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TMI Blog1965 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... elivered by Sikri J. The judgment of Shah and Ramaswami JJ. was delivered by Shah J.] SIKRI J.---These are two appeals on certificates granted by the High Court of Bombay and raise the same questions of law. It is, therefore, only, necessary to give the facts in Civil Appeal No. 219 of 1964, which are as follows : Messrs. Jagmohandas Masruwala, a registered dealer under the Bombay Sales Tax Act, 1946 (V of 1946), filed Original Suit No. 10 of 1956 against the State of Bombay for recovery of Rs. 31,852-8-3 which they had paid as advance sales tax on various dates when submitting returns for the period January 26, 1950, to March 31, 1951, and interest thereon at 4 per cent., viz., Rs. 2,998. The suit was filed on the allegations that the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in examining the provisions of section 67 of the Income-tax Act which are very similar to those of section 20 of the Sales Tax Act, 1946. The High Court held that the present case must be governed by the opinion expressed by this court in State of Tripura v. Province of East Bengal. On the question of limitation, the High Court held that the case fell within the purview of article 96 of the Limitation Act and the terminus quo of that article is the date on which the mistake becomes known to the plaintiff. It expressed agreement with the court below that the mistake of law became known to the plaintiff on a date which brings the suit within the period prescribed by the law of limitation. The High Court further held that the trial court was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention. The judgment of Fazl Ali J., who dissented in the Tripura case, clearly shows that the court was fully aware of the existence of the machiney in the Act enabling an assessee to challenge an eventual assessment. But this court, in spite of the existence of that machinery, gave effect to the plain words of section 65 of the Bengal Agricultural Income-tax Act, 1944. There is nothing in Kamala Mills case which is inconsistent with the Tripura case. Further Mr. Pathak, learned counsel for the respondent, pointed out that a section similar to section 13 existed in the Bengal Agricultural Income-tax Act, 1944. Another point raised by the learned Solicitor-General was that, when a registered dealer files a return and calculates and pays t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under sub-section (4) of section 12 may have been issued and shall then refund the balance remaining, if any. " The first part of the section imposes a statutory obligation on the Commissioner to refund any amount of tax paid by a registered dealer in excess of the amount due from him under this Act. The first proviso prescribes the period within which the registered dealer can apply for refund. The period is 24 months from the date on which the order of assessment is passed or within 12 months of the final order passed on appeal in respect of the order of assessment, whichever period is later. It is apparent that the dealer cannot apply for refund under section 13 till an order of assessment is passed. The prescribed form also shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reate an implied bar and the High Court is right in holding that the suit was competent. This court has recently held that article 96 applies to suits like the present : see State of Kerala v. Aluminium Industries Ltd. The only point that remains it regarding the date of the knowledge of the plaintiff. Both courts below have found that the plaintiff came to know of the mistake on December 22, 1952, the date of the promulgation of the Governor's Ordinance. This is a concurrent finding of fact and the learned Solicitor-General has not shown us any good ground for disturbing this concurrent finding of fact. Accordingly, agreeing with the High Court, we hold that the suit is not barred. In the result the appeals fail and are dismissed with c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of section 20 or impliedly by section 13 of the Bombay Sales Tax Act, 1946. We also agree with him that the suits were not barred by the law of limitation, since the suits were filed within the period prescribed by article 96 of the First Schedule of the Limitation Act, 1908, i.e., within three years from the date on which the mistake became known to the taxpayers. We are unable, however, to agree with the observations that before the sales tax authorities an objection that certain parts of the statute were ultra vires the legislature could not be raised. As held by this court in Kamala Mills Ltd. v. State of Bombay the question whether a transaction which falls within the Explanation to article 286(1)(a) before it was amended by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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