1. This order will dispose of two writ petitions, Nos. 1443 and 1707 of 1967, in which a common question of law arises for decision. For appreciating that question, I would give the facts only in one case, i.e., C.W. No. 1707 of 1961 filed by Messrs. Adarsh Industrial Corporation, Karnal.
2. The petitioner is a partnership firm carrying on the business of extracting edible oils from sarson and other oil-seeds at Karnal. Their main business was of extraction of oil from the oil-seeds and for that purpose they secured these commodities through their commission agents from various markets. They did not file quarterly returns of purchase of oilseeds as required under the Punjab General Sales Tax Act, 1948 (hereinafter called 'the Act'), because, according to them, they were challenging the very validity of the purchase tax on the ground that the Act did not provide for a single-point taxation and the provisions of the Act permitted the levy of purchase tax at more stages than one and was, consequently, in conflict with Section 15 of the Central Sales Tax Act. The petitioner firm's case for the assessment for the year 1963-64 came up for consideration before the Assessing Authority, Karnal, on 15th of December 1966. The said authority, in spite of the various pleas raised by the petitioner firm, imposed purchase tax on the acquisitions of oil-seeds by the petitioners. Rs. 8,844.08 had been imposed as purchase tax apart from a penalty of Rs. 350, since the petitioners had not filed purchase tax return and had also failed to pay the amount of the tax. On 10th of April 1967, the Supreme Court in Civil Appeals Nos. 2386-2388 of 1966 (Messrs. Bhawani Cotton Mills, Ltd. v. The State of Punjab and Anr.) held that the levy of purchase tax under the Act was illegal. That led to the filing of the present writ petition on 29th of May 1967 in which a prayer was made that the order of the Assessing Authority dated 15th of December 1966 be quashed and a writ of mandamus be issued to the authorities concerned to refund the amount of purchase tax which had been deposited/collected from the petitioner firm.
3. In the return filed by the Assessing Authority, it was mentioned that at no stage did the petitioner-firm raise any objection that the provisions of the Act were in conflict with the provisions of the Central Sales Tax Act, The view taken by the Assessing Authority had been supported by this Court in C.W. No. 1591 of 1963, Messrs. Bhawani Cotton Mills, Ltd. v. State of Punjab, decided on 23-11-1965 (Punj.). It was admitted that the said decision was later on reversed by the Supreme Court in its judgment dated 10th of April 1967 relied on by the petitioner-firm in the writ petition. It was, however, pleaded that the petitioner-firm was not entitled to the refund of the purchase tax through writ proceedings.
4. From the pleadings of the parties, it would thus be apparent that it was admitted by the respondents that the levy of the purchase tax under the provisions of the Act was illegal in view of the Supreme Court decision dated 10th of April 1967. It was suggested by the Advocate-General, Haryana, that this writ should be adjourned for a few days, because the Government of Haryana was soon going to promulgate an ordinance validating the levy of the purchase tax. Counsel for the petitioner-firm, however, strongly opposed to this adjournment and submitted that that was no ground for adjourning the case which should be decided on the law as it now stood. I do not see any reason why these cases should be adjourned, because in the first place, it could not be said with certainty as to when the said ordinance would be promulgated and secondly, that ordinance might again be challenged as was submitted by the learned counsel for the petitioner firm.
5. Two objections were raised by the learned counsel appearing for the State: Firstly, it was submitted that the petitioner-firm had not exhausted the remedies provided under the Act by way of an appeal or revision against the order of the Assessing Authority before approaching this Court, and secondly, that, in any case, the petitioner-firm should go to a Civil Court for the recovery of the purchase tax and no writ of mandamus for the refund of the tax could be issued.
6. So far as the first argument is concerned, there is no force in the same. In view of the pronouncement of the Supreme Court, the Assessing Authority had no jurisdiction to levy the purchase tax. In other words, the petitioner-firm had been assessed to tax under a void legislation and the assessment against them was therefore, not valid and of no effect. The order of the Assessing Authority is dated 15th of December 1966 and the writ petition was filed in this Court on 29th of May 1967, i.e., after about five months of the passing of the order by the Assessing Authority and about 1 1/2 months of the decision of the Supreme Court. The order of the Assessing Authority, being without jurisdiction, could be challenged in writ proceedings, especially when the petitioner-firm was not guilty of laches.
7. As regards the second objection, the matter is concluded by a decision of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006, where it was held:
'Where sales tax, assessed and paid by the dealer is declared by a competent Court to be invalid in law, the payment of tax already made is one made under a mistake within Section 72 of the Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. In this respect, the High Court has, in exercise of its jurisdiction under Article 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.'
It may be mentioned that in the present cast the Government has not raised any prima facie triable issue as regards the availability of the relief to the petitioner-firm regarding the refund of the tax on the merits on the grounds like limitation. It is also not their case that there has been unreasonable delay on the part of the petitioner-firm to approach this Court. If that had been the position, then, as observed by the Supreme Court in the above-mentioned decision, this Court might not have issued a writ of mandamus for such payment. The only objection raised by the learned counsel for the State was that the petitioner-firm should approach the Civil Court for the purpose. There is thus no merit in this contention as well.
8. I would, therefore, accept this petition, quash the order dated 15th December 1966, passed by the Assessing Authority and as a consequential relief, issue a writ of mandamus directing the respondents to refund the amount of purchase tax illegally recovered from the petitioner-firm by them. There will, however be no order as to costs.
9. In Civil Writ No. 1443 of 1967, the petitioner, Messrs. Fateh Chand Ram Sarup, had been assessed to purchase tax for three years, 1960-61, 1961-62 and 1962-63, and the three assessment orders were Annexures 'A', 'B' and 'C' to the writ petition and were made on 22-1-1963, 22-3-1963 and 26-11-1963 respectively. The total amount of purchase tax, the refund of which is being claimed, is Rs. 12,059.57 for the three years. The writ was filed on 25th of July 1967, i.e., after about 3 1/2 months of the decision of the Supreme Court in the case of Messrs. Bhawani Cotton Mills, Ltd, C.W. No. 1591 of 1963, D/-23-11-1965 (Punj.). Apart from the two objections mentioned above, learned counsel for the State took an additional ground in this petition and submitted that the petitioner-firm was not entitled to the refund of the tax, because in their petition they had not asked for the quashing of the three assessment orders and a petition under Art. 226 of the Constitution solely for the issue of a writ of mandamus directing the State to refund the money alleged to have been illegally collected by it as tax was not maintainable, because a claim for such a refund could always be made in a suit against the authority which had illegally collected the tax. For this, reliance was placed on the Supreme Court decision in Sugan Mal v. State of Madhya Pradesh, (1965) 16 STC 398 = (AIR 1965 SC 1740).
10. It is pertinent to mention that this objection was not taken by the State in the return filed by it. Had it done so, the petitioner could have applied for making this additional prayer in the writ petition. It seems to have been left by them by inadvertence. It is noteworthy that all the three assessment orders have been filed with the writ petition. In the representation that they had made to the authorities for the refund of the tax after the decision of the Supreme Court, a prayer for quashing the illegal assessments had been made (vide Annexure 'D' to the writ petition). The mere fact that the petitioners are claiming the refund of the purchase tax assumes that after the decision of the Supreme Court in Messrs. Bhawani Cotton Mills, Ltd., the assessment orders had become void and of no effect. It is true that in the petition no specific prayer has been made for the quashing of these orders, but this, in my view, had been done due to sheer inadvertence, because otherwise there was no point in their attaching those three orders along with the writ petition. Mr. D. C. Gupta, learned counsel for the petitioner-firm, submitted that it was by mere oversight that he forgot to add this prayer in the petition and he made an oral prayer at the time of hearing that the assessment orders be also set aside. The relief claimed in the writ petition is in the following words:--
'It is, therefore, humbly prayed that the writ petition be accepted and the respondents be directed to refund the amount of Rs. 12,059.57 imposed, levied and collected as purchase tax for the years 1960-61, 1961 62 and 1962-63 from the petitioner. Any other appropriate writ, order or direction as may be just and convenient under the facts and circumstances of the case may also be issued, passed and given in favour of the petitioner and against the respondents'.
The petitioner-firm can be granted this relief because it would be covered by the words 'any other appropriate writ, order or direction as may be just and convenient under the facts and circumstances of this case may also be issued. . . .' mentioned in the prayer clause quoted above. Reference in this connection may be made to a Supreme Court decision in Satya Narain Singh v. District Engineer, P.W.D. 1962 Supp(3) SCR 105 = (AIR 1962 SC 1161). In Sugan Mal's case, relied on by the learned counsel for the State, the facts were quite different. There, the assessment orders had been quashed in appeal, but no direction was, however given by the appellate authority for the refund of tax which had been realised from the appellant, who then filed a petition under Article 226 of the Constitution for the refund of the amount which had been illegally collected from him by the Industrial Tax Officer. It was under those circumstances that the Supreme Court held that no petition for the issue of a writ of mandamus would be normally entertained for the purpose of merely ordering the refund of the money, to the return of which the petitioner claimed a right. In the present case, however. The assessment orders had not been previously quashed by the appellate authority. There is thus no substance in this contention also.
11. I would, therefore, accept this writpetition as well, quash the three assessment orders in question and as a consequential relief issue writ of mandamus directing the respondents to refund the amount of purchase taxillegally recovered from the petitioner-firm bythem. There would, however, be no order asto costs in this writ petition as well.