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TMI Blog1998 (2) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Bihar) (7) C.W.J.C. No. 1672 of 1988 (Ajay Kumar v. State of Bihar) (8) C.W.J.C. No. 1582 of 1988 (Vikash Engineering Company v. Union of India) (9) C.W.J.C. No. 1575 of 1988 (Bhrugu Nath Pandey v. State of Bihar) (10) C.W.J.C. No. 1569 of 1988 (Shankar Prasad v. State of Bihar) (11) C.W.J.C. No. 1562 of 1988 (Baleshwar Prasad v. State of Bihar) (12) C.W.J.C. No. 1535 of 1988 (Ajay Construction v. State of Bihar) (13) C.W.J.C. No. 2189 of 1988 (Chandrahas Rai v. State of Bihar) (14) C.W.J.C. No. 1658 of 1988 (Sidhnath Prasad v. State of Bihar) (15) C.W.J.C. No. 1656 of 1988 (Langeshwari Prasad Singh v. State of Bihar) (16) C.W.J.C. No. 2154 of 1988 (Nagendra Kumar Singh v. State of Bihar) (17) C.W.J.C. No. 2156 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m v. State of Bihar) (39) C.W.J.C. No. 1207 of 1988 (Konark Construction v. State of Bihar) (40) C.W.J.C. No. 1901 of 1988 (Ashok Kumar Choudhary v. State of Bihar) (41) C.W.J.C. No. 1963 of 1988 (A.K. Singh v. State of Bihar) (42) C.W.J.C. No. 1917 of 1988 (Gopal Himat Singhka v. State of Bihar) (43) C.W.J.C. No. 1920 of 1988 (Lal Babu Yadav v. State of Bihar) (44) C.W.J.C. No. 1924 of 1988 (Kameshwar Pd. Singh v. State of Bihar) (45) C.W.J.C. No. 1928 of 1988 (Palamau Construction v. State of Bihar) (46) C.W.J.C. No. 1930 of 1988 (Shri Shital Prasad Jaiswal v. State of Bihar) (47) C.W.J.C. No. 1938 of 1988 (Vijay Construction v. State of Bihar) (48) C.W.J.C. No. 1952 of 1988 (Rajendra Singh v. State of Bihar) (49) C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Bihar) (70) C.W.J.C. No. 244 of 1988 (Motilal Agrawal v. State of Bihar) (71) C.W.J.C. No. 273 of 1988 (Arora Construction Co. v. State of Bihar) (72) C.W.J.C. No. 243 of 1988 (Bashamal v. State of Bihar) (73) C.W.J.C. No. 245 of 1988 (Harpal-das Maldhyani v. State of Bihar) (74) C.W.J.C. No. 246 of 1988 (Sudamamal v. State of Bihar) (75) C.W.J.C. No. 742 of 1988 (Babu Lal Bhagat v. State of Bihar) (76) C.W.J.C. No. 741 of 1988 (E.B.I. Construction Agency v. State of Bihar) (77) C.W.J.C. No. 4536 of 1988 (G.S. Construction v. State of Bihar) (78) C.W.J.C. No. 2234 of 1988 (Amritesh Kumar Roy v. State of Bihar) (79) C.W.J.C. No. 4004 of 1988 (Rajendra Prasad Singh and Company v. State of Bihar) (80) C.W.J.C. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is ultra vires. 3.. Another set of writ petitions which were listed before us in the last month, on the basis of decision in Builders Association case [1992] 85 STC 362 (Pat) [FB]; [1992] 1 PLJR 1 [FB] have been disposed of rendering those petitions infructuous inasmuch as the provisions of section 25A of the Act has been declared ultra vires in the said decision and hence the question of realising sales tax from the petitioners, who are carrying on business of works contract does not arise. 4. In Builders Association case [1992] 85 STC 362 (Pat.) [FB]; [1992] 1 PLJR 1 [FB], since the matter has been decided declaring the provision of section 25A of the Act ultra vires, therefore, in our opinion, these bunch of writ petitions also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act will be of no avail to them who are not registered dealers under the Act. 9.. We have already observed that if unlawful tax is recovered, it will be violative of the provisions of article 265 of the Constitution and, therefore, the State is obliged to refund the amount which has been unlawfully recovered. This legal position is not at all disputed. But at the same time, it is also not disputed that tax on sale is a shifting tax and if the same is realised from the consumers and paid to the State exchequer by the dealers/agents (or contractors in the instant cases) and ultimately the said tax is found to have been illegally realised, a moot question would arise as to whom the said amount of tax be directed to be refunded? If the said a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be refunded. It can only be refunded to the persons from whom the amount of tax is actually realised. 13.. In this regard we have already observed that under the facts stated above, refund in the instant cases being based on disputed question of facts, cannot be gone into in writ jurisdiction, therefore, if the petitioners are so advised, it is for them to choose the appropriate forum for the redressal of their grievances by proving that the amount so paid under section 25A of the Act has not been realised towards works contract from the consumers but has been paid from their own pocket and doctrine of unjust enrichment does not apply in their cases. 14.. For the reasons aforesaid, the submission made by the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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