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S.S. Palanisami Nadar Vs. the State of Madras - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1186 of 1955
Judge
Reported inAIR1960Mad8; [1959]10STC207(Mad)
ActsMadras General Sales-tax Act - Sections 11, 12 to 12-D and 18-A; Code of Civil Procedure (CPC), 1898 - Sections 9
AppellantS.S. Palanisami Nadar
RespondentThe State of Madras
Cases ReferredRaleigh Investment Co. Ltd. v. Governor
Excerpt:
- - the judicial committee held that an assessment made under the machinery provided by the act is not a nullity, like an order of court lacking jurisdiction.(1) this second appeal is preferred against the decree and judgment of the learned district judge of ramanathapuram, in a. s. no. 72 of 1955, confirming the order and decree of the learned district munsif of sattur, rejecting an unnumbered plaint.(2) the plaintiff was assessed to pay sales-tax by the deputy commercial tax officer, no. 2, virudhunagar. his appeals to the commercial tax officer, ramanathapuram, and again to the deputy commissioner of commercial taxes and finally to the board of revenue were rejected. the plaintiff then filed a suit before the district munsif, sattur, contending that the order passed by the board of revenue is illegal and ultra vires and not sustainable on the merits of the case as also the orders of the officers of the sales-tax department. both the learned.....
Judgment:

(1) This second appeal is preferred against the decree and judgment of the learned District Judge of Ramanathapuram, in A. S. No. 72 of 1955, confirming the order and decree of the learned District Munsif of Sattur, rejecting an unnumbered plaint.

(2) The plaintiff was assessed to pay sales-tax by the Deputy Commercial Tax Officer, No. 2, Virudhunagar. His appeals to the Commercial Tax Officer, Ramanathapuram, and again to the Deputy Commissioner of Commercial Taxes and finally to the Board of Revenue were rejected. The plaintiff then filed a suit before the District Munsif, Sattur, contending that the order passed by the Board of Revenue is illegal and ultra vires and not sustainable on the merits of the case as also the orders of the officers of the Sales-tax department. Both the learned District Munsif and the learned District Judge, relying on the provisions of S. 18-A of the General Sales-tax Act, held that the civil court had no jurisdiction to entertain the suit, as against the specific provisions contained in Ss. 11 and 12 to 12-D of the said Act.

(3) In this second appeal I am of the same opinion as both the courts below and here are my reasons.

(4) Under Sec. 9 of the Code of Civil Procedure, civil courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Suraj Narain v. Jamil Ahmad, AIR 1946 Pat, 385; Jagannatha v. Kutumbarayadu, ILR 39 Mad 21 : AIR 1915 Mad 738; State of Bombay v. Adamjee Hajee Dawood and Co. : AIR1951Cal147 and Valli Ammal v. Corporation of Madras, ILR 38 Mad 41 : AIR 1916 Mad 1119. Sec. 18-A of the Madras General Sales-tax Act withdraws from the purview of the civil courts suits for setting aside or modifying assessments made under the said Act.

(5) In a recent Full Bench decision of this court in Public Prosecutor v. Ramalingam Pillai : AIR1958Mad544 , arising from a reference made by me, an analysis of the various provisions of the Madras General Sales-tax Act has been made, showing that it is a self-contained and comprehensive legislation which enables an assessee to question the assessment imposed on him. Hence, a person who is dissatisfied with the assessment and seeks to set it aside or modify, cannot do so before the civil court; but it will be open to him to raise before the civil court only those pleas which those authorities prescribed under the Act are precluded from entertaining.

(6) Plaint paragraph 10 states that the order passed by the Board of Revenue is illegal and ultra vires and not sustainable on the merits of the case, as also the orders of the Sales-tax officers. This cannot be agitated in a civil court and the decision of the Privy Council in Raleigh Investment Co. Ltd. v. Governor-General in Council, 60 Mad L.W. 390 : AIR 1947 P.C. 78 furnishes the answer. The Judicial Committee held that an assessment made under the machinery provided by the Act is not a nullity, like an order of court lacking jurisdiction.

Reliance of such a provision is not an excess of jurisdiction but a mistake of law made in the course of its exercise, and the suit is in truth directed exclusively to set aside or modify 'an assessment made under the Act' and hence it is not maintainable. Their Lordships further pointed out that the circumstances that the assessing officer has taken into account an ultra vires provision of the Act is, in this view, immaterial in determining whether the assessment is made under the Act. The phrase describes the provenance of the assessment and 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, It is apparent that where the form of payer did not use the very words but the substance is clear that a modification or setting aside the assessment is sought for, the plaintiff assessee has to seek the remedy provided under Secs, 11 and 12 to 12-D of the Act, which is a self-contained Act and prescribes a special machinery for the redress of the grievance. Therefore, the declaration sought for in this case cannot be regarded as having any relevancy except as leading up to the claim for repayment. Therefore the learned advocate for the appellant has not succeeded in taking this case out of the purview of the heirarchy of tribunals constituted for this purpose under the Madras General Sales-tax Act. It has been rightly held by both the courts below, that the jurisdiction of the civil court was barred.

(7) This second appeal therefore fails and is dismissed with costs. No leave.

(8) Appeal dismissed.


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