1. The circumstances leading to the filing of this writ petition may be breifly stated thus. The petitioner, Caltex (India) Ltd., Indore, is a dealer registered under Section 7 of the Central Sales Tax Act, 1958. For the period of assessment commencing from 1-1-1963 to 31-12-1963 the petitioner was assessed by the Assistant Commissioner of Sales Tax, Indore, by his order dated 30-10-1965. By the said order it wasdetermined that the gross turnover of inter-State sales was Rs. 2,69,675/-. Along with his return the petitioner had furnished declarations pertaining to various sales of motor spirit and lubricants amounting to Rs. 2,49,966/- in 'C' form and claimed that he was liable to be taxed on the concessional rate at 2%. However, the Assistant Commissioner of Sales Tax rejected the assessee's claim in respect of sales of Rs. 96,959/- made to M/s. G. Rai and Company, Jhansi, on the ground that the petitioner 'is not entitled to claim a concessional rate at 2% because the 'C' forms issued by the purchaser covers more than one transaction of sale exceeding Rs. 5000/- and thus provision of rule 8 of the M. P. Sales Tax (Central) Rules, 1957 is not complied with. Those will be liable to tax at the rate of 10%.' According to the petitioner, as a result of the rejection of the said declarations, the assessee became liable to pay an additional amount of Rs. 8965.23 paise as sales tax. The entire tax assessed on the petitioner was deposited on 9-12-1965.
2. In the assessment proceedings, various contentions were raised on behalf of the petitioner but the proviso to Rule 8 of the M. P. Sales Tax (Central) Rules, 1957 which reads as follows, was assumed to be a valid provision. In fact, the said provision could not be challenged as ultra vires before the sales tax authorities. Proviso to Rule 8:
'Provided that no single Declaration shall cover more than one transaction of sale, except in cases where the total amount covered by one declaration is equal to or less than Rs. 5000/- or such other amount as the Commissioner, may, by a general order, notify in the official gazette.'
3. The corresponding rule of the Central Sales Tax (Madras) Rules 1957 is 10(1). It required that no single declaration shall cover more than one transaction of sale .................. It washeld by the Madras High Court in R. Nandlal and Co. v. State of Madras, (1965) 16 STC 1 (Mad) that the lower rate of assessment could not be denied to the dealers on the basis of Rule 10(1) as it prevailed in the Madras State 'where the selling dealer was found to have complied with the essential requirement both under the Act as well as the Rules framed thereunder in the matter of supply of 'C' forms.
4. An appeal was preferred against the said decision to the Supreme Court. It held on 14-4-1967 (reported in AIR 1967 SC 1758) that it was not within the competence of the State Authorities under Sections 13(3) and 13(4) of the Central Sales Tax Act to provide that a single declaration covering more than one transaction shall not be made. Their Lordships held that such a rule could only be framed by the Central Government in exercise of the power under Section 13(1)(d) which prescribes form of declaration and the particulars to be contained in the declaration. In the said view, Rule 10 (1) aforesaid was held to be inconsistent with Section 13(1)(d) of the Central Sales Tax Act (see State of Madras v. R. Nandlal and Co., AIR 1967 SC 1758).
5. After the decision of the Supreme Court, the proviso to Rule 8 of the M. P. Sales Tax (Central) Rules, 1957, which we have quoted above in paragraph 2 of this order, was challenged in the M. P. High Court. This Court by its decision reported in Commr. of Sales Tax Madhya Pradesh, Indore v. Giria Prasad Sunderlal of Satna, (1968) 21 STC 360 (MP) held the said proviso to be unenforceable.
6- The petitioner thereafter made an application to the Commissioner of Sales Tax on 15-10-1968 drawing attention of the Commissioner to the decision of the Supreme Court referred to above and claiming refund of the amount of Rs. 8965.23 paise. The said application purported to have been made under Section 39 of the Act which deals with the revisional powers of the Commissioner.
7. The Commissioner replied to the petitioner's application on 11th March 1969 and rejected his demand for refund observing that 'there is no case for taking up the case in revision. You should have kept the issue alive yourself.'
8. The petitioner has, therefore, filed this writ petition claiming that the order annexure A made by the Assistant Commissioner of Sales Tax may be quashed in so far as it rejects the claim of the petitioner for being taxed at a concessional rate of 2%. He has further prayed for a direction being given to the respondents to refund the item of tax illegally realized from him on the aforesaid view.
9. The contention of the learned counsel for the petitioner is that as the petitioner was assessed to tax on the basis of the proviso to Rule 8 which has been held to be invalid and unenforceable, the petitioner must be held to have paid the amount of tax stated above under a mistake and he is entitled to get it back as the respondents have no authority of law for withholding payment of the said amount.
10. On the other hand, the contention advanced by the learned Government Advocate is that the impugnedorder of the Assistant Commissioner of Sales Tax was made on 30-10-1965 andpayment of tax under the said order was made on 9-12-1965. That being the position, if the petitioner wanted to urge that the tax had been illegally collected from it, the petitioner should have kept his right alive by pursuing the remedies which are provided by the Sales Tax Act and failing that he should have filed a suit within three years of the date of payment and that not having done he is not entitled to invoke the special remedy provided by Article 226. It is urged that the said remedy should be refused to the petitioner on the ground of undue delay, the petition having been filed on 5th August 1969. It was further urged that as the petitioner is a big company having its Head Office at Madras, the petitioner must be saddled with the knowledge of the judgment of the Madras High Court in (1965) 16 STC 1 (Mad) immediately after the said judgment was rendered.
11. On these arguments, the first question that arises for consideration is as to whether the claim of the petitioner would be barred by limitation if it were the subject-matter of a suit in the month of August 1969 when the writ petition was filed. It is clear that subject to the question of limitation, waiver and estoppel, money paid under mistake or coercion may be recovered under Section 72 of the Indian Contract Act. The right to relief under Section 72 extends to money paid under mistake of law, i. e. 'mistake in thinking that the money paid was due when in fact it was not due' (see Shiva Prasad Singh v. Srish Chandra Nandi, 76 Ind App 244 at p. 254 = (AIR 1949 PC 297) & Sales Tax Officer v. Kanhaiyalal Mukundlal Saraf, 1959 SCR 1350 at pp. 1361, 1362= (AIR 1959 SC 135 at pp. 141, 142). The same view was taken by the Supreme Court in the case of The State of Kerala v. Aluminium Industries Ltd., (1965) 16 STC 689 (SC) where it was held that 'money paid under a mistake of law comes within the word 'mistake' in Section 72 of the Contract Act and there is no question of estoppel when the mistake of law is common to both the assessee and the taxing authority.'
12. Under the Indian Limitation Act, 1908, a 'claim for relief on the ground of mistake was governed by Article 96 and time commenced to run from the date when the mistake becomes known to the plaintiff. (See The State of Madhya Pradesh v. Bhailal Bhai, 15 STC 450 = (AIR 1964 SC 1006) and (1965) 16 STC 689 (SC) (supra)). In both these cases it was held that Article 96 applied to a suit for recovery of money paid under a mistake of law. Article 96 has been omitted in the new Limitation Act of 1963. However, Section 17(1)(c)of this new Act provides that in the case of a suit for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it.
13. The learned Government Advocate urged that under the new Limitation Act if the petitioner was required to bring a suit, his suit would be governed by Article 24, which provides a limitation of three years for money payable by the defendant to the plaintiff for money received by the defendant, for the plaintiff's suit, and time is required to be reckoned when the money is received by the defendant. However, as this Article has to be read with Section 17, in our opinion the result would be the same, as that provided in the Act of 1908. Article 96 was not retained as it was not necessary in view of the provision made in Section 17 and not because a change in law was desired to be effected (see Limitation Act, 1963, by Chitaley and Rao, Fourth Edition, at page 900, under the heading 'Suit for money paid under mistake.')
14. The next point for consideration is as to when can the petitioner be said to have acquired knowledge of the fact that it had paid the amount of tax under a mistake of law. In our opinion, the petitioner's knowledge cannot be taken to a date earlier to the date of the Supreme Court decision, namely, 14-4-1967 (reported in AIR 1967 SC 1758). In this connection it is pertinent to note that in the petition it has clearly been averred that the petitioner came to know of the decision of the M. P. High Court in (1968) 21 STC 360 (MP) only in the month of October 1968. In his application to the Commissioner which was made shortly thereafter, the petitioner has referred to the decision of the Supreme Court. There is nothing in the return to show as a fact that the petitioner got knowledge of the decision of the Madras High Court immediately after that decision was rendered or at any time before the year 1967. Further, even if it were assumed for the sake of argument that the petitioner had knowledge of the decision of the Madras High Court in (1965) 16 STC 1 (Mad) merely on the basis of the decision of the Madras High Court it could not make an application to the Sales Tax Commissioner or any other authority for refunding the tax. It could make such an application only when the relevant rule was struck down by the Supreme Court, or by this High Court. If the limitation for suit is reckoned fromeither of these two dates, the claim will be well within time when the writ petition was filed. In this view, the question whether the suit filed within three years from the date when the mistake became known to the petitioner is not of any significance as admittedly the petition is filed within three years from the date of the decision of the Supreme Court in AIR 1967 SC 1758. We, therefore, hold that the writ petition cannot be dismissed merely on the ground of laches. Considering the ground of relief urged in this petition it would not have served any purpose if the petitioner had resorted to remedies under the Act.
15. The next question for consideration is as to whether the petitioner is entitled to any relief in this petition, In 15 STC 450 = (AIR 1964 SC 1006) it was held:
'Where 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. As a general rule it may be stated 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 payment.
The maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is leas than the period of limitation prescribed for a civil action for the remedy, but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable.'
The same view was taken by their Lordships in (1965) 16 STC 689 (SC) and Gilland Co Pvt. Ltd. v. Commercial Tax Officer, Hyderabad-Ill, (1968) 22 STC 524 (SC).
16. The learned Government Advocate placed reliance on the decision of their Lordships in M/s. Tilokchand Motichand v. H. B. Munshi, 1969 SCC 110 = (AIR 1970 SC 898) in which the majority view is that even an application under Article 32 of the Constitution could be dismissed on the ground of undue delay. That question really does not arise at all in this case as it cannot be disputed that the remedy under Article 226 is discretionary which only means that where there is avoidable delay in a case and the delay affects the merits of the claim, the High Court may hold the party to be disentitled to invoke its extraordinary jurisdiction. It is also clear that this question will have to be decided on the facts and circumstances of each case.
17. On consideration of the aforesaid authorities and circumstances of the case, we are satisfied that it is not a case in which we should insist that the petitioner should seek the relief of refund of Rs. 8965.23 paise by instituting a suit. We are clearly of the opinion that the said amount is being withheld from the petitioner without any authority of law. We are further of the view that as the writ petition was filed within three years of the date when the mistake became known to the petitioner, there is no ground for refusing relief to it.
18. In the result, we quash that part of the order of the Assistant Commissioner of Sales Tax, Indore, made on 30-10-1965, whereby he rejected the claim of the petitioner to concessional rate being charged for the sales of Rs. 96959/- and assessed the tax on these sales at the rate of 10%. We also direct the respondents to refund that amount of tax to the petitioner which was deposited by it in pursuance of the aforesaid direction in excess of the concessional rate of 2%. We, however, leave the parties to bear their own costs. The security amount shall be refunded to the petitioner.