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TMI Blog1968 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appeals under Article 133. There will therefore be no orders on the appeals against the orders refusing to certify the appeals. The costs of these appeals will abide by the decision of the High Court in the writ petitions - C.A. Nos. 1580, To 1595 of 1967, W.P. No. 300, To 307 of 1967, - - - Dated:- 9-2-1968 - SHAH J.C., RAMASWAMI V. AND MITTER G.K. JJ. D. Munikanniah, Senior Advocate (A.V. Rangam, with him), for the respondents. H.R. Gokhale, Senior Advocate (S.M. Dubash and B.R. Agarwala of Gagrat and Co. with him), for the appellant. -------------------------------------------------- The judgment of the Court was delivered by MITTER, J. -These appeals by special leave against orders of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The appellant claims not to have been aware that such inter-State sales were not taxable under the Central Act and under a misapprehension and mistake of law paid taxes amounting to Rs. 21,921.04, for the year 1959-60, Rs. 29,331.73 for the year 1960-61, Rs. 21,574.38 for the year 1961-62 and Rs. 50,767.44 for the year 1963-64. The appellant claims to have discovered the said mistake in the course of proceedings for assessment for the year 1962-63. It is alleged that the discovery was made through the help of its attorneys who had pointed out to the appellant that the levy of tax under the Central Act was illegal in view of the decision of this Court in The State of Mysore v. Yaddalam Lakshminarasimiah Setty and Sons [1965] 2 S.C.R. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period for which there was no justification. It had however to examine the question as to whether the appellant had paid the taxes under a mistake of law as also when the appellant came to discover its mistake. The taxing authorities could not very well be asked to quash the assessment orders already made by them. It is now well- settled by this Court in The State of Kerala v. Aluminium Industries[1965] 16 S.T.C. 689. that "In such a case where tax is levied by mistake of law it is ordinarily the duty of the State subject to any provision in the law relating to sales tax ... to refund the tax. If refund is not made, remedy through court is open subject to the same restrictions and also to the period of limitation (see Article 96 of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment." The High Court did not examine the merits of the case at all as it could not before admitting the petitions and hearing the Sales Tax Authorities against the cases urged in the writ petitions. Whether the case of the appellant was true, namely, that it discovered the mistake only in January, 1967, and that the assessments were illegal were all matters which the High Court had to examine after affidavits had been filed. It was open to the High Court to give a hearing to the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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