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TMI Blog1970 (12) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Sales Tax rejected the assessee's claim in respect of sales of Rs. 96,959 made to M/s. G. Rai and Company, Jhansi, on the ground that the petitioner "is not entitled to claim a concessional rate at 2 per cent. because the 'C' forms issued by the purchaser covers more than one transaction of sale exceeding Rs. 5,000 and thus provision of rule 8 of the M.P. Sales Tax (Central) Rules, 1957, is not complied with. Those will be liable to tax at the rate of 10 per cent." According to the petitioner, as a result of the rejection of the said declarations, the assessee became liable to pay an additional amount of Rs. 8,965.23 as sales tax. The entire tax assessed on the petitioner was deposited on 9th December, 1965. 2.. In the assessment proceedings, various contentions were raised on behalf of the petitioner but the proviso to rule 8 of the M.P. Sales Tax (Central) Rules, 1957, which reads as follows, was assumed to be a valid provision. In fact, the said provision could not be challenged as ultra vires before the sales tax authorities. Proviso to rule 8: "Provided that no single declaration shall cover more than one transaction of sale, except in cases where the total amount cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erving that "there is no case for taking up the case in revision. You should have kept the issue alive yourself." 8.. The petitioner has, therefore, filed this writ petition claiming that the order, annexure A, made by the Assistant Commissioner of Sales Tax may be quashed in so far as it rejects the claim of the petitioner for being taxed at a concessional rate of 2 per cent. He has further prayed for a direction being given to the respondents to refund the item of tax illegally realised from him on the aforesaid view. 9.. The contention of the learned counsel for the petitioner is that as the petitioner was assessed to tax on the basis of the proviso to rule 8 which has been held to be invalid and unenforceable, the petitioner must be held to have paid the amount of tax stated above under a mistake and he is entitled to get it back as the respondents have no authority of law for withholding payment of the said amount. 10.. On the other hand, the contention advanced by the learned Government Advocate is that the impugned order of the Assistant Commissioner of Sales Tax was made on 30th October, 1965, and payment of tax under the said order was made on 9th December, 1965. That b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89 (S.C.). In both these cases it was held that article 96 applied to a suit for recovery of money paid under a mistake of law. Article 96 has been omitted in the new Limitation Act of 1963. However, section 17(1)(c) of this new Act provides that in the case of a suit for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it. 13.. The learned Government Advocate urged that under the new Limitation Act if the petitioner was required to bring a suit, his suit would be governed by article 24, which provides a limitation of three years for money payable by the defendant to the plaintiff for money received by the defendant, for the plaintiff's suit, and time is required to be reckoned when the money is received by the defendant. However, as this article has to be read with section 17, in our opinion, the result would be the same as that provided in the Act of 1908. Article 96 was not retained as it was not necessary in view of the provision made in section 17 and not because a change in law was desired to be effected (see Limitation Act, 1963, by Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to any relief in this petition. In The State of Madhya Pradesh and Another v. Bhailal Bhai and Others [1964] 15 S.T.C. 450 (S.C.)., it was held: "Where a person comes to the court for relief under article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. As a general rule it may be stated that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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