TMI Blog1980 (4) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning of section 14(vi) of the Central Sales Tax Act and gave the assessee the benefit of a lower rate of tax. The order was affirmed by the Sales Tax Tribunal. On a reference being made at the instance of the department under section 24 of the Orissa Sales Tax Act, the conclusion reached by the Tribunal was upheld by the High Court. The department then appealed before the Supreme Court under article 136 of the Constitution. The Supreme Court by its judgment dated 30th March, 1976, in Civil Appeals Nos. 912 to 916 of 1971 dismissed the appeals. This decision was reported in July issue of A.I.R., as State. of Orissa v. Dinabandhu Sahu [1976] 37 STC 583 (SC); AIR 1976 SC 1561. 3.. After the pronouncement of the decision of their Lordships of the Supreme Court in Dinabandhu Sahu's case [1976] 37 STC 583 (SC); AIR 1976 SC 1561, the present petitions were filed before this Court between 24th March, 1979, and 30th March, 1979. The contention in all these petitions is that the entry relating to "oil-seeds" appearing in section 14(vi) of the Central Act is virtually the same as it appeared in entry No. 7, Part I, of Schedule II of the State Act, at the relevant time, and since the commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was not right." What their Lordships seem to lay down is that in view of the evidence adduced in that case and on its own facts and circumstances, if the Sales Tax Tribunal had reached a particular conclusion (of facts), the High Court was perfectly justified in not interfering with the decision of the Tribunal so reached. In our opinion, that decision cannot be read as laying down or declaring the law that the commodities, namely, aniseed (somph*), coriander seeds (dania*), cuminseed (jeera*, safed jeera*) and fenugreek seeds (methi*), shall always be treated as oil-seeds. This decision, therefore, does not furnish any cause of action to the petitioners for the relief they have claimed in the petitions. These petitions are, therefore, liable to be dismissed on this short ground. 5.. The effect of the judgment in Dinabandhu Sahu's case [1976] 37 STC 583 (SC); AIR 1976 SC 1561 is not to render any provision of the M.P. General Sales Tax Act ultra vires or unconstitutional. That decision only says that certain commodities are oil-seeds and have to be taxed accordingly. That decision does not render any provision of the State Act as unconstitutional. It, therefore, cannot have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iana Municipality [1963] 50 ITR 187 (SC); AIR 1963 SC 1547, it was held that an assessment of terminal tax, which was questioned on the ground that the municipality applied a wrong rate of tax by wrongly determining the character of taxable commodity was not open to challenge in the civil court; but it was pointed out that if a municipality levied a tax on a commodity which was not taxable at all, a civil suit will lie; the former being a case where the municipality acts under the Act although wrongly, whereas the latter is a case where the entire action is outside the Act. Recently, in Bata Shoe Co. v. Jabalpur Municipality AIR 1977 SC 955, after a review of authorities on the subject, the Supreme Court pointed out that the circumstance that the municipality might have acted in excess of or irregularly in the exercise of that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction. It was held that questions of correctness of the assessment apart from its constitutionality are for the decision of the authorities set up by the Act and a civil suit cannot lie if the orders of those authorities are given finality. These authorities lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and laches. The judgment in Dinabandhu Sahu's case [1976] 37 STC 583 (SC); AIR 1976 SC 1561 was pronounced on 30th March, 1976. It was reported in July part of the All India Reporter of that year. These petitions were then filed just before the expiry of three years after the pronouncement of that judgment. The delay in filing these petitions is, therefore, obvious. It cannot be denied that unlike a civil suit where the claim is one of a right, the relief in a petition under article 226 of the Constitution can be denied to a party who is not vigilant of his right and does not invoke jurisdiction of the court expeditiously. It was, however, urged that from the date the judgment in Dinabandhu Sahu's case [1976] 37 STC 583 (SC); AIR 1976 SC 1561, was reported in the All India Reporter, a civil suit claiming refund would be within time in view of section 17(1)(c) read with article 24 of the Limitation Act having been filed within three years of the discovery of the mistake under which the tax is said to have been paid. It was submitted that a petition for a writ of mandamus filed within the period prescribed for a like relief in a regular suit should not ordinarily be rejected on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther easy nor desirable to lay down any rule of universal application in this behalf. Having regard to the facts and circumstances of these petitions, we are of the opinion that no satisfactory explanation has been offered for the delay in approaching this Court. These petitions are also liable to be dismissed on the ground of undue delay. 9.. There is yet another reason why the petitioners should not be granted the relief of refund of the tax; and it is this. Sales tax is an indirect tax, the incidence of which is ultimately shifted to the consumers. In all probability, the sales tax paid by the petitioners must have been recovered by them from the purchasers. It will, therefore, be not in the fitness of things to allow the petitioners refund of that tax and thus make them doubly rich. This is also the view of the Andhra Pradesh High Court where, in Gurram Sreeramulu, Garlapati Anjaneyulu Co. v. State of A.P. [1972] 30 STC 120, it was held that even if the court is satisfied having regard to all the circumstances that the petitioner is entitled to refund of the tax, the petitioner may still not be granted the discretionary relief if it results in retention of the sales tax col ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
