STATE OF MAHARASHTRA Vs. KAMLA MILLS LIMITED

JUDGEMENT

(1.) This appeal is preferred against the judgment of the Bombay High court allowing a writ petition by its order dated 23/6/1975/24/6/1975.

(2.) The respondent-Mills was a dealer registered under the Bombay Sales Tax Act. In respect of certain sales effected by it, it was found liable to pay sales tax under the said Act as determined by the assessment order dated 18/5/1954. The respondent did not question the order of assessment by way of an appeal but instituted a suit on 20/12/1955 being OS No. 402 of 1956 on the original side of the Bombay High court claiming refund of a sum of Rs. 65,187. 00 on the basis that the said amount was paid by him under a mistake of law. The respondent relied upon the decision of this court in Bengal Immunity Co. Ltd. v. State of Bihar as furnishing the cause of action for the suit, since it is from the said decision that it claimed to have discovered the mistake in paying the saidtax. The suit was dismissed on 11/8/1960 as not maintainable in view of the bar contained in Section 20 of the Bombay Act. An appeal was preferred by the respondent to the division bench was dismissed. The matter ultimately came to this court. This court affirmed the judgment of the High court on 23/8/1955

(3.) On 24-5-1965, the respondent says, it filed an application for refund before the Commissioner of Sales Tax, which was rejected on 10-6-1965. The respondent thereupon, filed a writ petition in the Bombay High Court being miscellaneous Petition No. 363 of 1965. However, the respondent withdrew the said writ petition stating that it wishes to pursue the remedies provided by the statute. The respondent then filed an appeal, on 3-5-1966, against the order of assessment dated 18-5-1954 before the Assistant Commissioner, Sales Tax with an application for condoning the delay. The said authority refused to condone the delay and dismissed the appeal. The respondent filed a writ petition in the bombay High Court questioning the appellate order on 17-8-1966. The writ petition remained pending in the High Court for nine years. The Sales Tax authorities (respondents in the writ petition) filed two counter-affidavits. In the first counter-affidavit filed on 21-3-1969, the authorities generally denied the contentions as well as the factual basis of the contentions raised in the writ petition but without specifically denying each averment individually. However, before the writ petition came up for hearing, a detailed counter-affidavit was filed denying each and every fact on the basis of which the respondent claimed the relief of refund in the said writ petition. The Division Bench which heard the writ petition observed that the authorities did not specifically deny the several material facts contained in the writ petition in their first counter and that they chose to do so only after nine years when the writ petition came up for hearing. On that basis, the Division Bench held that there was no real controversy as to the material facts and therefore the respondent is entitled to relief claimed.