MODERN INDUSTRIES Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THESE goup of petitions are between the same parties and raise common question of law and as such we propose to dispose them of by a common judgment.

(2.) THE assessee is a Hindu undivided family and manufacturers railway wagons. During the period covered by the assessment years 1961-62 to 1966-67, the Government of India through the Minisre assessee on terms and conditions, and stipulations contained in the Indian Railways Standard Conditions of Contract A5-51 (Revised), in so far as they were not inconsistent with the special conditions of contract, attached as per annexure A to the petition. The conditions of contract in each of the assessment years were substantially the same. During the assessment year 1961-62, the assessee received payment from the Government to the extent of Rs. 3,34,631. This amount was included in the turnover of the assessee and was subjected to tax by the order of assessment dated 14th June, 1965. The amount of tax imposed on this amount came to Rs. 6,692.62. In this year 1962-63, the turnover in respect of payment received for the supply of railway wagons was assessed at Rs. 36,74,055 and the tax imposed by the assessment order dated 19th June, 1965, was Rs. 73,481.10. In the year 1963-64, the turnover assessed was Rs. 93,90,376 and the tax assessed by the order dated 30th March, 1966, was Rs. 1,87,607.52. In the year 1964-65, the turnover was assessed at Rs. 1,34,43,604 by the assessment order dated 31st October, 1966, and the tax imposed came to Rs. 2,68,872.08. In the year 1965-66, the turnover was taxed at Rs. 1,33,72,816 and the tax assessed came to Rs. 2,67,456.32 as per assessment order dated 30th September, 1967. In the year 1966-67, the turnover in respect of this item was Rs. 93,54,422, and the tax assessed by the assessment order dated 23rd January, 1968, amounted to Rs. 1,87,088.44.

(3.) IN Burmah Construction Co. v. State of Orissa and Others ([1961] 12 S.T.C. 816 (S.C.); A.I.R. 1962 S.C. 1320), the assessee had paid tax under the Orissa Sales Tax Act. It does not appear that any appeals, etc., were taken against that assessment order. Sub-sequently, a writ petition under article 226 of the Constitution was filed before the Orissa High Court for a declaration that a certain provision of the Orissa Sales Tax Act authorising the imposition of sales tax on a turnover of "works contracts" and "repair works" was ultra vires the State Legislature, and also for refund. The Orissa High Court allowed the petition, but directed refund only of such amounts as were not barred under section 14 of the Orissa Sales Tax Act. That provision is in pari materia with section 29 of our Sales Tax Act, and imposes a limitation of twenty-four months for claiming refund of tax. Before the Supreme Court, it was contended that section 14 of the Act which imposed a period of limitation for refund of tax was ultra vires. This contention was repelled. It was, however, held that the High Court can in a petition under article 226 of the Constitution direct payment of money against the State, or against an officer of the State, to enforce a statutory obligation, and inasmuch as in the petition, the assessee had claimed for the enforcement of a statutory obligation imposed under section 14 of the Act, the petition was maintainable, but it could only be allowed subject to the restriction or the limitation contained in section 14 of that Act. The question as to whether the assessee had a right to recover the balance of tax, which was barred by limitation under statute, by way of suit was left unanswered.