Skip to content


P. Thirumurthi Chettiar Vs. State of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 2013 of 1964
Judge
Reported inAIR1969Mad91; [1968]21STC489(Mad)
ActsMadras General Sales Tax Rules, 1959 - Rule 23(3); Madras General Sales Tax Act, 1959 - Sections 4; Madras General Sales Tax (Amendment) Act, 1963
AppellantP. Thirumurthi Chettiar
RespondentState of Madras and anr.
Appellant AdvocateP.R. Ranganathan, Adv.
Respondent AdvocateSpecial Govt. Pleader
DispositionPetition allowed
Cases ReferredA. Kareem Sait v. Dy. Commercial Tax Officer
Excerpt:
- .....petitioner's learned counsel contended before me that it was not necessary for the petitioner to claim refund after he actually paid the taxes. it is enough for him to have claimed a refund as soon as the tax is levied under the act. the words used in the proviso are 'tax so levied shall be refunded'. but there was a subsequent amendment by act 6 of 1963 and section 4-a was introduced to this effect: 'tax bo levied and collected under section 4 shall be refunded', and the rules were suitably amended. the importance of collection came into prominence only when the new provision came into force on 1-4-1963. at the time of the application for refund by the petitioner, it was not necessary for him to have paid the tax and then claimed the refund. in the instant case, on the dates when the.....
Judgment:
ORDER

Venkatadri, J.

1. The petitioner, who is carrying on business in cotton in Tiruppui filed this writ petition to quash an order dated 16-1-1963 refusing refund of tax paid by him and another order dated 7-7-1964, passed by the Board of Revenue rejecting his application for revision preferred against the order dated 16-1-1963. It is just necessary to state a few facts before I dispose of this writ petition.

2. The matter that led to the filing of this writ petition was an application filed by the petitioner for refund of sales-tax paid by him under the Madras General Sales Tax Act- As the petitioner was carrying on business in cotton, he was assessed under the local Act and the point for levy of sales tax is the last purchase if it is within the State. As cotton is declared goods under the Central Sales Tax Act. If the petitioner sells his cotton outside the State, he will again be assessed. In order to avoid injustice, Section 4 of the Madras General Sales Tax Act provided by a proviso that an assessee would be entitled to a refund on the tax so levied under the Central Sales Tax Act, that is, if he has paid the tax at the last purchase point and if he sells cotton outside the State and if tax is levied on that sale, he would be entitled to refund of the tax.

3. In this case, the petitioner applied for a refund from time to time in the months of August to November, 1962, His applications for refund were dismissed mainly on the ground that he did not pay part of the taxes so levied both under the Madras Act and the Central Act. When he filed a revision to the Deputy Commissioner, the order was confirmed on 29th January, 1963, The petitioner subsequently paid all the taxes and then wrote a letter dated 17-12-1963 to the assessing officer informing him that he has paid all the taxes and praying for a refund already asked for. But this letter was summarily disposed of by the Commercial Tax Officer informing the petitioner that the matter had already been settled and the revision petition filed by him had also been dismissed by the Deputy Commissioner and that the petitioner might, if so advised, seek remedy from higher authorities. This order was passed on 22-12-1963, but it was actually received by the petitioner on 28-12-1963. Under Section 35 (1) of the Madras General Sales Tax Act, he filed a revision to the Board of Revenue but it was only on 7-3-1964. When that came up before the Board of Revenue, it was rejected mainly on the ground that it was barred by limitation, and it was not disposed of on merits. Now it is to quash this series of orders that the present writ petition has been filed.

4. The learned Counsel contended before me that under the proviso to Section 4 of the Madras General Sales Tax Act, the words used are 'the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be prescribed'. The local authority framed rules under the Act Rule 23 (3) (i) which is relevant for our purpose states that such an application for refund should not be made more than three months from the date on which the movement of the goods from this State to any other State commenced. The contention of the learned Counsel for the petitioner is that such period of limitation prescribed in the rule is ultra vires, illegal and not binding on him. In support of this contention, the learned Counsel has cited the decision in Solar Works v. Employees State Insurance Corporation, : (1963)IILLJ597Mad it was observed by Anantanarayanan, J., (as he then was) which observations will be useful for our purpose, and they are to the effect that where an Act does not provide for limitation with reference to a particular matter and the delegation of the power to make rules is conferred by a section of the Act, which does not, expressly or impliedly relate to the power of prescribing time, the authority to which the power is delegated, viz., the State in this case, cannot make a rule prescribing limitation. This principle has been reiterated and followed by a Bench of this Court in Haji J, A. Kareem Sait v. Dy. Commercial Tax Officer, : AIR1967Mad171 , where the Bench observed-

'No doubt limitation is procedural but it is also substantive. A rule covering those matters cannot, therefore, be made unless it be in the exercise of specific conferment of enabling rule-making power'.

5. There is much force in the contention of the learned counsel for the petitioner that prescribing period of limitation for refund under Rule 23 (3) (i) is not valid and should be declared ultra vires, because the main Act does not prescribe any period of limitation. The words used are 'shall be refunded' and there is no period of limitation prescribed.

6. The next question that would arise is whether the petitioner is entitled to claim a refund only after he had paid the taxes. Here again, the petitioner's learned Counsel contended before me that it was not necessary for the petitioner to claim refund after he actually paid the taxes. It is enough for him to have claimed a refund as soon as the tax is levied under the Act. The words used in the proviso are 'tax so levied shall be refunded'. But there was a subsequent amendment by Act 6 of 1963 and Section 4-A was introduced to this effect: 'Tax BO levied and collected under Section 4 shall be refunded', and the rules were suitably amended. The importance of collection came into prominence only when the new provision came into force on 1-4-1963. At the time of the application for refund by the petitioner, it was not necessary for him to have paid the tax and then claimed the refund. In the instant case, on the dates when the petitioner filed his applications for refund, this amended Section 4-A was not in force and therefore the petitioner was entitled to claim refund without having paid the tax.

7. When once I come to the conclusion that the rule-making authority has no jurisdiction to prescribe a period of limitation for obtaining a refund as provided in Section 4, then the petitioner can file an application for refund without any period of limitation. In the instant case, all the authorities have found hat the petitioner had paid the taxes and was entitled to claim the refund but rejected that claim on the ground that such a claim was barred by limitation under Section 35 (1) of the Madras General Sales Tax Act. Of course, there was a delay of about a year, but in the affidavit in support of this writ petition, the petitioner has given plausible reasons for not making his claim for refund for so long. Since I am taking the view that there is no time prescribed for claiming the refund and since the petitioner has paid all the taxes due, I hold that the petitioner is entitled to claim refund.

8. In the result the writ petition is allowed. The refund application filed by the petitioner will be taken on file after the delay is excused and they will be disposed of afresh. There will be no order as to costs in this writ petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //