9911796707
TMI Blog1970 (12) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ected the assessee's claim in respect of sales of ₹ 96,959/- made to M/s. G. Rai and Company, Jhansi, on the ground that the petitioner is not entitled to claim a concessional rate at 2% because the 'C' forms issued by the purchaser covers more than one transaction of sale exceeding ₹ 5000/- and thus provision of rule 8 of the M. P. Sales Tax (Central) Rules, 1957 is not complied with. Those will be liable to tax at the rate of 10%. According to the petitioner, as a result of the rejection of the said declarations, the assessee became liable to pay an additional amount of ₹ 8965.23 paise as sales tax. The entire tax assessed on the petitioner was deposited on 9-12-1965. In the assessment proceedings, various contentions were raised on behalf of the petitioner but the proviso to Rule 8 of the M. P. Sales Tax (Central) Rules, 1957 which reads as follows, was assumed to be a valid provision. In fact, the said provision could not be challenged as ultra vires before the sales tax authorities. Proviso to Rule 8: Provided that no single Declaration shall cover more than one transaction of sale, except in cases where the total amount covered by one de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no case for taking up the case in revision. You should have kept the issue alive yourself. The petitioner has, therefore, filed this writ petition claiming that the order annexure A made by the Assistant Commissioner of Sales Tax may be quashed in so far as it rejects the claim of the petitioner for being taxed at a concessional rate of 2%. He has further prayed for a direction being given to the respondents to refund the item of tax illegally realized from him on the aforesaid view. The contention of the learned counsel for the petitioner is that as the petitioner was assessed to tax on the basis of the proviso to Rule 8 which has been held to be invalid and unenforceable, the petitioner must be held to have paid the amount of tax stated above under a mistake and he is entitled to get it back as the respondents have no authority of law for withholding payment of the said amount. On the other hand, the contention advanced by the learned Government Advocate is that the impugned order of the Assistant Commissioner of Sales Tax was made on 30-10-1965 and payment of tax under the said order was made on 9-12-1965. That being the position, if the petitioner wanted to urge tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een omitted in the new Limitation Act of 1963. However, Section 17(1)(c) of this new Act provides that in the case of a suit for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it. The learned Government Advocate urged that under the new Limitation Act if the petitioner was required to bring a suit, his suit would be governed by Article 24, which provides a limitation of three years for money payable by the defendant to the plaintiff for money received by the defendant, for the plaintiff's suit, and time is required to be reckoned when the money is received by the defendant. However, as this Article has to be read with Section 17, in our opinion the result would be the same, as that provided in the Act of 1908. Article 96 was not retained as it was not necessary in view of the provision made in Section 17 and not because a change in law was desired to be effected (see Limitation Act, 1963, by Chitaley and Rao, Fourth Edition, at page 900, under the heading Suit for money paid under mistake. ) The next point for consideration is as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing made under a void provision of law, and the payment was made, by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. As a general rule it may be stated that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment. The maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is leas than th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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