STO, 2ND CIRCLE, ERNAKULAM Vs. C. S. MENON

JUDGEMENT

(1.) The short question raised in this appeal is whether the respondent can seek a direction under Art.226 of the Constitution for refund of certain amounts paid by him by way of Sales Tax for the years 1950 - 51 to 1959 - 60. The respondent was assessed to Sales Tax for these years on the turnovers pertaining to works contracts as well. The details of the turnover pertaining to works contract and the corresponding Sales Tax on those amounts have been detailed in the affidavit in support of the writ application and there is no controversy regarding the correctness of those amounts. The question only is whether the petitioner can claim a direction for refund of those amounts in an application under Art.226 of the Constitution.

(2.) The learned Judge has allowed the application and directed the refund. The respondent has prayed for quashing the assessment orders in addition to the relief for refund. No question therefore arises about the assessment orders standing in the way of any refund being directed. That the transactions in question are not taxable to Sales Tax is well established now and it not disputed before us. There is constitutional inhibition about taxing such transactions and the assessments therefore have to be treated as void being against the provisions of the Constitution. In these circumstances, the only question is whether the impediment if it is one provided by S.23A of the General Sales Tax Act, 1125, can operate as a bar. It is unnecessary to labour the point for the question involved is covered by more than one decision of the Supreme Court. There has been an exhaustive survey of the rulings in a very recent judgment of the Supreme Court in civil appeals 260 - 263 of the year 1967. The learned Chief Justice after such review has formulated certain conclusions at the end of the judgment. It appears to us that Conclusion No. (4) so formulated must apply to the facts of this case and that conclusion is in these terms: