K VISWANATHAN Vs. STATE OF MADRAS

JUDGEMENT

(1.) This appeal arises from the decree of the Second Assistant City Civil Judge, Madras, in O. S. No. 1722 of 1956 dismissing the suit instituted by the appellant for recovery of a sum of Rs. 17,252-7-0, under the following circumstances.

(2.) The appellant is the Proprietor of a picture house in Madras known as "Chitra Talkies". Under the provisions of the Madras Entertainments Tax Act the appellant paid certain sums by way of entertainment tax in respect of the five annas ticket sold by him between the period 15th August 1949 to 18th October 1953. The amount paid was at the rate of one anna per five annas ticket. The appellant later on discovered as a result of a communication received from the Assistant Commercial Tax Officer that the tax due on a ticket of the gross value of five annas was only nine pies, and not one anna, and alleging that he had paid a sum of Rs. 17,252-7-0 by way of excess tax under a mistake of law, filed the suit for recovery of that sum from the Government 2a. The suit was contested substantially on three grounds, (1) that the payment made to the Government was not the money of the appellant hut what was collected by the appellant on its behalf, (2) that the appellant would not be entitled to obtain a refund of payment made voluntarily, though under a mistake of law, (3) that the claim was barred by limitation under Section 18 of the Madras Entertainments Tax Act. The learned City Civil Judge upheld the objections of the Government under all the three heads and dismissed the suit. Hence this appeal.

(3.) It is unnecessary to consider the correctness or otherwise of the view taken by the Assistant City Civil Judge on the question whether a party would be entitled to relief in respect of a payment under a mistake of law, or whether the suit claim was barred by the provisions of Section 18 of the Madras Entertainments Tax Act as we are of opinion that his conclusion on the first point is correct.