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Parry and Company Limited Vs. the State of Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Writ Petition No. 3544 of 1969
Judge
Reported in[1973]30STC168(Mad)
AppellantParry and Company Limited
RespondentThe State of Madras and ors.
Appellant Advocate V.K.T. Chari, Adv. for ;King and ;Partridge, Advs.
Respondent Advocate K. Venkataswami, First Assistant Government Pleader for Respondents 1 and 2 and ; P. Jayaram, Adv. for ;Standing Counsel for Central Government for Respondents 3 and 4
DispositionPetition dismissed
Cases ReferredKuppuswami Chettiar v. State of Madras
Excerpt:
- - we are inclined to think that article 226 of the constitution is not intended to circumvent other remedies where they can well be resorted to. they would, therefore, be entitled to avail themselves of the other remedies and plead that they have been agitating for their rights in another forum, like the high court in exercise of its extraordinary jurisdiction under article 226 and gain an advantage for themselves if it is possible for them......to the revenue, nor did the petitioners have any grievance over the alleged impropriety of the final order of assessment. but, relying upon a decision of the supreme court in khosla and co. (private] limited v. deputy commissioner of commercial taxes : [1966]3scr352 which was rendered on 18th january, 1966, the petitioners have come up to this court, in january, 1969, for the issue of a writ of certiorari or any other appropriate direction to quash the order dated 15th march, 1968, which relates to the assessment year 1966-67, on the ground that they are entitled to a refund of the moneys paid over by them to the revenue, or in the alternative, for a re-investigation of the record and the facts therein to find whether the levy of tax was under a mistake of fact and if so whether the.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. The petitioners were finally assessed under the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as the Act), for various years including the assessment year 1966-67 with which we are concerned in this writ petition. The petitioners admit that they have collected sales tax from their customers and remitted the same to the revenue. It is common ground, that the petitioners did not claim any exemption in the matter of remission of such sales tax collected by them and paid over to the revenue, nor did the petitioners have any grievance over the alleged impropriety of the final order of assessment. But, relying upon a decision of the Supreme Court in Khosla and Co. (Private] Limited v. Deputy Commissioner of Commercial Taxes : [1966]3SCR352 which was rendered on 18th January, 1966, the petitioners have come up to this court, in January, 1969, for the issue of a writ of certiorari or any other appropriate direction to quash the order dated 15th March, 1968, which relates to the assessment year 1966-67, on the ground that they are entitled to a refund of the moneys paid over by them to the revenue, or in the alternative, for a re-investigation of the record and the facts therein to find whether the levy of tax was under a mistake of fact and if so whether the tax ultimately collected and paid over be refunded.

2. No doubt, this court in Asea Electric (India) Private Limited v. Joint Commercial Tax Officer [1969] 23 S.T.C. 160 took the view that notwithstanding the discovery of a mistake of law long after the passing of the order of assessment and after it has become final, by virtue of the ratio in Khosla's case : [1966]3SCR352 the petitioners would be entitled to such refund. Apparently, that was decided on the facts and circumstances disclosed by the record and approved by counsel before it. But, after Asea Electric's case was decided, myself sitting in a Division Bench with Ramanujam, J., and the learned Chief Justice sitting along with Gokulakrishnan, J., after a complete review of these difficult situations which arose under similar circumstances, held the view that if there has been inordinate delay in the matter of the process taken by the aggrieved party or if the record discloses that the petitioner never expressed the view or opinion that the final order of assessment was in any way irregular or illegal, then rarely the discretion of this court should be exercised under Article 226 of the Constitution so as to quash an order which has become final and undo things which have become settled. To refer to the passage in Mohamed Salam v. Commissioner of Commercial Taxes [1970] 26 S.T.C. 163 the learned Chief Justice, speaking for the Bench, said:

We are inclined to think that Article 226 of the Constitution is not intended to circumvent other remedies where they can well be resorted to. These are not the cases where other remedies are inadequate or unsuitable or the imminence of the situation warrants immediate relief under Article 226 of the Constitution. Apart from these considerations, inasmuch as the orders of assessments were made more than four or five years before, or even more in some of the cases, the long delay in resorting to this court is also a factor dissuading it from exercising its discretion. We feel justified in taking that view having regard to the ratio of the majority opinion of the Supreme Court in Tilokchand Motichand v. H.B. Munshi [1970] 25 S.T.C. 2S9 (S.C.). In our opinion, the question of refund is not to be approached solely from the standpoint of fundamental rights and the powers in the abstract of this court to give relief in that context. As we said, the issuance of mandamus for refund being in the discretion of the court, in exercising it, the court should bear in mind the other factors and circumstances, not only the payment having been made by mistake of law.

3. A similar view was taken by another Division Bench of this court, to which I was a party, in Writ Petition No. 3106 of 1969 Abdul Subhan Abdul Razeek and Company v. The Commissioner of Commercial Taxes, Hoard of Revenue, Government of Madras, Madras-5, and Anr.. Therein we said :

It may be either that the petitioner has secured by virtue of a decision of court a right to have the former assessment declared non est. But, it does not appear to us that he would automatically secure by reason thereof a right of refund of amounts covered by such assessments.

4. Later, in Kuppuswami Chettiar v. State of Madras [1971] 28 S.T.C. 570 this court has taken the view that no one can take advantage of his own laches. If the petitioner has not availed himself of the statutory remedy of appealing against an original order of assessment and thus correcting it in that forum or in a higher forum, the respondent (the State) cannot be blamed for it... If he had not availed of such remedies, he cannot seek for such a relief under Article 226 either, for this would be - by-passing the provisions of accredited statutes.

5. Therefore, the weight of authority which has to be accepted by me and which is equally binding on me is that if considerable time has elapsed between the date of final order of assessment and the date when the petitioner seeks for a refund of the same and if it appears that the petitioner at an earlier stage was not aggrieved by that order, it would not be a fit and proper case to exercise my discretion under Article 226 and interfere and much less to declare a final order of assessment as illegal,' with a consequential entitlement to the petitioner to get a refund of the taxes paid thereunder in a summary fashion.

6. Mr. V.K. Thiruvenkatachari, learned counsel for the petitioners, however, strenuously contended that this is a case in which there has not been an inordinate delay, though the petitioners did not avail themselves of the other remedies under the Act. However justifiable the claim for refund which is impliedly made in this writ petition may be, yet having regard to the later trend of the decisions of this court, I am not inclined to exercise my discretion and grant the relief asked for so as to upset a settled final order of assessment against which the petitioners had no complaint at the appropriate time. As a matter of fact, in connected matters relating to the same petitioners, but referable to the assessment years 1963-64 to 1965-66, the Director-General of Supplies and Disposals agreed to settle and adjust matters with the petitioners, but they did not take a similar attitude in so far as this writ petition is concerned. This is another circumstance which has to be taken into consideration to decide whether, in the circumstances, the discretion of this court should be exercised. As the petitioners have not been diligent and as they came to the court nearly three years after the rendering of the judgment in the Khosla's case : [1966]3SCR352 I am unable to interfere and grant them the discretionary relief of making the rule nisi absolute.

7. The petitioners, however, have been prosecuting the subject-matter diligently in this court, having regard to certain apparent uncertainty in the case law on this question. They would, therefore, be entitled to avail themselves of the other remedies and plead that they have been agitating for their rights in another forum, like the High Court in exercise of its extraordinary jurisdiction under Article 226 and gain an advantage for themselves if it is possible for them.

8. The petition is dismissed. No costs.


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