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TMI Blog1972 (8) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax thus collected has been shown separately in the various invoices issued by the defendant in each of the suits. The sales tax collected by the defendants from the plaintiffs had been originally remitted by the defendants to the Mysore sales tax authorities. Subsequently, the Supreme Court on 10th November, 1964, held in State of Mysore v. Y.L. Setty Sons[1965] 16 S.T.C. 231 (S.C.); [1965] 2 S.C.R. 129., that though section 6 of the Central Sales Tax Act is the charging section, the liability to pay tax is subject to the other provisions of the Act, that section 9(2) provides that tax shall be calculated at the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State, that the tax under the Central Act shall be levied in the same manner as the tax on the sale or purchase of goods, under the general sales tax law of the State is assessed, paid and collected, and that, therefore, if no tax was exigible in respect of the same transactions under the Mysore Sales Tax Act, no tax was payable under the Central Act. Relying on the said decision, the sales tax authorities of Mysore State refunded the tax collected on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of three years, they are barred by time. Therefore, the first point for consideration is whether article 24 applied to the facts of these cases. That article provides a period of three years from the date when the money is received for suits of the description "for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs' use". In Royal Bank of Canada v. R.[1913] A. C. 283 at 296., Viscount Haldane has laid down the legal principle thus: "It is a well-established principle of the English common law that when money has been received by one person which in justice and equity belongs to another, under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff, the latter may recover as for money had and received to his use." The above principle has been adopted in this country also (vide Mohammed Wahib v. Mahomed Ameer[1905] I.L.R. 32 Cal. 527. and A.V. Subba Rao v. States A.I.R. 1965 S.C. 1773.). In Johari Lal v. B.S. Co-operative BankA.I.R. 1959 Pat. 477., it has been held that where money is received by the defendant from a third person directly or impliedly for and on behalf of the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1969 well within the period of three years from December, 1967, when the defendants got the refunds, they are within time. Then we come to the question of jurisdiction. While the plaintiffs would state that the cause of action for the suits arose within the jurisdiction of the trial court, the defendants would state that it was the court at Shimoga in Mysore State that would have the exclusive jurisdiction to entertain and try the suits in question. On the facts it is seen that the Shimoga merchants have sent the goods in question by lorry and the goods have been taken delivery of by the plaintiffs at Tiruvarur after honouring the hundis sent by the Shimoga merchants through the bank and retiring the lorry receipt at Tiruvarur. Though it is said that there was prior offer and acceptance, no letter of offer or acceptance had been produced before the court. But from the invoices marked in evidence it is seen that the purchases have been made by one broker and that brokerage had been included in the invoices. In the reverse of the invoices there is a printed clause to the effect that all claims and disputes arising out of the transaction are subject to the jurisdiction of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to Bombay jurisdiction" was produced. On the question whether that clause excluded the jurisdiction of the court within whose jurisdiction the buyer resided, the court held that mere printing of the words "subject to Bombay jurisdiction" in a bill could not amount to a contract that both parties agreed to have Bombay as the only venue for the settlement of the disputes, that the mere recital on the top of the bill could not be incorporated as a term of the contract and that ouster of jurisdiction of a court to which a person is entitled to resort to under the Civil Procedure Code or any other statute cannot be a matter of assumption or presumption but one to be proved by express words contained in the contract or at least by necessary or inevitable implication. The learned judge in that case distinguished the earlier decision in H.K. Dada (India) Limited v. M.P. Sugar Mills Co. Ltd.[1954] 1 M.L.J. 434. on the ground that there was a specific term in that contract excluding the jurisdiction of the court and that that clause specifically excluded all other courts except the court within whose jurisdiction the seller resided. With respect, I am inclined to follow the reasoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any court for the refund of sales tax paid, the plaintiffs are disentitled from making any claim against the defendants for refund of the sales tax. We are of the view that the above contention is misconceived. By means of the amending Act subsection (1-A) was added to section 6, and section 9 was recast in the principal Act and such incorporation is deemed to have been always there in the principal Act. Section 6(1-A) provides that a dealer shall be liable to pay tax under the Act on sales of any goods effected by him in the course of inter-State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State. Section 9 of the amending Act validates assessment, reassessment, levy or collection of any tax made or any action or thing done in relation to such assessment, reassessment, levy or collection under the provisions of the principal Act before 9th day of June, 1969, and section 9(1)(a) provides that all acts, proceedings or things done or taken by the Government or by any officer of the Government or by any other authority in connecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, the Tribunal held that the assessee was liable to be taxed only at 3 pies in the rupee. On the basis of the order of the Tribunal which became final, a certain sum was refunded to the assessee in September, 1956. Subsequently, the proviso to section 3(1)(b) was replaced with retrospective effect by another proviso and the earlier assessments were validated. Thereafter the assessing authority issued a notice to the assessee requiring him to repay the sum refunded to him on the ground that by reason of the amendment made retrospectively the refund made was not proper. That demand was challenged by the assessee before this court, and this court expressed the view that: "When the excess over three pies per rupee was refunded to the petitioner, it was an amount lawfully due to him and was properly paid. The only question is, whether the payment had become unlawful or could be deemed to have been made under a mistake of law. If ex hypothesi the refund was due it was due because of the judgment of this court upholding the objection to the validity of the charging provision; there could be no mistake in law in making the refund and the mere fact that the proviso has been re-en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich some materials have been produced to show that reassessments have been made and the refunded amounts have been called back, we have to proceed that in the other cases there have been no reassessments nor the refunded amounts have been called back by the sales tax authorities. In those cases where no materials have been produced, the decree and judgment of the trial court have to be upheld. In C.R.P. No. 1827 of 1970, certain reassessment orders have been filed, but they show that the assessee is one Moola Rangappa. The petitioner in C.R.P. No. 1827 of 1970 is one Moolarangappa Co. Therefore the above documents are not relevant for establishing that the petitioner in C.R.P. No. 1827 of 1970 has been reassessed by the Mysore sales tax authorities during the relevant assessment years. In respect of the civil revision petitions in which materials have been placed to show that there had been reassessments, the matters have to be remitted to the trial court for finding out whether the reassessment covers the entire period and the transactions in dispute and to dispose of the cases in the light of the consideration of the above material. Therefore, C.R.P. Nos. 1749, 1823, 1824, 182 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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