9911796707
TMI Blog1964 (11) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... andari Iron and Steel Company which had its foundry at Shilnath Camp, Indore, where it carried on the business of mechanical engineers, iron, brass and malleable iron founders and re-rollers in steel. There was in force in the Indore State, the Indore Industrial Tax Act, 1927, for the imposition of industrial tax on cotton mills. Excess profits duty was payable under the Indore Excess Profits Duty Order, 1944. The company did not run any cotton mill. Still, when the company was called upon to submit its returns and to deposit industrial tax whenever its balance-sheet showed profits, it did so. In all, the company paid a sum of Rs. 18,234-5-2 in 1944 in advance on account of industrial tax prior to the tax being provisionally assessed by the Assessing Officer. The provisional assessment for the years 1941-43 was made in 1945 and for the years 1945-46 in 1946. The tax was assessed at Rs. 62.809-5-2. Deducting the amount of Rs.18,234-5-2 deposited in advance in 1944, an amount of Rs. 44,575 was deposited by the appellant on or before June 9, 1948. The tax for different years was finally assessed in 1951 and 1952. The appellant filed appeals against the various assessment orders to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under article 226. The other is whether a writ of mandamus, if a case for its issue is made out, can be issued under article 226 for the refund of taxes collected prior to the coming into force of the Constitution, though the final assessment was made subsequent to January 26, 1950, and was later set aside by the appellate authority. On the first point, we are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. We have been referred to cases in which orders had been issued directing the State to refund taxes illegally collected, but all such cases had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the courts were moved by a petition under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e roadways buses during the relevant period. This was not a case of enforcing a contractual liability of the State Government but it was one where, in the purported exercise of its governmental power, it refused to pay tolls to the contractor though it was liable to pay such tolls under the provisions of the statute, viz., section 15 of the Northern India Ferries Act, 1878. The decision in this case cannot be used in support of the contention that a petition praying merely for a writ of mandamus for refund of tax or any money due from the State can be normally maintainable. We may also refer to Burmah Construction Co. v. State of Orissa, where it was prayed that an appropriate writ directing the State of Orissa to refund the amount of sales tax and penalty realised from the appellant be issued. Shah J., speaking for the court, said : " The High Court normally does not entertain a petition under article 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availability of consequential relief. Thus, where, as in these cases, 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. It may however be stated as a general rule 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 limitation the court should ordinarily refuse to issue the writ of mandamus for such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of completion of the final assessment. This rule does not provide that in case the appellate authority sets aside the final assessment, the tax realised be refunded to the assessee on his application within any specified period of time. The High Court is therefore right in saying that the appellant has no right, under any statutory law, to the refund of the tax paid and that no duty is cast on the State to refund the amount it had realised which has been subsequently found to be not in accordance with law. The mere order of the appellate authority that the tax collected was not authorised by any law is not a decision to the effect that the State is to return the amount to the assessee nor can it be taken to amount to a law making it incumbent on the State to refund the amount to the assessee. Reference is made to section 72 of the Contract Act for the contention that the State is duty bound to return the amount to the appellant. Whether the case of the appellant falls under the provisions of that section would be a point for decision in a regular suit and not in the proceedings under article 226. In the circumstances of the case already narrated, there may be such defences, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
