9911796707
TMI Blog2000 (2) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... RN-308 of 1999 and to the reported decisions relied on by him in connection with that case. He adopted the arguments made in RN-308 of 1999 and submitted that he was relying on the same decisions which were relied on in RN-308 of 1999. Hence, the two applications have been taken up together for judgment. 2.. In RN-308 of 1999, the case of the applicant is that it carries on a transport business under the name and style of Maharaja Transport. The applicant is not a casual trader under the Bengal Finance (Sales Tax) Act, 1941 (in short, "the 1941 Act"). In spite of that, on various occasions vehicles of the applicant by which goods were being transported were intercepted and tax under section 4C(1) of the 1941 Act was demanded by respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunch of mostly copies of receipted challans, demand notices and duplicate carbon receipts showing payment of various amounts. It appears therefrom that the payments were made mostly in the year 1994 and a few in the year 1995. The applicant's case is that on November 25, 1999 while discussing sales tax matter with Mr. Anjan Kumar Sengupta, Advocate, it came to the knowledge of the applicant that payment of tax under section 4C(1) of 1941 Act and under section 14 of the 1994 Act as casual trader was illegal. The Revenue could not collect such tax on the basis of judgment of this Tribunal delivered in the case of Road Transport Association [1996] 100 STC 361 (WBTT). The applicant allegedly then came to know that it was entitled to refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue No. 11 of Vol. 30 of STA in the month of November, 1997. 8.. As already said, in RN-308 of 1999 and RN-20 of 2000 most of the payments were made in the year 1994 and only some of the payments were made in 1995. Mr. Chakraborty appearing for the applicants has submitted that the period of limitation of three years should run from the date of knowledge of the applicants in both the cases, and not from the date of judgment or from the date of publication of the judgment, on the basis of which the mistake of law has been discovered and on the basis of which the claims for refund are made. But Mr. J.K. Goswami, learned State Representative, appearing for respondents, has submitted in both the cases that the period of limitation of three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the present applicants was received by the respondents (Revenue) for the use of the applicants, because the applicants were liable to pay the tax until this Tribunal declared that the tax was not payable on the ground that the provisions on the basis of which the tax was collected, were ultra vires. 10.. Mr. Chakraborty appearing for the applicants, also referred to [1990] 78 STC 404 (SC) (Mahabir Kishore v. State of Madhya Pradesh) where it was held that a tax paid under a mistake of law is refundable under section 72 of the Indian Contract Act, 1872. It was also held in that case that section 17(1)(c) of the Limitation Act of 1963 will apply in a case of this nature, according to which, the prescribed period of limitation shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was subsequently declared ultra vires, the tax was refundable under section 72 of the Indian Contract Act. 12.. In this case the court, i.e., this Tribunal made the declaration that the provisions in the 1941 Act under which the tax was collected from the applicant in RN-308 of 1999 were invalid by judgment dated April 7, 1995 which was published in STA of June, 1996. Since the applicant in RN-308 of 1999 was not a party to that case, the fact that the relevant provisions in the 1941 Act were declared invalid could not be known to the applicant with reasonable diligence until the judgment was published in the law journal. When the judgment was published in the Sales Tax Advices of June, 1996, it should be treated as the date of discovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994 which replaced the 1941 Act, came into force from May 1, 1995. Therefore, all the payments were made by the applicant in this case under the provisions of the 1941 Act. We have already seen that the relevant provisions of the 1941 Act under which the tax was paid or collected were declared invalid by this Tribunal in the judgment dated April 7, 1995, reported in [1996] 100 STC 361 (WBTT); (1996) 29 STA 233 (WBTT) (Road Transport Association v. Inspector of Commercial Taxes) and that was published in the Sales Tax Advices of June, 1996. The date of knowledge or date of discovery of mistake of law under which the payments were made, is the date of publication of the judgment. The present application was filed on January 21, 2000. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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