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K.T. Kadirappa and Brothers Vs. the Commissioner of Commercial Taxes, Mysore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2836 of 1967
Judge
Reported in[1971]27STC431(Kar)
ActsHealth Cess Act, 1962; Mysore Sales Tax Act, 1957
AppellantK.T. Kadirappa and Brothers
RespondentThe Commissioner of Commercial Taxes, Mysore
Appellant AdvocateA. Jagannatha Shetty, Adv.
Respondent AdvocateR.S. Mahendra, Government Pleader
Excerpt:
.....filing of appeal-limitation - last date for filing appeal was a holiday held, filing on next working day would be taken to be within time. - the powers of the commissioner of commercial taxes are derived under the mysore sales tax act and as his action cannot be supported by any of its provisions, the impugned order, clearly, is illegal and without jurisdiction......the appeal and issued a mandamus directing the respondents to the said appeal to refund the health cess illegally collected under the health cess act, 1962, from the petitioner. the decision of the supreme court was rendered on 26th september, 1966, and the same is reported in shinde brothers v. deputy commissioner, raichur, and others : [1967]1scr548b . 2. after the decision of the supreme court the petitioner sent an application dated 7th july, 1967, to the commissioner of excise who was one of the respondents before the supreme court for refund of the health cess. on receipt of the said application the commissioner of excise in mysore, bangalore, issued a notice to the petitioner in september, 1967, to show cause as to why the health cess refundable to the petitioner should not.....
Judgment:

Govinda Bhat, J.

1. The petitioner is a firm of excise contractors. The said firm paid health cess on shop rental. The said levy was challenged by the petitioner, among others, by a writ petition filed before this court. Against the decision of this court, the petitioner preferred C.A. No. 1595 of 1966 to the Supreme Court of India, who allowed the appeal and issued a mandamus directing the respondents to the said appeal to refund the health cess illegally collected under the Health Cess Act, 1962, from the petitioner. The decision of the Supreme Court was rendered on 26th September, 1966, and the same is reported in Shinde Brothers v. Deputy Commissioner, Raichur, and Others : [1967]1SCR548b .

2. After the decision of the Supreme Court the petitioner sent an application dated 7th July, 1967, to the Commissioner of Excise who was one of the respondents before the Supreme Court for refund of the health cess. On receipt of the said application the Commissioner of Excise in Mysore, Bangalore, issued a notice to the petitioner in September, 1967, to show cause as to why the health cess refundable to the petitioner should not be set off or adjusted towards the sales tax due from the sub-contractors of the petitioner. The petitioners submitted their objections wherein they contended that they are not liable for the sales tax assessed on the sub-contractors. An oral hearing was given to the petitioner's counsel. After hearing, the respondent - the Commissioner of Commercial Taxes - made the impugned order dated 20th October, 1967, by which he overruled the objections of the petitioner and ordered that a sum equivalent to the sales tax arrears due by the sub-lessees of the petitioner shall be withheld from the total amount of health cess refundable to the petitioner.

3. Aggrieved by the said order, the petitioners have preferred the above writ petition wherein they have sought, among other reliefs, a writ in the nature of certiorari quashing the impugned order made by the respondent. At this stage, it may be stated that Shri A. Jagannatha Shetty, the learned counsel for the petitioner, did not press the other reliefs prayed for in the writ petition.

4. The contention urged by the learned counsel for the petitioner is that the impugned order made by the respondent is wholly without jurisdiction. The Commissioner of Commercial Taxes is a statutory authority constituted under the Mysore Sales Tax Act, 1957. His powers are as provided under the said Act. The Mysore Sales Tax Act confers no jurisdiction on the Commissioner of Commercial Taxes to adjust the sales tax due from an assessee towards the amount refundable to another person by the Government. The learned Government Pleader has not shown us any statutory provision which empowers the respondent to make the impugned order. It was submitted by him that the order was made in exercise of his administrative powers. The powers of the Commissioner of Commercial Taxes are derived under the Mysore Sales Tax Act and as his action cannot be supported by any of its provisions, the impugned order, clearly, is illegal and without jurisdiction. Therefore, we allow this writ petition in part and quash the impugned order made by the respondent on 20th October, 1967.

5. The learned counsel or the petitioner has not pressed for the other reliefs regarding mandamus for a direction to pay the amount withheld since they cannot claim the said reliefs against the respondent.

6. No costs.

7. Petition partly allowed.


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