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TMI Blog1969 (2) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 1959-60, 30th November, 1961, for the assessment year 1960-61, and 14th August, 1962, for the assessment year 1961-62. The petitioner, however, relying upon State of Mysore v. Lakshminarasimhiah Setty and Sons(1), contends that as section 9 of the Central Sales Tax Act assimilates all the provisions of the Madras General Sales Tax Act in regard to single point taxation and other exemptions particularly in relation to declared goods and as the scheme of inter-State transaction is therefore made dependent upon local legislation and as the State law provides that such declared goods shall be assessed only at one particular point, no tax can therefore be levied under the Central Sales Tax Act on his last sale. According to the petitioner, he issued a lawyer's notice demanding the refund of the tax, which, according to him, was illegally levied and collected by virtue of the impugned orders referred to above. The petitioner would also contend that though the ratio in State of Mysore v. Lakshminarasimhiah Setty and Sons[1965] 16 S.T.C. 231. confined itself to a period prior to 1st October, 1958, yet the same result ought to follow even for a period posterior thereto. It may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of the Supreme Court in State of Mysore v. Lakshminarasimhiah Setty and Sons[1965] 16 S.T.C. 231. that there is no reason why the Central Act made a departure in the manner of levy of tax on the specified goods which are taxed only at a single point under the State Act; if any such radical departure was intended, the Central Act would have expressly stated so. The Supreme Court thus explained the phrase "in the same manner" as meaning that there is an assimilation of both the procedural and substantive law as stated in the local State law in the Central Act as well, in so far as it applied to declared or specified goods. In that case, however, the impact of section 15 was not noticed, as the turnover therein related to a period prior to 1st October, 1958. It is convenient to note at this stage the changes effected in the Central Sales Tax Act with particular reference to the introduction and application of section 15 therein. The principal content of section 15 of the Central Sales Tax Act, section 4-A of the Madras General Sales Tax Act, and rule 33 of the Madras General Sales Tax Rules, 1959, and Form A-4 prescribed therein to enable assessees to claim refund of a tax paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as may be provided in any law in force in that State." On a reading of section 15 of the Central Act it is clear that section 15(b) postulates the levy of a local tax as also a Central tax on inter-State sales in relation to such goods, but with the condition that the tax levied by the State shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State. It is also clear from the text of section 15 that it postulates an intrastate sale followed up by an inter-State sale and a refund to the person appointed for the purpose, of the local tax in case the Central sales tax also has been collected. Such real intendment and scope of section 15(b) read with section 4-A of the State Act has been lucidly considered by this court in Khader Co. v. State of Madras[1966] 17 S.T.C. 396., to which my very learned brother Veeraswami, J., was a party, as under: "The scheme of these sections in the present context is this. So far as the goods mentioned in Schedule I are concerned, their sales are liable to levy both under the State Act as well as the Central Act. But in the case of declared goods mentioned in Schedule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central sales tax on such declared goods for which refund is asked for. Such being the content of section 15 of the Central Sales Tax Act, as also the purport of section 4-A of the local Act and the Rules made therein, we are not inclined to issue the rule to quash the impugned orders on the ground that no such levy can be postulated. The orders having been passed within the limits of law and as envisaged by the relevant provisions of both the Cental and local Acts are valid. The incidental argument is that even if such a levy is comprehended, there is no rigid or inelastic provision compelling the retention of the Central tax and refund of the local tax only. This again ignores the scheme of the Central Sales Tax Act, particularly section 15. Central Act 16 of 1957 gives a key to the solution. That Act sought to amend section 15 of the Central Sales Tax Act as it then stood, though not enforced. There was an inhibition under that provision for a levy of local tax, if the goods were intended for sale thereafter, in the course of inter-State trade or commerce. But before this provision was enforced, section 15 was once again amended. The present section projects a scheme where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erce would be entitled to the refund when the law is otherwise. If, however, rule 23 and Form A-4 of the Madras General Sales Tax Rules are to be interpreted in the way contended, then it is against the letter and spirit of the principle of refund envisaged in section 15(b) of the Central Sales Tax Act. But on a fair reading of rule 23 read with Form A-4 it appears that the person who could apply for such refund is the person who effected the inter-State sale. We have already held that he is not entitled to make any such application for refund as he is not the person who paid the intrastate sales tax. We shall now notice whether rule 23 and Form A-4 prescribed therein achieve the purpose intended by section 15 of the Central Sales Tax Act and section 4-A of the local Act. Rule 23(1) reads: "Every dealer who claims a refund under sub-section (1) of section 4-A shall, within three months from the date on which the dealer paid the Central sales tax due on the transaction in respect of which he claims refund of the State sales tax, submit to the assessing authority a statement in Form A-4." On a plain reading of the rule it appears to us that it is obligatory on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9th April, 1966. Apparently it was not pursued. Excepting for filing petitions for review of the judgment (which we shall presently consider), after the Supreme Court decided the case in State of Madras v. N.K. Nataraja Mudaliar[1968] 22 S.T.C. 376., no steps were taken to canvass the correctness of the judgment in Khader Co. v. State of Madras(2). It has therefore become final. The ratio in that case that the activity of the assessee has to suffer the Central sales tax as well, as the goods admittedly entered the channel of inter-State trade, is final, conclusive and binding on the petitioner. As the general principle of res judicata is applicable to writ petitions also, the petitioner cannot succeed on this ground too. The last contention of Mr. M.R.M. Abdul Kareem is that as the petitioner as an inter-State dealer has to shoulder a large burden of tax, the entire scheme offends articles 301 and 303 of the Constitution of India. The argument rests on the factual analysis that the turnover in the ultimate inter-State sale would be larger than that in the earlier sale or purchase inside the State. It is only to obviate the apparent difficulty and in keeping with the scheme of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is no doubt true that this court has the power to review even judgments given under article 226, for the sole purpose of avoidance of miscarriage of justice and to correct its palpable errors. We have held in Mohamedaly Sarefaly Co. v. Income-tax Officer[1968] 69 I.T.R. 807.: "..........................certain broad principles have to be inevitably followed by courts in exercise of the jurisdiction. One of them is that a party who comes to court asking for a particular relief in relation to the particular subject-matter must state all facts and circumstances and urge all the grounds on which he seeks relief and failure to do so either by negligence or oversight cannot be an excuse for starting of a litigation all afresh." In the instant cases, the omission to assert rights, as is now attempted, taken in conjunction with the inordinate delay in filing the applications for review and the consequential prejudice to the opposite side, exposes the laches of the petitioners. We are satisfied that the petitioners, who are guilty of such laches, have not shown or given any reasonable excuse or sufficient cause for excusing the delay ranging over years. The following excerpts from a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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