SUBSEQUENT DECISIONS OF THE SUPREME COURT ON THE

QUESTION OF REFUND:

In State of Kerala v. Aluminium Industries Ltd. (1965) 16 S.T.C. 689.

The respondent was a dealer registered under the Kerala Sales Tax and it paid
certain amounts by way of sales tax. Subsequently, it filed a writ petition
claiming refund on the ground that sales on which tax has been levied were
exempt from tax .
The High Court allowed the writ petition partly directing refund .
The State of Kerala appealed.
The respondent case was that when it paid the tax, it did not know that the said
transactions were not exigible to tax. It claimed that it discovered its mistake
only after the payment. The claim for refund was resisted by the State of Kerala
contending inter alia that inasmuch as the tax was paid voluntarily, it was not
recoverable in law.
The appeal was heard by a seven-Judge Bench of this Court which observed
that in the light of the decision in Kanhaiyalal, money paid under a mistake of
law is recoverable under Section 72 of the Contract Act and that there can be no
question of estoppel when the mistake of law is common to both the parties.
The Bench further observed, "in such a case where tax is levied by mistake of
law it is ordinarily the duty of State, subject to any provision in the law relating
to sales tax , to refund the tax. If refund is not made, remedy through court is
open subject to the same restrictions and also to the period of limitation ,
namely, three years from the date when the mistake becomes known to the
person who has made the payment by mistake ". The Court held that "it was the
duty of the State to investigate the facts when the mistake was brought to its
notice and to make a refund if mistake was proved and the claim was made
within the period of limitation".
In State of Madhya Pradesh and Ors. v. Bhailal Bhai: [1964]6SCR261 , the tax
imposed upon the tobacco imported by the respondents was held to be
unconstitutional.
The claim for refund of such taxes was also upheld on the ground that it was a
case of a tax paid under a mistake within the meaning of Section 72 of the
Contract Act. Kanhaiyalal was followed. It was also observed that though there
is no limitation prescribed for filing a writ petition under Article 226 of the
Constitution, the maximum period fixed by the Legislature as the time within
which a suit for similar relief has to be filed can be taken as the reasonable
period for approaching the High Court.

Kamala Mills Ltd. v. State of Bombay [1965]57ITR643(SC) , decided by a

Special Bench of seven Judges, lays down several propositions.

The appellant was a dealer registered under the Bombay Sales Tax Act. During
the year 1950-51, it was assessed to sales tax on certain sales treating them as
'inside' sales. However, according to the ratio of the decision in Bengal
Immunity Co. Ltd. v.State of Bihar [1955]2SCR603 , the said sales were in
truth 'outside sales, not taxable under the Bombay Act.
Since the time for adopting the remedies provided by the Bombay Act had
become barred meanwhile, the appellant filed a suit for recovery of the sales tax
illegally collected from it in respect of 'outside' sales. The State contended inter
alia that the suit was barred by virtue of Section 20 of the Bombay Act.
The plea was upheld by the trial court and the suit dismissed. On appeal, the
High Court affirmed. The matter was then brought to the Supreme Court .
It was held that:
(a) The words "any assessment made under this Act" were wide enough to
cover all assessments made by the appropriate authorities under the Act whether
the assessments were correct or not. The words "an assessment made" cannot
mean an assessment properly and correctly made. Since the appellant was
calling in question the orders of assessment made against it, its challenge in the
suit was plainly prohibited by Section 20.
(b) The provisions of the Bombay Act make it clear that all questions pertaining
to the liability of the dealers to pay assessment in respect of their transactions
are expressly left to be decided by the appropriate authorities under the Act as
matters falling within their jurisdiction. Whether or not a return is correct and
whether a transaction is exigible to tax, or not, are all matters to be determined
by the authorities under the Act.
(c) Where a statute creates a special right or a liability and also provides the
procedure for the determination of the right or liability by the Tribunals
constituted in that behalf and provides further that all questions about the said
right a liability shall be determined by the Tribunal so constituted, it becomes
pertinent to enquire whether remedies normally associated with actions in civil
courts are provided by the statute or not. In other words, if the court comes to
the conclusion that the Act does not provide any remedy to make a claim for
recovery of illegally collected tax and yet Section 20 prohibits such a claim
being made before an ordinary civil court, the court might hesitate to construe
Section 20 as creating an absolute bar.

In Dhulabhai and Ors. v. State of Madhya Pradesh [1968]3SCR662 , a

Constitution Bench of the Supreme Court discussed at length the question when
does a suit lie for recovery of taxes imposed and collected under a taxing
enactment, and enunciated seven propositions.
(1) Where the statute gives a finality to the orders of the special tribunals the
Civil Courts' 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.
(2) Where there is an express bar on the jurisdiction of the court, an
examination of the scheme of the particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant but is not decisive to
sustain the jurisdiction of the civil court.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be
brought before Tribunal constituted under that Act. Even the High Court cannot
go into that question on the revision or reference from the decision of the
Tribunals.
(4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open.
(5) Where the particular Act contains no machinery for refund of tax collected
in excess of constitutional limits or illegally collected ,a suit lies.
(6) 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 Act
must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be
inferred unless the conditions above set down apply.

Tilokchand Motichand and Ors. v H.B. Munshi[1969]2SCR824 is a case

dealing with the attempt of a person who tried to take advantage of the decision
in another person's case rendered several years later.
The authorities under the Bombay Sales Tax Act refunded certain amounts to
the petitioners-dealers on the condition that they should pass on the said
amounts to their customers (these amounts were earlier collected by the dealers
from their customers and paid to the State).
On the ground that the dealers have failed to pass on the said amounts to their
customers, the authorities forfeited the said amounts under Section 21(4) of the
Bombay Sales Tax Act, 1953.
The dealers filed a writ petition in the Bombay High Court challenging the
constitutional validity of Section 21(4) before a single judge bench, which was
dismissed on the grounds that the petitioners-dealers have defrauded their
customers, they were not entitled to any relief under Article 226. The appeal
preferred by the dealers was dismissed by the Division Bench of the High Court
holding that even if there was a violation of petitioners' fundamental right, the
High Court was not bound to come to their help in view of their conduct.

The dealers accordingly paid up the said amount in instalments in 1960. More
than seven years later, in 1967, the Supreme Court struck down Section 21(4)
of the Act in Kantilal Babulal v. H.C. Patel, 21 S.T.C. 174.
In 1968, the petitioners filed a writ petition in this Court under Article 32 of the
Constitution for refund of the aforesaid amounts on the assumption that Section
21(4) is unconstitutional in view of the decision of this Court in Kantilal
Babulal.
They submitted that though they had raised other grounds in support of their
attack upon the validity of Section 21(4) in the High Court, they were not aware
of the particular ground upon which the Section 21(4) Act was struck down in
Kantilal Babulal,
The Supreme Court, dismissed the writ petition holding that the judgment of
the High Court dismissing the writ petition filed by the writ petitioner operates
as res judicata and bars the petition under Article 32.The Court made the
following relevant observations:
“The petitioner moved the High Court for the relief on the ground that the
recovery from him was unconstitutional. He set out a number of grounds but did
not set out the ground on which ultimately in another case recovery was struck
down by this Court. That ground was that the provisions of the Act were
unconstitutional.
The question is: can the petitioner in this case take advantage, after a lapse of a
number of years, of the decision of this Court? He moved the High Court but
did not come up in appeal to this Court, His contention is that the ground on
which his petition was dismissed was different and the ground on which the
statute was struck down was not within his knowledge and therefore he did not
know of it and pursue it in this Court. The answer to that is law will presume
that he knew the exact ground of unconstitutionality. Everybody is presumed to
know the law. It was his duty to have brought the matter before this Court for
consideration. In any event, having set the machinery of law in motion he
cannot abandon it to resume it after a number of years, because another person
more adventurous than he in his turn got the statute declared unconstitutional,
and got a favourable decision.
If it is held otherwise, then the decision of the High Court in any case once
adjudicated upon may be questioned in a fresh litigation revived only with the
argument, that the correct position was not known to the petitioner at the time
when he abandoned his own litigation. There is no question here of a mistake of
law entitling the petitioner to invoke the jurisdiction of the Supreme Court.
The grounds on which he moved the Court might well have impressed this
Court which might also have decided the question of the unconstitutionality of
the Act as was done in the subsequent litigation by another party. The present
petitioner should have taken the right ground in the High Court and taken it in
appeal to this Court after the High Court decided against it. Not having done so
and having abandoned his own litigation years ago, the Court should not give
him the relief now.
A writ under Article 32 will no doubt issue as a matter of course where
infringement of fundamental right is established but that does not mean that in
giving relief under the said article, this Court would ignore all laws and
procedure.