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Kalyan Textiles Vs. Appellate Assistant Commissioner of Commercial Taxes and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberWrit Petitions Nos. 4788 and 4789 of 1968 and 3329 and 3330 of 1969
Judge
Reported in[1972]29STC381(Mad)
ActsMadras General Sales Tax Act, 1959 - Sections 55; Constitution of India - Article 226
AppellantKalyan Textiles
RespondentAppellate Assistant Commissioner of Commercial Taxes and anr.
Advocates:T. Somasundaram and ; K. Venkataswami, Advs.
Cases ReferredGovernment of Madras v. M.B.C. and T.P.C. Industrial Society
Excerpt:
- - thereafter, the petitioners had to pay local sales tax as well as central sales tax levied under the orders as above. they did not pursue the matter further but took the appellate order as final and binding on them and paid the tax as well......related to the braided cords and tapes could not be included in the assessable turnover. but the appellate authority did not accept this contention. the subject was not pursued further. thereafter, the petitioners had to pay local sales tax as well as central sales tax levied under the orders as above. it transpires that subsequent to the pronouncement of the appellate orders for the years in question, this court in government of madras v. m.b.c. and t.p.c. industrial society [1968] 22 s.t.c. 470 held the view that the braided cords are not to be subjected to sales tax either under the madras general sales tax act or under the central sales tax act. consequent upon this decision, the petitioners preferred applications for rectification under section 55 of the madras general sales tax.....
Judgment:

Ramaprasada Rao, J.

1. The petitioners are dealers doing business in braided cords, ribbons and tapes. For the years 1963-64, 1964-65 and 1965-66, the petitioners were assessed to sales tax under the Madras General Sales Tax Act and under the Central Sales Tax Act. The petitioners took up the original orders of assessment on appeal and contended that the turnover which related to the braided cords and tapes could not be included in the assessable turnover. But the appellate authority did not accept this contention. The subject was not pursued further. Thereafter, the petitioners had to pay local sales tax as well as Central sales tax levied under the orders as above. It transpires that subsequent to the pronouncement of the appellate orders for the years in question, this court in Government of Madras v. M.B.C. and T.P.C. Industrial Society [1968] 22 S.T.C. 470 held the view that the braided cords are not to be subjected to sales tax either under the Madras General Sales Tax Act or under the Central Sales Tax Act. Consequent upon this decision, the petitioners preferred applications for rectification under Section 55 of the Madras General Sales Tax Act and called upon the appellate authority to rectify its orders by correcting the mistake appearing therein. The appellate authority found no ground to revise the orders, as there was no error to be rectified therein. As against the said orders of the appellate authority refusing to rectify the orders under section 55 of the Act, these four writ petitions have been filed, two for the issue of writs of certiorari and the other two for refund of the amounts involuntarily paid by the petitioner and which payment ought to be deemed to be a payment under a mistake of law or of fact.

2. Article 226 of the Constitution cannot be used as a forum for the refund of taxes which were collected under orders of assessment properly made, at the time when they were made. It is not in dispute that the decision in Government of Madras v. M.B.C. and T.P.C. Industrial Society [1968] 22 S.T.C. 470 came in point of time later than the orders of the appellate authority. It cannot therefore be disputed that in the orders made by the appellate authority there is no error as such, to be rectified. In fact, the orders were sought to be rectified in the light of the supervening pronouncement and the only way in which the petitioners could obtain a relief is by scrapping the orders. This relief can be obtained by the petitioners by filing a regular civil suit for the purpose. Further, the petitioners cannot take advantage of a supervening decision of a court and base the same as their cause of action for obtaining a refund of money which according to them was paid under a mistake of law or of fact. They did not pursue the matter further but took the appellate order as final and binding on them and paid the tax as well. In these circumstances, the petitioners cannot be allowed to go back on their election and seek for a writ of certiorari to quash the orders of the appellate authority, which refused to rectify the order of assessment, on the ground that there was a mistake apparent in it. At the time when the orders sought to be rectified were passed, there was no error in it and, therefore, the authority acting under section 55 rightly said that there was no error in the order, for it to rectify. In these circumstances, the authority has rightly exercised its jurisdiction and the writs of certiorari, therefore, cannot lie. Writ Petitions Nos. 4788 of 1968 and 3329 of 1969 are dismissed. There will be no order as to costs. In the view that I hold that this jurisdiction cannot be availed of for getting refund of moneys, may be tax, paid by an assessee to implement the lawful order of assessment, I am unable to issue writs of mandamus compelling the respondent to refund the taxes paid by the petitioners in the manner stated above. There is no public duty on the part of the respondent to act in the matter and refund the amounts claimed. Therefore, the other two writ petitions, W.P. Nos. 4789 of 1968 and 3330 of 1969 are dismissed. There will be no order as to costs.


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