9911796707
TMI Blog1977 (3) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. In respect of the articles which were imported by the retail shops at Jabalpur within the limits of the then Jabalpur Municipal Committee between April 1, 1943 and March 31, 1946 the plaintiffs had paid to the Municipal Committee a sum of ₹ 16528 odd as octroi duty. This duty was assessed by the Municipal Committee on an amount which was 40% less than the retail price of the goods which were brought within the municipal limits. In the year 1946- 47 the Municipal Committee decided to reopen and revise the assessment by charging the octroi duty on an amount which was only 6i% less than the retail price of the goods. The Municipal Committee further decided to levy double the duty by way of penalty for the aforesaid period on the ground that the plain tiffs had intentionally evaded the payment of the duty payable on the goods. Plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur who by an order dated July 14, 1948 modified the decision of the Municipal Committee by permitting them to charge the octroi duty on an amount which was less by 121/2% than the retail price of the goods. The Sub-Divisional Officer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in regard to the amount paid to the Municipal Committee in September 1948 was held to be within limitation on account of the intervening summer vacation during which the courts were closed. According to the High Court the exaction of the double duty being beyond the powers of the defendants, the special period of limitation was not attracted and the plaintiffs were therefore entitled to recover the sum paid by way of double duty. In the result the High Court passed a decree in the sum of ₹ 24103-12-3 which, according to it, represented the double duty wrongly recovered by the defendants from the plaintiffs, The High Court has granted to both the parties a certificate to file an appeal to this Court under Article 133(1) of the Constitution and both parties being partly aggrieved by the decree of the High Court have filed cross appeals. 7. The first question for consideration is whether the civil court has jurisdiction to entertain. the suit brought by the plaintiffs. It is undisputed that the Municipal Committee had the power under Section 66(1)(a) of the Act of 1922 to impose octroi tax on the goods brought within the Municipal limits for sale, consumption or use therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved by an order of assessment to octroi duty. Similarly, the Sub-section excludes expressly the power of any other authority than is provided in this Act to entertain an objection to any valuation, assessment or levy of octroi. This part of the provision is in the nature of ouster of the jurisdiction of Civil Courts, at least by necessary implication, to entertain an objection to any valuation, assessment or levy. This is the evident intendment, meaning and implication of the provision. 9. In Wolverhampton New Waterworks Company v. Hawkesford (1859) CB 336 Willes J. referred to various classes of cases in which the jurisdiction of ordinary courts is excluded, the third class of such cases being where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The view of Willes J., that with respect to that class of cases the party must adopt the form of remedy given by the statute and no other, was accepted by the Privy Council in Secretary of State v. Mask Co and by the House of Lords in Neville v. London 'Express Newspaper, Ltd. 1919 AC 368. 10. In Mask Company's case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipally or the decisions of this Court in Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon [1966]59ITR73(SC) ; B.M. Lakhani v. Malkapur Municipality AIR1970SC1002 and Dhulabhai v. The State of Madhya Pradesh. [1968]3SCR662 . The appellants in Bharat Kala Bhandar's case filed a suit for recovery of excise tax paid by them under Section 66(1)(b) of the Central Provinces Municipalities Act, 1922 on the ground that after the coming into force' of Section 142A of the Government of India Act, 1935 till January 25, 1950 a tax in excess of ₹ 50/- per annum could not be imposed by the Municipal Committee and that after the coming into force of the Constitution, imposition of tax in excess of ₹ 250/- per annum was unconstitutional. The trial Court decreed the suit but on appeal the High Court held that the suit was bad for non-compliance with Section 48 of the C.P. Act according to which a suit for anything done or purported to be done under the Act had to be instituted within six months from the date of the accrual of the cause of action. In answer the Municipal Committee contended that apart from the provisions of Section 48, the suit was barred by Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of sales tax was unconstitutional and the suit, for that reason, was held maintainable. Attention must, however, be drawn to propositions (1), (4) and (6). The 1st proposition states that where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The 4th proposition is that when a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. The 6th proposition which bears more appropriately on the instant case says that questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the appropriate authorities under the Act, whether the said assessments were made correctly or not. The decision in Bharat Kala Bhandar [1966]59ITR73(SC) was brought to the notice of the Court in Kamla Mills case [1965]57ITR643(SC) but that decision was distinguished on the ground that the provision which fell for construction therein was worded differently and as observed in Mask Co. decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid down. With great respect, the decision in Bharat Kala Bhandar [1966]59ITR73(SC) is distinguishable for the weightier reason that the tax recovered in that case was unconstitutional and no provision of a statute could be construed as laying down that no Court shall have jurisdiction to order a refund of a tax collected in violation of a constitutional provision. If there were a provision which so provided or which could be so construed, that provision would itself be unconstitutional. 16. In Kamla Mills' case [1965]57ITR643(SC) it was observed that if a statute creates a special right or liability, provides for the determination of that right or lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipal Committee to impose an octroi on animals or goods brought within the limits of the municipality for sale, consumption or use within those limits. Section 83(1) provides that an appeal against the assessment or levy of, or refusal to refund, any tax under the Act shall lie to the Deputy Commissioner or to such other officer as may be empowered by the Provincial Government in that behalf. Sub-section (1-A) of Sec. 83 gives to the person aggrieved by the decision of the appellate authority the right to apply to the State Government for revision of the decision on the ground (a) that the decision is contrary to law or is repugnant to any principle of assessment of a tax, or (b) that the appellate authority has exercised a jurisdiction not vested in it by law or has failed to exercise the jurisdiction vested in it by law. Section 83(2) empowers the appellate or revision authority to draw up a statement of the case and make a reference to the High Court for its decision if any question as to ' the liability to assessment or as to the principle of assessment arises in the matter on which the authority entertains a reasonable doubt. Then comes Section 84 which by Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssess and recover octroi duty and double duty on goods which are brought within the municipal limits for sale, consumption or use therein. The circumstance that the defendants might have acted in excess of or irregularly in the exercise of that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction. Applying the test in Kamla Mills, if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act, holds erroneously that an assessment already made can be corrected or that an assessee is liable to pay double duty when Rule 14(b), in fact, does not justify such an imposition, it cannot be said that the decision of the authority is without jurisdiction. Questions of the correctness of the assessment apart, from its constitutionality are, as held in Dhulabhai, [1968]3SCR662 for the decision of the authorities set up by the Act and a civil (sic) cannot lie if the orders of those authorities are given finality. There is no constitutional prohibition to the assessment which Is impeached in the instant case as there was in Bharat Kala Bhandar [1966]59ITR73(SC) , E.M. Lakhani AIR1970SC1002 and D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her rate in respect of salt of other kinds, imposed tax at the higher rate on sambhar salt which was a variety of common salt. Section 86 of the Punjab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act. That provision is identical with Section 84(3) of the C.P. Municipalities Act, 1922, with which we are concerned in the instant case. Section 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and the Rules thereunder. It was held by this Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of Section 86. The observations on which plaintiffs rely cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it Except in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee reopened and revised the past assessments by charging octroi duty on an amount which was only 61/4% less than the retail price of the goods and when it levied double duty by way of penalty, plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur, who by an order dated July 14, 1948 modified the decision of the Committee by asking them to charge octroi duty on an amount which was less by 121/4% instead of 61/4% than the retail price of the goods. Plaintiffs succeeded to an extent though the Sub Divisional Officer upheld the assessment of double duty. Having exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to the civil Court to claim the refund. That is impermissible in view of the provision contained in Section 84(3) of the Act. 26. In the result. Civil Appeal No. 1923 of 1972 filed by the plaintiffs fails and is dismissed. Civil Appeal No. 1924 of 1972 filed by the defendants succeeds and is allowed with the result that the plaintiffs' suit will stand dismissed. Considering that the defendants revised the assessment after a lap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
