TMI Blog2012 (10) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the petitioners can get adequate redress against the wrongful acts complained of - The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution - where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of – thus, no relief of refund can be granted to the petitioner even if it did make the payment of tax to the Sales Tax Department under a mistake of law and even if it could bypass the statutory remedy as it has approached the court with laches – Decided against petitioner. - W.P. Nos. 292- 300 of 2007 - - - Dated:- 3-10-2012 - GODA RAGHURAM AND RAMACHANDRA RAO M.S., JJ. For the Appellant : S.R. Ashok For the Respondents : Balaji Varma, Special Commercial Tax Department, ORDER :- The order of the court was made by M.S. RAMACHANDRA RAO J.- In these writ petitions, all filed by the same petitioner, substantially the same issues are raised and hence they are dealt with together and a comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. Pending such decision, the South Central Railway was directed not to take any coercive steps against the petitioner. Thereafter the South Central Railway issued a letter dated May 6, 2005 to the petitioner stating that the Commercial Tax Department has not refunded the amount of ₹ 74,98,420 which was the excess remittance of sales tax by the petitioner on account of items supplied free during the period 1997 to 2001 and therefore it is proposing to adjust the said excess payment of sales tax by withholding the sales tax component payable to the petitioner from its running bills against the ongoing contracts. The petitioner thereafter filed W.P. No. 15952 of 2005 in the High Court to declare the action of the South Central Railway in recovering the sales tax already paid by the petitioner to the Commercial Tax Department including the proposed recovery of ₹ 74,98,420 from the running bills of the petitioner as illegal and arbitrary and sought a consequential direction to the South Central Railway to refund the amounts already deducted forthwith together with interest at the rate of 24 per cent per annum. On October 5, 2005, the said writ petition was dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or counsel for the petitioner contends that the collection of sales tax from the petitioner by the Commercial Tax Department on the items supplied free to the petitioner by the South Central Railway is illegal and therefore the petitioner is entitled to refund of the amounts collected by the Commercial Tax Department for the various assessment years by setting aside the order dated August 31, 2006 rejecting the application under rule 50 of the Rules framed under the Andhra Pradesh General Sales Tax Act, 1957. He also relied on Commissioner of Central Excise (Appeals), Bangalore v. KVR Construction [2012] 50 VST 469 (Karn) and contended that payment made to the State under mistake by an assessee which he is not liable to pay as per law has to be refunded to the assessee. The Special Government Pleader for Commercial Taxes, however contended that the petitioner had filed monthly returns for the above assessment years disclosing the turnovers relating to high tensile steel wire, malleable cast iron inserts, etc., supplied free of cost by the South Central Railway without objecting to the levy of tax on them, that the petitioner in his returns had never mentioned the proportion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [1859] 6 CB (NS) 336 at 356 in the following passage: 'There are three classes of cases in which a liability may be established founded upon statute . . . But there is a third class, viz., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue when it had not indicated in its returns which part of its turnover is attributable to the items supplied free by the South Central Railway. The applications for rectification under rule 50 of the Rules framed under Andhra Pradesh General Sales Tax Act, 1957 were filed only on January 16, 2006 and the same were rightly rejected by endorsement dated August 31, 2006 on the ground that there is no clerical or arithmetical mistake apparent from record. The filing of these applications and their rejection will not give cause of action to the petitioner to seek refund of tax paid by it mistakenly to the Commercial Tax Department by filing these writ petitions when such tax was paid by it long prior to the filing of the writ petitions on January 2, 2007. Also in W.Ps. Nos. 293 of 2007, 294 of 2007, 296 of 2007, 297 of 2007, 299 of 2007 and 300 of 2007 (six out of nine writ petitions decided by this common order), the assessment orders were passed on January 19, 2002 (assessment year 1999-2000), December 4, 2000 (assessment year 1998-99), August 20, 1999 (assessment year 1997-98 CST), March 27, 2001 (assessment year 1998-99 CST), January 19, 2002(assessment year 1999-2000) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. A case may be brought within the Limitation Act by reason of some article but this court need not necessarily give the total time to the litigant to move this court under article 32. Similarly in a suitable case this court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. In Municipal Corporation of Greater Bombay v. Bombay Tyres International Limited [1998] 4 SCC 100 also, the Supreme Court held that in ascertaining what is the reasonable time for claiming refund, the courts have often taken note of the period of limitation prescribed under the general law of Limitation for filing of suits for recovery of amount due to them. In Challa Appa Rao Co. v. Commercial Tax Officer [1970] 25 STC 256 (AP), a Division Bench of the Andhra Pradesh High Court, held as follows (pages 265-267 and 270 in 25 STC): 12. What, in our view, emerges from these cases is that (1) where a suit under section 72 of the Indian Contract Act will lie to recover moneys paid under mistake, a writ petition for refund of tax within the period of limitation prescribed under arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r money within the period of three years, analogous to the period fixed in article 96 of the Limitation Act, 1908. As long as the order of assessment stands, the amount paid cannot be said to be an amount paid under a mistake of law. The only remedy is to have that order set aside or quashed either by the ordinary procedure prescribed in the statute itself, or by recourse to a petition under article 226, to quash it by a writ of certiorari. ... 21. '. . . In our view, the applications under article 226 of the Constitution will be entertained only if they are filed within a reasonable time from the date of the making of the order. Ordinarily, a period of six months may be considered reasonable; but in extraordinary circumstances, this court may, in its discretion, excuse delay. Otherwise, while periods of limitation are fixed for every form of remedy available to a party, there will not be any time-limit for the exercise of the extraordinary jurisdiction of this court. The exercise of power under article 226 by a court irrespective of any time lag will introduce complications and unsettle rights finally decided by authorities empowered to do so'. In view of the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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