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TMI Blog1965 (10) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... 852-8-3 which they had paid as advance sales tax on various dates when submitting returns for the period January 26, 1950, to March 31, 1951, and interest thereon at 4 per cent, viz., ₹ 2,998. The suit was filed on the allegations that the amount was paid as advance tax in respect of sales of goods effected outside the State of Bombay. These sales were taxable under the Bombay Sales Tax Act, 1946 (hereinafter referred to as the Act). It was further alleged that the Act became void by virtue of article 286(1)(a) of the Constitution on January 26, 1950, and this amount was paid under a mistake of law and that the mistake was discovered when the Governor of Bombay promulgated Bombay Ordinance No. 2 of 1952. 2. The State of Bombay rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es known to the plaintiff. It expressed agreement with the court below that the mistake of law became known to the plaintiff on a date which brings the suit within the period prescribed by the law of limitation. The High Court further held that the trial court was in error in allowing interest as damages. In the result, the High Court varied the decree by omitting the directions as regards the payment of interest as damages, but otherwise affirmed the decree. Having obtained the certificate of fitness from the Bombay High Court, the State of Bombay has now come up on appeal to this court. 4. The learned Solicitor-General has raised two points on behalf of the appellant : First that the suit was either expressly barred by section 20 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Pathak, learned counsel for the respondent, pointed out that a section similar to S. 13 existed in the Bengal agricultural Income-tax Act, 1944. 6. Another point raised by the learned Solicitor-General was that, when a registered dealer files a return and calculates and pays tax on the basis of the return, he is effect makes a self-assessment and, therefore, brings himself within section 20 of the Act. We are unable to read the word assessment in section 20 to include a mere filing of return and payment by a registered dealer. In our opinion, the word assessment has reference to assessments made under section 11 and 11A of the Bombay Sales Tax Act, 1946. Therefore, we must overrule the contention of the learned Solicitor-General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the order of assessment is passed or within 12 months of the final order passed on appeal in respect of the order of assessment, whichever period is later. It is apparent that the dealer cannot apply for refund under section 13 till an order of assessment is passed. The prescribed form also shows the same thing. The scheme of section 13 appears to be that the Sales Tax Officer would make first an order of assessment, arrive at the amount of tax due according to the order and then work out the excess, if any, paid by the dealer and refund that money. It seems to us that section 13 does not contemplate objections being entertained regarding the constitutional validity of any payment made by the dealer. The Solicitor-General contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Governor's Ordinance. This is a concurrent finding of fact and the learned Solicitor-General has not shown us any good ground for disturbing this concurrent finding of fact. 14. Accordingly, agreeing with the High Court, we hold that the suit is not barred. In the result the appeals fail and are dismissed with costs. One hearing fee. J.C. Shah J. 15. These appeals arise out of suits filed by the two respondents for recovery of sums of money paid by them as advance sales tax under a mistake of law. The suits were decreed by the court of first instance and the decisions were confirmed in appeals by the High Court of Judicature at Bombay. 16. There were no orders of assessment made by the taxing authorities, but the taxpaye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gree with the observations that before the sales tax authorities an objection that certain parts of the statute were ultra vires the legislature could not be raised. As held by this court in Kamala Mills Ltd. v. State of Bombay the question whether a transaction which falls within the Explanation to article 286(1)(a) before it was amended by the Constitution (Sixth Amendment) Act does not affect the jurisdiction of the taxing authority. It is merely a question of interpretation of the contract in the light of the statute and the sales-tax authorities are entitled to entertain the objection, if it be raised before them, that the transaction was not taxable because the State had no power to legislate in respect of an Explanation sale. But in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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