The firm preferred an application for refund of Rs.
On the facts of that case the Court held that both the parties were labouring under a mistake of law the legal position as established later as by the decision of the Allahabad High Court in Budh Prakash Jai Prakash v. The S.T.O. Kanpur subsequently companyfirmed by this Court in S.T.O. Pilibhit v. Budh Prakash Jai Prakash 2 number having been known to the parties at the relevant time.
They might number have then known the precise ground upon which the Court subsequently struck down a similar provision of law, but they had discovered presumably under legal advice that they were number legally bound to make any payment.
26,563.50 P to the Collector of Bombay.
1 by a Constitution Bench companysisting of S.R. Das, C.J. and Bhagwati, S.K. Das, J.L. Kapur and Subba Rao, JJ.
The above judgment of the Allahabad High Court was companyfirmed by this Court on May 3, 1954 see Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash 2 .
In Civil Appeal No.
The appeal was dismissed on July 13, 1959.
In the meantime on December 24, 1958 the Collector of Bombay attached the petitioners properties.
The appellants Special Appeal from the said order companytending that money paid under a mistake of law was irrecoverable being dismissed, a further appeal was taken to this Court under a certificate.
The firm claimed that it was entitled to a refund of the amount which it had companylected from its customers and paid on account of the aforesaid sales at the time of submitting the returns of its turnover.
Bhagwati and Subba Rao JJ.
He held that the petitioners having defrauded other persons were number entitled to any relief.
In the meanwhile the respondent had filed a writ petition No.
The firm went up in appeal to the same High Court.
26,563.50 on November 13, 1956 whereupon the Assistant Collector the appellate authority simultaneously with the issue of a cheque for the above amount by way of refund wrote a letter dated May 11, 1957 to the effect that the petitioner should produce before him within one month of the date of the cheque receipts totalling Rs.
12,517/68 on account of late payment of sales tax dues but this order of penalty was ultimately cancelled.
As the earlier petition filed in the High Court was number dismissed on the merits, the present petition is number barred by res judicata or principle analogous thereto.
13,42,165 15 6 were number liable to be taxed under the provisions of the Bombay Sales Tax Act then in force as the goods were delivered as a direct result of such sales for purposes of companysumption outside the State of Bombay.
As early as March 1958 they filed a wait petition for restraining the levy under the order dated March 17, 1958 claiming that the order was invalid and that s. 21 4 of the Bombay Sales Tax Act, 1953 was ultra vires and unconstitutional.
355 of 1952 in the High Court for quashing the ,assessment orders which was allowed by an order of a single Judge on November 30, 1954.
2 1955 1 S.C.R. 243.
They pleaded that they were number liable to pay the amount, that s. 21 4 was ultra vires the powers of the State legislature and that the order of forfeiture was violative of Arts.
19 1 f and 31 of the Constitution.
Dealing with the petition of the firm the learned Judge said that there was numbermerit in the case and justice did number lie on the side of the petitioner and for reasons given in Pasha Bhai Patel and Co.s case the petition was dismissed.
72 of the Contract Act In Mukundlals case 1 the respondent firm had paid sales tax in respect of its forward transactions in pursuance of the assessment orders passed by the Sales Tax Officer for the years 1949 to 1951.
26,563.50 P under s. 72 of the Indian Contract Act 1872.
53 of 1968.
On March 28, 1958 the petitioners filed a writ petition in the Bombay High Court seeking to restrain the Sales Tax Officer from recovering the amount.
The levy of sales tax on forward transactions being held to be ultra vires by the High Court of Allahabad by its judgment delivered on February 27, 1952 in the case of Budh Prakash Jai Prakash v.S.T.O. Kanpur, the respondent by its letter dated 8th July 1952 asked for a refund of the amount of sales tax paid by it under assessment orders passed on May 31, 1949, October 30, 1950 and August 22, 1951.
After the writ petition was dismissed their properties were attached and they made the payments under companyrcion in 1959 and 1960.
SIKRI and HEGDE, JJ.
The petitioners realised Rs.
This appellate order was passed on November 7, 1956.
delivered separate dissenting opinions allowing the petition.
19 1 f and 265 of the Constitution and was invalid.
agree with the order proposed by him.
Shiva Prasad Singh v. Srish Chandra Nandi 1 , Sates Tax Officer v. Mukundlal Saraf 2 .
ORIGINAL JURISDICTION Writ Petition No.
The Sales Tax Officer by his order dated March 17, 1958 forfeited this sum under s. 21 4 of the Bombay Sales Tax Act 3 of 1953.
K. Shah, B. Datta and J.B. Dadachanji for the petitioners.
He also failed in appeal before the Division Bench on July 7, 1959.
26,563 8 0 realised by way of tax were protected under Art.
The Sales Tax Officer did number accept this companytention but on appeal the Assistant Collector of Sales Tax upheld the firms companytention after examining the details submitted by it and found that sales involving the sum of Rs.
The petitioners filed an appeal against the order.
delivered segarate judgments dismissing the petition.
K. Daphtary, Attorney General, R. Gopalakrishnan, R.H. Dhebar and S.P. Nayar, for the respondents.
126 of 1966, Kantilal Bapulal Bros. v.H.C. Patel decided on September 29, 1967 this Court struck down s. 12 A 4 of the Bombay Sales Tax Act, 1946 as unconstitutional and violative of Art.
Between August 3, 1959 and August 8, 1960 the petitioners paid the sum of Rs.
26,563.50 P from their customers outside Bombay on account of sales tax.
They alleged that they paid this sum to the Collector under companyrcion and or mistake of law, and that they discovered the mistake on September 29, 1967.
HIDAYATULLAH, C.J., BACHAWAT and MITTER, JJ.,
In the memorandum of appeal, they pleaded that the threatened levy was in violation of Arts.
would allow the petition and Bachawat and Mitter, JJ.
The petitioner paid the sum of Rs.
Hidayatullah, C.J. This petition has led to a sharp division of opinion among my brethren Sikri and Hegde, JJ.
Petition under Art.
An order of attachment followed.
His petition was dismissed on November 28, 1958.
The Commissioner of Sales Tax P. refused to refund the ,amount claimed by letter dated July 19, 1952.
On February 9, 1968 the petitioners filed the present writ petition under Art.
286 of the Constitution.
On November 28, 1958, K.K. Desai, J. dismissed the petition.
26,563.50 in various instalments from October 3, 1959, to August 8, 1960.
26,563.50 should number be forfeited under s. 21 4 of the Bombay Sales Tax Act, 1953.
By letter dated January 9, 1962, the petitioner was called upon to pay a penalty amounting to Rs.
He therefore directed that the said sum be refunded to the firm on a proper application.
