SUGANMAL NANDLAL BHANDARI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE petitioner in this case is the Managing Proprietor of Messrs. Bhandari Iron and Steel Company, Indore, engaged in the business of mechanical engineering, iron and brass foundry, and steel re-rolling. During the years 1939 to 1948 the government of the former Holkar State recovered from the Company Rs. 1,75,722-5-2 as industrial tax. The tax was levied and recovered under the Indore industrial Tax Rules, 1927. The Company's appeals against the assessment for those years were allowed by the Appellate Authority under the Rules in 1955. The assessment orders under the demand notices for each year were set aside. No direction was, however, made in any appeal with regard to the refund of the tax amount recovered from the Company. After the setting aside of the orders of assessment the petitioner made a demand on the Government for the refund of the industrial tax amount which had been recovered from the Company. A sum of Rs. 74,961-9-0 was refunded to the applicant. A further sum of Rs. 37,951-7-0 was adjusted against the petitioner's liability for excess profits duty. The balance of Rs. 62,809-5-2 out of the sum of rs. 1,75,722-5-2 recovered from the applicant remained to be refunded to the applicant. The petitioner's request for the return of this balance was rejected by the former State of Madhya Bharat. Thereupon, this application under Article 226 of the Constitution was filed for the issue of a writ of mandamus directing the opponent-State to refund the amount of Rs. 62,809-5-2 to the petitioner.

(2.) THE petition has been opposed by the opponents on the grounds that the applicant was not entitled to receive back the amount of Rs. 62,809-5-2, that the claim for refund was barred by limitation, and that the petitioner's proper remedy for refund was by way of a suit and not by way of proceedings under Article 226.

(3.) HAVING heard learned counsel for the parties we have reached the conclusion that this application must be dismissed. The Indoro Industrial Tax Rules under which the petitioner was assessed and he paid the amount of industrial tax do not contain any provision for the refund of a tax amount to the assessee on the setting aside of an assessment. Shri Chaphekar, learned counsel appearing for the petitioner, relied on Rule 8a (2) of the Rules to contend that on the setting aside of the assessment it was obligatory on the State to refund the amount of tax to the petitioner. In our judgment, Rule 8-A (2) has no applicability whatsoever here. It only provided that on completion of the final assessment after the provisional assessment the difference, if any, in the tax payable should be recovered from or refunded to the assessee as the case may be within one month of the date of completion of the final assessment. It is difficult to spell out from this a statutory obligation for the refund of the tax amount to the assessee in the event of the final assessment being set aside. When, therefore, the Rules do not cast any statutory obligation on the State to refund the tax amount there can be no question of the issue of a writ of mandamus for enforcing a statutory duty or obligation.