It appears that the claim for refund in the instant case was made after 1st April, 1959.
Judge Revisions Sales Tax was legally justified in entertaining the revision application in question of the aforesaid Company after the lapse of several years from the date of the assessment order particularly when the appeal and the revision application of the Company in respect of the assessment year were dismissed?
The Sales tax Officer dismissed that application as barred by period of limitation prescribed under Article 96 of the First Schedule of the Indian Limitation Act, 1908.
For the same reason explanation III to section 2 h of the said Act which provided that forward companytract shall be deemed to have been companypleted on the date originally agreed upon for delivery and section 3B of the Act also must be held to be ultra vires.
On 5th April, 1954, the Madras High Court held in Gannon Dunkerley Co. v. The State of Madras, 5 S.T.C. 216 that the relevant provisions of the Act empowering the State of Madras to assess indivisible building companytracts to sales tax were ultra vires the powers of the State Legislature.
m e words Taxes on the sale of goods in entry No.
The questions relate to the assessment year 1949 50 and for subsequent years.
In view of the decision of the Allahabad High Court in Commissioner of Sales Tax, U.P. Lucknow v. Aurlsya Chamber of Commerce which was in respect of the assessment year 1948 49 reported in 30 STC page 41, the High Court was of the opinion that question No.
The revision was dismissed in September, 1958 on the ground that it had been filed after a long delay and was barred by limitation.
The assessee thereafter made a formal application for refund on 24th May, 1959.
763, 764 and 765 of 1970.
Therefore the levy and companylection of sales tax on forward companytracts was ultra vires.
From the Judgment and Order dated 19.1.1973 of the Allahabad High Court in Sales Tax Reference No.
It may be mentioned that the assessee had been taxed on the basis of sale of such forward companytracts.
Four identical questions were referred to the High Court.
It was subsequently found that the provision for taxation of sales tax on forward companytract was ultra vires.
Whether, the Addl.
m e assessee thereafter filed revision to the Court of Additional Judge Revision Sales Tax U.P. against the order of the Sales tax Officer rejecting the claim for refund.
5,014.3.3 for 1951 52.
Whether, in these cases in which refund was claimed on the principle of section 72 of the Indian Contract Act the period of limitation under Article 96 of the Limitation Act companyld be taken into companysideration by the Sales Tax authorities in refusing to allow refund?
Section 29 was added by U.P. Sales Tax Amendment Act VII of 1959 and came into force with effect from 1st April, 1959.
The Court of Additional Judge Revision Sales Tax P. directed refund of sales tax of Rs.3,535.3 for 1948 49, Rs.9,205.12 for 1949 50, Rs.3,653.8 for 1950 51 and Rs.
Whether under the circumstances of this case as stated above, the Addl.
The assessee was number liable to pay that money.
The assessee filed a revision as appears from the statement of case for quashing the assessment for the relevant year in 1955 i.e. within a year which was dismissed in 1958 on the ground that it had been filed after a long delay and was barred by limitation.
At the time when the taxes were paid and the assessment was made, there was numberlimitation.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
m e Additional Judge Revision Sales Tax U.P. held that there was numberperiod of limitation and ordered refund as mentioned hereinbefore.
874 876 of 1974.
1 aforesaid need number be answered, question No.2 aforesaid should be answered in the negative, question No.3 aforesaid in the affirmative and question No.4 aforesaid in the affirmative.
Judge Revisions Sales Tax was legally justified in holding that the sums deposited by the Company towards sales tax for the year 1949 50, was refundable to the companypany?
This position in law came to the knowledge of the parties only on this Courts decision being rendered on 3rd May, 1954.
As a companysequence, the assessee in this case filed a revision in 1955 for quashing the order for this year.
Under Section 11 3 of the U.P. Sales Tax Act, 1948 as amended from time to time the following questions were referred to the High Court for opinion at the instance of the Commissioner of Sales Tax and statement of the case was submitted.
The appellant issued a numberice to the State of Madras under section 80 of the Code of Civil Procedure claiming refund of the amounts companylected from them, and, as the demand was number companyplied with, filed a suit in the City Civil Court on 23rd March, 1955, for recovery of the amount of taxes illegally levied and companylected from them.
K. Verma and D.N. Mishra for the Respondent.
Whether, the observations subject, however, to the question of estoppel, waiver, limitation or the like made by their Lordships of the Honble Supreme Court in the case of Sales Tax Officer, Banaras v. Kanhaiya Lal Mukundlal Saraf, 1958 STC p. 747 , imply that the provisions of the Indian Limitation Act are applicable to cases under the P. Sales Tax Act and whether these observations are inconsistent with the view taken by the Honble High Court in the case of Sales Tax Commissioner, U.P. v. Sadasukh Veopar Mandal, 1959 STC p. 57 ?
The assessee subsequently filed an application before the Sales tax Officer for refund of the amount which was deposited in accordance with the assessment order for the year and the subsequent years under mistake.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These appeals by special leave arise from the decision of the High Court of Allahabad.
48, List II, Schedule VII of the Government of India Act, 1935, companyferred power on the Provincial Legislature to impose a tax only when there had been a companypleted sale and number when there was only an agreement to sell.
A. Gupta for the Appellant.
In The Sales Tax Officer, Pilibhit v. Messrs. Budh Prakash Jai Prakash, 1955 1 S.C.R. 243 5 S.T.C. 193 this Court held on 3rd May, 1954 that section 2 h of the Uttar Pradesh Sales Tax Act, XV of 1948, enlarging the definition of sale so as to include forward companytracts must, to that extent, be declared ultra vires.
This claim of refund was again made on 24th May, 1959.
A bench of five learned judges of this Court held that there was a well defined and well established distinction between a sale and an agreement to sell.
The main question involved is the question of refund of sales tax paid in respect of forward companytract.
The first proviso to section 29 is as follows Provided that numberclaim to the refund of any tax or other amount paid under this Act shall be allowed unless it was made within 24 months from the date on which the order for assessment was passed or within 12 months of the final order passed in appeal, revision or reference in respect of the order of assessment whichever period is later.
It may be mentioned that prior to 1st April, 1959, there was numbersection dealing with any period of limitation for refund.
