to the setting asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it or any proceedings except in themanner provided in the Act. The scheme of the Act seems to be thatall questions relating to the validity of an assessment should be agitatedbefore the hierarchy of tribunals constituted for the purpose and theyshould not form the basis of proceedings in a Civil Court. 20. It was then urged that the bar under section 18-A is only tothe filing of a suit to set aside or modify any assessment and that thepresent suit being one for a declaration and injunction is not a suit to setaside or modify any assessment. In considering this question we haveto look into the substance rather than to the form of the suit. Wherethe machinery provided by the Act is used and an assessment is madeand the assessee attempts to escape the effect of the assessment by asuit pleading that he was not liable to be assessed, in substance it is asuit to set aside the assessment. The observation of the Privy Councilin Raleigh Investment Co. v. Governor-General in Council(1) referred toearlier is to this effect. 21. The suit here is based on the ground that it was not theplaintiff who carried on the business in his premises, but it was some-body else on whose behalf the business w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the assessment by a suit pleading that he was not liable to be assessed, in substance it is a suit to set aside the assessment. The observation of the Privy Council in Raleigh Investment Co. v. Governor-General in Council[1947] 15 I.T.R. 332; A.I.R. 1947 P.C. 78. referred to earlier is to this effect. 21.. The suit here is based on the ground that it was not the plaintiff who carried on the business in his premises, but it was somebody else on whose behalf the business was conducted. That is a matter for consideration which comes strictly and properly within the purview of the Act and within the province of the assessing authorities. There is no allegation that the procedure or the provisions of the Act had not been properly complied with or that the assessing authorities have violated any rules of natural justice. The suit in substance is to set aside the order of assessment by getting a declaration that the plaintiff was not liable to be assessed on the business which admittedly was carried on at his premises and by obtaining an injunction restraining the State from enforcing the order of assessment. 22.. The further question which arises in this case is whether sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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