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Cites 4 docs
Article 133(1) in The Constitution Of India 1949
Sri Sri Shiba Prasad Singh vs Maharaja Srish Chandra Nandi on 18 July, 1949
The Sales Tax Officer, Pilibhit vs Messrs. Budh Prakash Jai Prakash on 3 May, 1954
Article 226 in The Constitution Of India 1949
Citedby 2 docs
Commissioner, Sales Tax vs Auraiya Chambers Of Commerce on 14 July, 1970
Prem Cables Pvt. Ltd. vs Assistant Collector (Principal ... on 6 September, 1978

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Allahabad High Court
The Sales Tax Officer And Ors. vs Kanhaiya Lal Makund Lal Sarraf on 30 July, 1956
Equivalent citations: 1956 7 STC 658 All
Author: S Mootham
Bench: Mootham, Chaturvedi

JUDGMENT Sarraf Mootham, C.J.

1. This is an application for leave to appeal to the Supreme Court from a judgment of this Court dated the 1st December, 1955, dismissing an appeal from an order of Mr. Justice Chaturvedi dated the 30th November, 1954. The applicants are the State of Uttar Pradesh, the Commissioner of Sales Tax, Uttar Pradesh, and the Sales Tax Officer, Banaras. The respondent firm is a dealer in bullion and in gold and silver ornaments, and as part, of its business it entered into forward contracts in silver. In respect of such contracts it was assessed to sales tax for the years 1948-49, 1949-50 and 1950-51 in a sum of Rs. 1,365-12-0 and these amounts it duly paid. Subsequently this Court held, and its decision was affirmed by the Supreme Court in Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash [1955] S.C.R. 243, that the provisions of the U.P. Sales Tax Act purporting to impose a sales tax on forward contracts were ultra vires ; and thereafter the respondent firm applied to the Commissioner of Sales Tax, U.P., for a refund of the aforesaid sum of Rs. 1,365-12-0. The refund being refused, the respondent firm filed a petition in this Court under Article 226 of the Constitution for a writ of mandamus requiring the applicants to refund the amount of tax paid by it. That petition was allowed by an order of Chaturvedi, J., and it is from the judgment of this Court dismissing the appeal from that order that this application has been made.

2. The question raised by the applicants is whether moneys voluntarily paid as tax by an assessee, under a law to which the assessee had submitted but which is later declared invalid, is a payment under a mistake of fact or law which is recoverable. There is no doubt that the question is one of great public importance the decision of which will affect a large number of persons in this State and the liability of the State to refund a very considerable sum of money.

3. The application is opposed. Learned counsel for the respondent firm has contended that the question, has been authoritatively determined by the Judicial Committee of the Privy Council and leave should not therefore be granted. This Court was of the view that the decision of the Privy Council in Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi (1949) 76 I.A. 244, if correctly decided, concluded the appeal against the appellants and it was, with respect, of opinion that the decision of the Judicial Committee was right. A judgment of the Judicial Committee is however no longer binding upon either this Court or the Supreme Court, and in the absence of a decision by the Supreme Court on the question at issue we think it impossible to say that that question has been authoritatively determined.

4. The second submission of learned counsel for the respondent firm is that the amount involved in the appeal, namely Rs. 1,365-12-0, is very small and that it would be oppressive if the Court granted leave and involved the respondent firm in the cost of fighting the case in the Supreme Court. We think there is much force in this submission, for as Lord Langdale said in Richard Spooner and Bomanjee Nowrojee v. Juddow 4 Moo. I.A. 353:

The question appears to be of very considerable importance; but you observe that the amount at issue is only a sum of Rs. 250 and for the purpose of deciding that, you put the respondent to the expense of this appeal. The question is, whether this prosecution being by the East India Company, and no doubt important to have decided, for the benefit of the whole country, the whole expense of this appeal should not be borne by them. However important it may be to establish the law, upon a question of this kind, it would be very wrong to put the party to so great expense in a case where so small amount is at issue.

5. In these circumstances we intimated to the Advocate-General that this was a case in which, in our opinion, leave to appeal should not be granted unless the State was prepared to pay the costs which would be incurred by the respondent firm. The Advocate-General has now given this Court an undertaking that the State will, in any event, pay the costs, charges and expenses incurred by or on behalf of the respondent firm as taxed by the Supreme Court. This undertaking being given, we are of opinion that this Court is justified in granting the application. We certify that this is a fit case for appeal to the Supreme Court under Article 133(1)(c) of the Constitution.

6. We make no order as to costs of this application.