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TMI Blog1965 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ng this concurrent finding of fact. Appeal dismissed. - Civil Appeal No. 219, 273 of 1964 - - - Dated:- 19-10-1965 - Judge(s) : V. RAMASWAMY., K. SUBBA RAO., K. N. WANCHOO., J. C. SHAH., S. M. SIKRI G.S. Pathak, Senior Advocate (M.M. Vakil and J.B. Dadachanji, O.C. Mathur and Ravinder Narain of J.B. Dadachanji and Co., with him), for the respondents. S.V. Gupte, Solicitor-General of India (R. Ganapathi Iyer, M.S.K. Sastri, R.H. Dhebar and B.R.G.K. Achar, with him), for the appellant. JUDGMENT [The judgment of Subba Rao, Wanchoo and Sikri JJ., was delivered by Sikri J. The judgment of Shah and Ramaswami JJ. was delivered by Shah J.] SIKRI J.- --These are two appeals on certificates granted by the High Court of Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passed a decree in favour of the plaintiff for a sum of Rs. 35,850-8-3 with future interest from the date of the suit at 4 per cent. per annum on Rs. 31,852-8-3, together with the costs of the suit. The State of Bombay appealed to the High Court. It was urged before the High Court, as has been urged before us, that the Act was a complete code and the issue of law relating to non-maintainability of the suit was, for all practical purposes, answered by the conclusions reached by their Lordships of the Privy Council in Raleigh Investment Co. Ltd. v. Governor General in Council, in examining the provisions of section 67 of the Income-tax Act which are very similar to those of section 20 of the Sales Tax Act, 1946. The High Court held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is covered by the decision of this court in the Tripura case, and the High Court was right in so holding. The learned Solicitor-General then attempted to distinguish the Tripura case by saying that there was in the Bengal Agricultural Income-tax Act, 1944, no section like section 13 and no reliance was placed by this court in that case on the existence of adequate machinery as was done by this court in Kamala Mills case. In effect he seemed to suggest that the Tripura case was inconsistent with the decision of this court in Kamala Mills case. We are unable to accede to this contention. The judgment of Fazl Ali J., who dissented in the Tripura case, clearly shows that the court was fully aware of the existence of the machiney in the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the dealer, by deduction of such excess from the amount of tax due in respect of any other period : Provided that no claim to refund of any tax paid under this Act shall be allowed unless it is made within twenty-four months from the date on which the order of assessment was passed or within twelve months of the final order passed on appeal, revision or reference in respect of the order of assessment, whichever period is later : Provided further that the Collector shall first apply the excess paid in respect of any period towards the recovery of any amount in respect of which a notice under sub-section (4) of section 12 may have been issued and shall then refund the balance remaining, if any. " The first part of the section imposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection that the money paid was paid by virtue of a void provision of the Act. Further, we have held in K. S. Venkataraman Co. v. State of Madras that the sales tax authorities created by the Madras General Sales Tax Act are not competent to entertain questions as to the ultra vires of a provision of the Act. Similarly, the Commissioner appointed under the Bombay Sales Tax Act would not be competent to go into the question whether section 6 of the Act under which the transactions were apparently taxable was ultra vires or not. Therefore, in our opinion section 13 of the Act does not create an implied bar and the High Court is right in holding that the suit was competent. This court has recently held that article 96 applies to suits l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red their mistake when the Governor of Bombay promulgated Bombay Ordinance No. 2 of 1952, after the decision of the Bombay High Court in United Motors (India) Ltd. v. State of Bombay. The trial court and the High Court have rejected the contention raised by the State that the suits were barred by sections 13 and 20 of the Bombay Sales Tax Act, 1946, which were later replaced by sections 19 and 20 of the Bombay Sales Tax Act, 1952, and that the suits were barred by the law of limitation. We agree with the judgment of our brother Sikri J. that the suits were not barred either expressly by the provisions of section 20 or impliedly by section 13 of the Bombay Sales Tax Act, 1946. We also agree with him that the suits were not barred by the la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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