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TMI Blog1974 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... authority given to the plaintiff's principals to import the goods. The transactions were taxed by the first defendant as local sales for the assessment year up to 1966-67. For the said assessment year, the second defendant passed the assessment order MGST 431/66-67 on 15th March, 1968, including a turnover of Rs. 17,46,368.59 as taxable under the provisions of the Tamil Nadu General Sales Tax Act. This turnover represents sales in the course of import, and it would be covered by the ratio of the decision laid down in K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes(1). The Supreme Court delivered the judgment on 18th January, 1966, and it was actually reported on 1st May, 1966, in the Law journals. On 14th October, 1968, the third defendant wrote to the plaintiff stating that these transactions would fall within the decision of the Supreme Court. Thereupon the plaintiff filed Writ Petition No. 3544 of 1969 (Parry Co. Limited v. The State of Madras[1972] 30 S.T.C. 168. to direct the sales tax authorities to investigate the character of the transactions in the light of the Supreme Court decision and also to refund the sum of Rs. 43,659. On 23rd November, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to become final by not challenging the same before the appropriate statutory authorities? 4.. Whether the plaintiff is entitled to any interest? 5.. Whether the suit is not maintainable in law? 6.. Whether this court has no jurisdiction to try this suit? 7.. Whether the plaintiff has cause of action to file this suit? 8.. Whether the suit is barred by limitation? No oral evidence has been let in, and the parties were content in marking the documents. Exhibits P-1 to P-4 were marked on the side of the plaintiff, and exhibits D-1 and D-2 were marked on the side of the defendants. Issue No. 5-It is contended by the learned Government Pleader appearing for the defendants 1 and 2 that the suit is not maintainable in view of the express bar contained in section 51 of the Tamil Nadu General Sales Tax Act, 1959. In support of this contention, two decisions are cited before me. One is Kamala Mills Ltd. v. State of Bombay[1965] 16 S.T.C. 613 (S.C.)., in which the Supreme Court in dealing with a similar case arising out of the Bombay Sales Tax Act, 1946, held: "Under the Bombay Sales Tax Act, 1946, the appropriate authorities have been given power in express terms to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es place outside the State or in the course of inter-State trade or commerce or in the course of import or export, in which case, under article 286 of the Constitution, the Sales Tax Officer of the State loses the power to assess the transaction. It is erroneous to hold that the moment a question of jurisdiction in this sense is raised, in assessment proceedings, the issue falls outside the purview of the sales tax authority, and should be agitated in a separate suit." I may only state that section 18-A of the Madras General Sales Tax Act, 1939, was similarly worded as section 51(1) of the present Act. In meeting these contentions, the learned counsel for the plaintiff firstly relies on Venkataraman Co. (P.) Ltd. v. State of Madras[1966] 17 S.T.C. 418 (S.C.)., and contends that the suit is the proper remedy. But, that is a case wherein it was clearly laid down that if a taxing authority acts on the basis of a provision of the statute, which is ultra vires, to that extent it would be acting outside the Act and that, in that event, the suit to question the validity of such an order made outside the Act would lie in a civil court. In the instant case, there is no question of ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6] 17 S.T.C. 473 (S.C.)., and contended that those transactions were not liable to tax. But on a perusal of the order of the Appellate Assistant Commissioner (the second defendant), I find no discussion at all relating to this aspect of the matter. Apparently, it was not raised before the Appellate Assistant Commissioner. Having failed to agitate the matter before the relevant authority, it is not now open to the plaintiff to contend that there is either a mistake of fact or mistake of law. Hence, this decision is also not helpful to the plaintiff. Lastly, the decision in Dhulabhai v. State of Madhya Pradesh[1968] 22 S.T.C. 416 (S.C.). is cited, and it is contended that the case of the plaintiff will come within the proposition No. (4) laid down in that case. I am extracting proposition No. (4) (occurring at page 434) for the proper appreciation of the contentions put forward on behalf of the plaintiff: "When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issue against the plaintiff. Issue No. 3-The appellate order is dated 20th July, 1968. That having become final, it is not open to the plaintiff to claim a refund of the tax. Hence, I answer this issue against the plaintiff. Issue No. 6-In view of my finding on issue No. 5, I hold that this court has no jurisdiction to try the suit. Issue No. 7-The assessment order having become final and the plaintiff not having raised the same before the concerned taxing authority, it has no cause of action to file this suit. Issue No. 8-In paragraph 9 of the plaint, it is stated: "The said judgment was actually reported only on 1st May, 1966, in the Law journals. But the plaintiff as well as the 1st and 2nd defendants were not aware of the said judgment of the Supreme Court and the assessments were continued to be made by the 2nd defendant without reference to the judgment of the Supreme Court." This is an incorrect statement. I say so, because, I find from the objection letter of the plaintiff dated 14th March, 1968, that it is stated: "We rely in support of our contention on the decision of the Supreme Court in the case of Messrs. K.G. Khosla and Co. Ltd.[1966] 17 S.T.C. 473 (S.C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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