KUNJU MOIDEEN KUNJU Vs. STATE

JUDGEMENT

(1.) Paragraphs 1 and 2 of the petitioners affidavit sum up the facts of the case as follows:-

(2.) All that could be urged in favour of the petitioners contention has been urged with success before the Madras High Court in (1954) 5 S.T.C. 382. After studying the judgment carefully and hearing Mr. K.K. Mathew on behalf of the petitioner we regret to say, with great respect, that we cannot find our way to adopt the conclusion reached in that decision. As we read the Act any amount collected by way of tax, that is, any amount that the petitioner obtained from his customers on the ground that it was the sales tax due on the transactions - whether such a tax was actually due on the sales or not - is a collection which has to be handed over to the State under the provisions of the Act. In other words, we see no reason to depart from the view that one of us has taken in (1954) 5 S.T.C. 58.

(3.) The question as to whether the petitioner is bound to return the amount in case his customer demands it back on the ground that it was paid under a mistake of law or whether the petitioner could claim a statutory immunity in respect of such demands is not a matter that arises for decision at present. We may mention in passing, however, that the position taken up by the State before us and by the learned Advocate General of Madras in the decision mentioned above was that if the person who paid the tax applies for a refund and establishes his claim therefor the same will be given by the State.