MEHROTRA C.J. - This is a plaintiffs appeal. The brief facts are that the plaintiffs No. 1, a Hindu undivided family, has its principal place of business in Tinsukia and plaintiff No. 2, Sri Durga Dutta Lohia, is the managing coparcener and karta of the said family. They own a Tea Garden named "Sewpur Tea Estate". In 1942, the factory buildings, tea-house, labour and staff quarters and other appurtenances thereto were requisitioned and taken possession of by the military authorities under the Defence of India Rules. The authorities remained in position thereof till 1945, when the properties were derequisitioned. The plaintiffs had to maintain the garden but could not carry on the manufacture work on account of requisition. The plaintiffs were paid a sum of Rs. 2,99,224 as compensation money for the loss of crops for the year 1942 in respect of the said garden. The income-tax authorities, after deducting the expenses allowed under the law, assessed the net income at Rs. 69,716 in respect of the aforesaid tea estate. The Agricultural Income-tax Officer, on the basis of this calculation, assessed sixty per cent. of the above sum to agricultural income-tax. Thus a sum of Rs. 5,371-14-0 was demanded as agricultural income-tax from the plaintiffs on account of the said income by an assessment order dated December 23, 1947.
The plaintiffs deposited the aforesaid amount in the Government Treasury by a challan dated the 8th May, 1948. For the year 1943 a similar compensation paid by the military authorities was assessed to agricultural income-tax. Against the aforesaid assessment for the year 1943, an appeal was preferred before the Appellate Assistant Commissioner and finally a reference was made to the High Court of Assam on various points. This reference was decided by this court on the 19th August, 1952, and it was held by this court that the compensation received from the military authorities did not represent agricultural income and was not assessable as agricultural income. It is on account of this decision that the plaintiffs case is that the realisation of the tax for the year 1942 was illegal and without jurisdiction. The plaintiffs moved the Government of Assam for refund of the said sum but their prayer was rejected by a letter dated 24th February, 1954. Thereafter, the present suit was filed on the 15th June, 1955, for recovery of the sum of Rs. 6,661-2-0 comprising of the sum of Rs. 5,371-14-0, the principal, and Rs. 1,289-4-0 as interest. The suit was filed after giving due notice under section 80, Civil Procedure Code, on the 5th January, 1955.
The suit was defended on various grounds of law and facts. The main contention raised by the defendant on which the suit has been dismissed is that the suit is not maintainable in view of the provisions of section 44 of the Assam Agricultural Income-tax Act (Assam Act IX of 1939) (hereinafter called the Act). Section 44 of the Act reads as follows :
"44. No suit shall be brought in any civil court to set aside or modify any assessment made under this Act, and no prosecution, suit or other proceedings shall lie against any officer of the Government for anything in good faith done or intended to be done under this Act."
This section has two parts. The first part deals with the bar of a suit to modify or set aside any assessment made under the Act and the second part provides for the immunity from action against an officer of the Government for anything done in good faith or intended to be done in good faith under the said Act. Section 9 of the Civil Procedure Code lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. The only question, therefore, is whether the jurisdiction of the civil court to entertain the present suit is expressly barred by the provisions of section 44 of the Act.
For the assessment year 1943-44 plaintiff No. 1 submitted a return for the account period 1942 along with a certified copy of the central assessment order on the basis of which the Agricultural Income-tax Officer made the assessment and the amount was deposited by the plaintiffs without any objection. No appeal was filed against the Central assessment order or against the order of the Agricultural Income-tax Officer. A petition of revision before the Commissioner of Agricultural Income-tax under section 27 of the Act was however filed after a long time which was rejected. Thereafter, the plaintiffs filed a petition before the Board of Agricultural Income-tax under section 28 of the Act asking the Board to refer the matter to this court. This petition was rejected. This court was then moved under section 28 of the Act but the petition was rejected.
The contention of the plaintiffs is that as both the parties were under a mutual mistake of law, the amount was deposited without protest by the plaintiffs and accepted by the respondent. The mistake was discovered only when this court in the year 1952 expressed its opinion in favour of the assessee on a reference in respect of the income of the year 1943. Any mistake of law or fact gives a right to a party to recover the amount paid under the said mistake. It is contended that the law having been laid down by this court in the year 1952 the assessment order was without jurisdiction and thus it is not an assessment within the meaning of section 44 of the Act. Section 44 thus is not attracted to the suit. It should also be pointed out at this stage that for the later period when the income-tax department assessed the amount of compensation received by the plaintiffs from the military department, the matter was taken up to the Supreme Court and finally their Lordships of the Supreme Court held that the said compensation was not a revenue receipt and thus could not be taxed. It is urged that finally the law was laid down by their Lordships of the Supreme Court. In any view of the matter the assessment in question was without jurisdiction and thus the suit is maintainable.
The defendant also raised the question of limitation. The trial court, however, has held that in view of its decision on the maintainability of the suit it was not necessary to decide the question of limitation. It is urged by the appellants that if it is found that the suit is maintainable, the suit will be within limitation prescribed under article 96 of the Limitation Act and the starting point of limitation will be the 19th August, 1952, when the mistake was known to the parties.
"Agricultural income" has been defined under section 2(a) of the Act. The Explanation to section 2(a)(2) provides that :
"Agricultural income derived from such land by the cultivation of tea means that portion of the income derived from the cultivation, manufacture and sale of tea is defined to be agricultural income for the purposes of the enactments relating to Indian income-tax."
Section 3 is the charging section and the agricultural income is chargeable to income-tax. Section 8 provides for the determination of agricultural income mentioned in sub-clause (2) of clause (a) of section 2. The return of agricultural income is to be filed under section 19 and section 20 provides for the assessment of the said income. Section 24 provides for an appeal against an order of assessment, section 26 provides for a second appeal and section 27 provides for revision. Section 28 provides for reference to the High Court by the Board and section 29 provides for an appeal from the decision of the High Court to the Supreme Court. Section 44 which is the relevant section has already been quoted in the earlier part of my judgment.
The contention raised by the appellants is that as the compensation money has been held by this court not to be an agricultural income, it is not liable to tax under section 3. The jurisdiction of the agricultural income-tax authorities to assess income depends upon the income being an agricultural income and, as it has now been found by the High Court that the compensation amount is not an agricultural income, the assessment by the assessing authorities was without jurisdiction. In effect it is no assessment under the Act and the suit will not be barred under section 44 of the Act.
It will be convenient to refer to some of the authorities cited at the bar in this connection. In the case of Sugar Syndicate v. Excise and Taxation Commissioner, the Sugar Syndicate imported sugar and sold it and thus was liable to pay sales tax under sub-section (2) of section 4 of the East Punjab General Sales Tax Act on the sales effected after the 31st March, 1950. The Syndicate, however, filed returns relating to periods prior to the 31st March, 1950, and paid tax on the sales. In 1952 having discovered that the said sales were not liable to tax the petitioner applied for refund of this amount. This application was rejected as it was filed beyond time. Having failed to get any redress from the sales tax authorities the petitioner filed an application under article 226 of the Constitution for a mandamus directing the Excise and Taxation Commissioner to refund this amount. The application was allowed. It was held by the Punjab High Court that the High Court should not hesitate to exercise its powers under article 226 of the Constitution to grant the necessary relief whenever a tax is illegally collected from a citizen of India. It would be a travesty of justice to compel a person to pay a tax which he is not legally bound to pay or to refuse to refund the tax illegally collected on merely technical grounds. The plea raised by the department that the alternative remedy was available was rejected. This case is not an authority for the proposition that if a tax has been legally realised, a suit could be brought for refund of the said amount if subsequently for another period it was held that the income is not taxable. The tax realised in the Punjab case was obviously without jurisdiction but the order of assessment in the present case was based on the return filed by the petitioner himself. Besides this, the bar of a suit does not apply to powers of the High Court under article 226 of the Constitution.
In the case of State of Uttar Pradesh v. Kanhaiyalal Makund Lal Sarraf which was subsequently affirmed by their Lordships of the Supreme Court in the year 1959, on an application under article 226 of the Constitution the sales tax department was directed to refund the sales tax illegally received from the petitioners. The petitioners in that case had paid sales tax for several years. It was held later by the High Court that the provisions of the U. P. Sales Tax Act purporting to impose a sales tax on forward contracts were ultra vires. The petitioners thereafter applied for the refund of the tax which they had paid on the assumption that the forward contracts for sale were taxable. The application was refused and thereafter petitions were filed in the High Court under article 226 of the Constitution. Two reliefs were claimed in the High Court, firstly, that the assessment made was without jurisdiction as the forward contracts were held to be taxable and further for a mandamus directing the authorities to refund the amount.
It should be pointed out that the High Court had held the provisions of the Sales Tax Act to be ultra vires in connection with the assessment of previous years. The relief given by the High Court that the assessment was illegal was not challenged. The department challenged that the refund of the tax already paid could not be allowed. It was contended that under section 72 of the Contract Act the mistake contemplated is one of fact and not of law. This contention was repelled by the High Court and their Lordships of the Supreme Court held that the mistake contemplated under section 72 of the Contract Act is both a mistake of law as well as of fact. This case is thus distinguishable. There the provisions of the Act under which the assessment was made were held to be ultra vires and thus the assessment was without jurisdiction and, secondly, the relief claimed was by means of a petition under article 226 of the Constitution and provisions similar to section 44 of the Act thus could not be relied upon as a bar to the maintainability of the petition under article 226 of the Constitution.
The case of Indian Steel and Wire Products Ltd. v. Superintendent of Commercial Taxes also related to a case where the assessment was without jurisdiction and the refund was claimed by means of a petition under article 226 of the Constitution.
In the case of State of Vindhya Pradesh v. Raghunath Mannulal, a suit was brought for the refund of the money deposited by the plaintiff in July, 1950, on account of sales tax. The sales tax was subsequently declared to be illegal. It was held :
"There is general jurisdiction of the civil court but for certain acts done under certain special statutes the jurisdiction of the civil court is restricted and vested in special authorities under those statutes. But if the assessment or act concerned is one which cannot be done under the special statute then the general jurisdiction of the civil court remains and the special jurisdiction cannot be invoked. To put it in other words, if the sales tax authority has jurisdiction under V. P. Ordinances and has exercised it, may be wrongly, then the aggrieved party cannot go under section 21 to the civil court, but should go to the tribunal mentioned in the sales tax statute itself. If, on the other hand, this authority had acted without jurisdiction, then the aggrieved party must go to the civil court, because its grievance is a general grievance and not one under the special law."
No objection can be taken to this proposition of law. If the assessment is without jurisdiction on the ground that the provision under which the assessment has been made is itself ultra vires, the assessment cannot be regarded to be one under the Act and thus the civil courts jurisdiction is not barred. But where the assessment has been legally made even though the authority may have decided wrongly certain questions of law, that will not render the assessment order without jurisdiction and the remedy of the assessee in such cases will only be to approach the authorities under the Act.
In the case of State of Andhra Pradesh v. Sri Krishna Cocoanut Co., it was held as follows :
"Suits to recover sales tax paid on the ground that the officer had no jurisdiction to collect the amount having regard to the clear terms of article 286(1)(a) of the Constitution are cognizable by the civil courts. Section 18A of the Act does not apply to such suits."
This was also a case where on the face of it the collection of tax by the authority was without jurisdiction in view of the provisions of the Constitution. In the case of State of Andhra Pradesh v. Firm of Illur Subbayya Chetty and Sons the Full Bench of the Andhra Pradesh High Court held that a suit for the refund of sales tax is within the prohibition enacted in section 18A of the Madras General Sales Tax Act.
Reference was then made to the case of Balkishen Das v. Simpson, in which a suit was brought for setting aside a revenue sale and in defence it was pleaded that the civil courts cognizance was barred under section 33 of the Act (XI of 1859) by reason of the Commissioner not having adjudicated on the objection to the sale. It was held by their Lordships of the Privy Council that the suit was maintainable. After examining the provisions of the Act, their Lordships observed as follows :
"The enactments of 1859 and 1868 are obviously intended to apply to cases in which if the irregularity or illegality of the sale proceedings alleged by the objector be negatived, the sale will remain valid. But the chief and substantial objection upon which the appellants plaint is based is, that at the time when their 5 annas share of the village Shahzadpore Anderkilla was sold, there were no arrears of revenue due by them in respect of it... In Their opinion a stupid blunder made by the Collector or his staff in his own books cannot deprive the appellants of their right to claim, and have effect given to, the permanent abatement which was allowed by the Board of Revenue in March, 1884. The result is that the whole proceedings of the Collector, with a view to the sale of the 5 annas share, were beyond his jurisdiction, and are not entitled to the protection given him by the Act in cases where sale is authorised, although it may be attended with some irregularity or illegality."
It was held by their Lordships that the entire proceedings were without jurisdiction and it was not a case of any wrong decision on a question of law by the authority. Moreover the provisions of section 33 do not appear to be similar to the one in question before us.
Reliance has been placed on the following observations in the case of Secretary of State v. Mask & Co. :
"The exclusion of the jurisdiction of the civil courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
On the facts of that case it was held by their Lordships that the jurisdiction of the civil court was barred. As was observed by their Lordships in this very case :
"The determination of this question must rest on the terms of the particular statute which is under consideration, and decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid down."
The next case referred to is State of Tripura v. Province of East Bengal . The facts of this case were that the Bengal Agricultural Income-tax Act was passed by the provincial legislature of Bengal in 1944. It applied to the whole of Bengal and purported to bring under charge the agricultural income of, inter alia, "every Ruler of an Indian State". Acting under the provisions of that Act, which came into force on 1st April, 1944, the Income-tax Officer, Dacca Range, sent by registered post, a notice to the manager of the zamindari estate called Chakla Roshanabad belonging to the Tripura State, but situated in Bengal outside the territories of that State, calling upon him to furnish a return of the of the total income derived in the previous year from lands in the estate used for agricultural purposes. Thereafter a suit was brought on the 12th June, 1945, against the Province of Bengal and the Agricultural Income-tax Officer, Dacca Range, in the court of the First Subordinate Judge, Dacca, contesting the validity of the notice and the proposed assessment on the grounds that the
"Provincial Legislature of Bengal had no authority to impose tax on any income of an Indian State or its Ruler" and that, in any case,
"the Income-tax Officer, Dacca range, had no authority or jurisdiction to issue the said notice to the manager of the estate outside British India."
Mainly the relief claimed was that the Bengal Agricultural Income-tax Act in so far as it purports to impose a liability to pay agricultural income-tax on the plaintiff as the ruler of an Indian State was ultra vires and void and that the notice served was illegal. A perpetual injunction was claimed restraining the defendants from taking any steps to assess the plaintiff to agricultural income-tax. The suit was pending in the court of the Subordinate Judge of Alipore when the partition of India took effect on the 15th of August, 1947. The main defence taken was that the suit was not maintainable on various grounds. Dealing with the argument that even assuming that the service of the notice calling for a return of income was a wrongful act it was not "actionable" as section 65 of the Bengal Agricultural Income-tax Act bars a suit in a civil court to set aside or modify any assessment made under the Act, their Lordships of the Supreme Court held that the suit in question was not a suit to set aside or modify an assessment made under the Act as no assessment had yet been made when it was instituted. The decision of the Privy Council in the case of Raleigh Investment Co. v. Governor-General in Council was distinguished on the ground that in the case before their Lordships of the Privy Council the relief was for repayment of the tax alleged to have been wrongly levied under colour of an ultra vires provision under the Indian Income-tax Act. This case is thus distinguishable.
The present case in our judgment is governed by the decision of their Lordships of the Privy Council in Raleigh Investment Co. v. Governor-General in Council. In this case certain taxes assessed on the appellant was paid under protest. A suit was brought by the appellant for (a) a declaration that certain provisions of the Income-tax Act on which the assessment was based were ultra vires and so the assessment was illegal, (b) an injunction restraining the income-tax department from making the assessments in future and (c) repayment of the sum assessed. It was held that the suit was barred by the provisions of section 67 of the Indian Income-tax Act. The provisions of the said section are similar to section 44 of the Act. It was observed by their Lordships that :
"In their Lordships view it is clear that the Income-tax Act, 1922, as it stood at the relevant date, did give the assessee the right effectively to raise in relation to an assessment made on him the question whether or not a provision in the Act was ultra vires.
In their Lordships view the construction of the section is clear. Under the Act the Income-tax Officer is charged with the duty of assessing the total income of the assessee. The obvious meaning, in their Lordships opinion the correct meaning of the phrase, assessment made under this Act" is an assessment finding its origin in an activity of the assessing officer acting as such The circumstance that the assessing officer has taken in to account an ultra vires provision of the Act is in this view immaterial in determining whether the assessment is, made under this Act The phrase describes the provenance of the assessment : it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test.......... no distinction can for the purpose in hand be drawn between an assessment giving effect to an ultra vires provision an assessment giving effect to a wrong construction of a provision to which no objection based on vires can be taken.......
In form the relief claimed does not profess to modify or set aside the assessment. In substance it does, for repayment of part of the sum due by virtue of notice of demand could not be ordered so long as the assessment stood"
This judgment it is conceded by the counsel for the appellants fully supports the contention of the respondent. In our judgment, therefore, section 44 in express terms bars the jurisdiction of the civil court to set aside or modify an assessment made under Act. The suit in the present case is one for setting aside of assessment. No order for refund for favour of the plaintiffs could be passed unless the assessment order was set aside. It cannot be said in the present case that the assessment was not made under Act inasmuch as the assessment was made in pursuance of the provisions of the Act or that it was ultra vires or by an authority which was under Act not competent to collect the tax. Even if the authority which was competent to assess the petitioner took a wrong view of law and held certain income to be an agricultural income, it cannot be said that assessment was without jurisdiction The effect of the subsequent judge of this High Court was only to render the assessment order to be one based on an error of law. But it cannot be said without jurisdiction. It is also clear from the perusal of the authorities that the jurisdiction of this court in proper case to grant the relief of certiorari under article 226 of the Constitution is not affected by the provisions of section 44 of the Act. In our opinion, therefore, the jurisdiction of the civil court was barred by the provisions of section 44 of the Act. In this view of the matter it is not necessary for us to decide question of limitation.
We are, however of opinion that even if we had held the to be maintainable the suit was clearly barred by limitation.
The contention of the appellants is that article 96 of Limitation Act is attracted in this case. Article 96 will apply to the transaction in the nature of contracts. But even assuming that article 96 is attracted, it cannot be said that the mistake in the present case was discovered in the year 1952 when the judgment of the High Court was passed. The contention of the petitioner mainly is that by virtue of the decision of the High Court in the year 1952 the assessment made earlier was without jurisdiction. Thus the order from the very inception was void and in the absence of anything to the contrary the mistake must be deemed to have been known to the appellants on the date when a void order of assessment was made. The starting point of limitation under article 96 of the limitation Act could not thus be the 19th August, 1952 - the date of this courts judgment. In any view of the matter the appeal must fail and is dismissed with costs.
S. K. DUTTA J. - I agree.