Karam Chand Thapar and Bros. Coal Sales Ltd. vs The State of Punjab and Others

P.C. Pandit, J.—The petitioner in this writ petition under Articles 226 and 227 of the Constitution is a Public Limited Company known by the name of M/s Karam Chand Thapar and Brothers (Coal Sales) Limited, Amritsar. According to the petitioner they had been doing the business of procuring coal and coke as del credre agents for the authorised consumers of coal in Whose favour permits for the purchase of coal were issued by the proper authorities under the provisions of the Colliery Control Order, 1945, as amended in 1952. From the year 1953, they also started running a small coal and coke depot at Model Town, Amritsar, for meeting the requirements of small-scale consumers and for this purpose they themselves had been buying coal as a permit-holder and then selling the same to the consumers.

The East Punjab General Sales Tax Act of 1948 (hereinafter referred to as the Act), came into force with effect from 1st May 1949. u/s 7 thereof a "dealer", which term had been defined in the Act, had to get himself registered with the Sales-Tax Authorities. According to the petitioner, under a mistaken notion of Law, they got themselves registered with a view to avoid subsequent legal complications or possible penalties under the Act for both categories of their business. Consequent upon this registration the assessments as well as advance tax demands followed in the subsequent years commencing from the assessment year 1949-50 to 1957-58. The assessed tax for these years was duly paid by the petitioner under a mistake of law. On 22nd March, 1959 the Deputy Secretary to Government of Punjab, Revenue Department, Chandigarh, however, addressed a letter to the General Secretary, Punjab Coal Merchants Association, informing them that the coal agents were not covered by the term "dealer" given in the Act and were not liable to pay sales tax. Meanwhile, various High Courts had also held that the coal agents were not ''dealers'' as contemplated by the Sales tax Acts of their respective States in view of the provisions of the Colliery Control Order, The Supreme Court also had held to that effect. Subsequent to the clarification made by the Punjab Government, the petitioner on 8th September, 1959 made two applications to the Excise and Taxation Officer, Amritsar, claiming the refund of the amounts illegally levied and collected by the Sales Tax Authorities from the petitioner as coal agents. For the assessment years 1949-50 to 1955-53 the assessments had been completed and final payments had been deposited, whereas for the assessment years 1956-57 and 1957-58 only advance payments had been made under Rule 40 of the East Punjab General Sales Tax Rules, 1949 and the final assessment orders were not yet passed. That is why, two separate applications for refund had to be made. In the first application relating to the assessment years 1949-50 to 1955-56, a refund of Rs. 74,053/12/9 was claimed, while in the second relating to the assessment years 1956-57 and 1957-58 a refund of Rs. 29 86711/- was asked for. On 7th December, 1960 The Sales Tax Assessing Authority, respondent No. 3, granted the second application and allowed the refund. It, however, made no'' order on the first application and kept silent. Dissatisfied with this attitude of respondent No. 3, the petitioner made a representation to the Excise and Taxation Commissioner, Punjab, Patiala respondent No. 2, on 20th December, 1961, Since a copy of this representation was also sent to the Senior Excise and Taxation Officer, Amritsar, he on 6th January, 1982 informed the petitioner that their representation had been filed after due consideration They were further advised to go in appeal or revision, if they so desired. Subsequently on 23rd May, 1962, respondent No. 2 also wrote to the petitioners Company that the facts of the cases for the assessment years 1949-50 to1955-56 were different from the facts that would warrant the application of the general proposition as laid down In the letter dated 22nd March, 1959 issued by the Deputy Secretary, Revenue Department and, therefore, no refund could be granted. It was further stated that the orders passed by the Assessing Authorities were in order and in case the ''petitioner considered them otherwise, they should have got them set aside by resorting to legal remedy. This led to the filing of the present writ petition on 15th October, 1962 and two relief''s have been claimed by the learned counsel for the petitioner before me,

(i) a writ of certiorari "quashing the order of the respondents levying and confirming the levy purporting to be sales-tax" and

(ii) a writ of mandamus directing the respondents to refund the amount of Rs. 74,053/12/9 paid during the assessment years 1949-50 to 1955-56.

In the return filed by the respondents, it was stated that the petitioner was a "dealer" and was doing business in coal. It was on their application dated 22nd March, 1949 that a registration certificate was issued to them on 30th March, 1949. Their assessment was framed in accordance with the provisions of the Act. At no stage did they object to this assessment challenging their registration as a "dealer". As regards the refund of Rs. 29,867/11/ relating to the assessment years 1956 57 and 1957-58, it was stated that the same was wrongly allowed and even the facts were quite different from those for the years 1949-50 to 1955-56. It is apparent from the assessment orders for the years 1956 57 and 1957-58 dated 7th December, 1960 (annexures ''K'' and ''K-1'' to the writ petition) that the petitioner-Company had filed affidavits statins the rein the business conducted by them as coal agents and as depot-holders. These affidavits had not been contradicted by the Department and, therefore, the figures therein, were taken to be correct by the Assessing Authority. In the assessment orders relating to the years 1949-50 to 195S-56, no such distinction between their business as coal agents and as depot holders had been made and no relief from sales-tax was claimed by them as coal agents. So far as the application for the refund of the sales-tax regarding the assessment years 1949-50 to 1955-56 was concerned, it was mentioned that this application had been duly considered by the Assessing Authority and the petitioner had been informed that it had been filed after due consideration. The. petitioner was further asked to go up in appeal or revision as the case may be under sections 20 and 21 of the Act.

The only contention raised by the learned counsel for the petitioner was that the petitioner Company were merely coal agents and, consequently, not covered by the term "dealer" as defined in the Act. on such the Assessing Authority had acted without jurisdiction in assessing them to sales-tax and recovering the same from them. All the assessment orders, therefore, were liable to be quashed and the petitioner was also entitled to the grant of a writ of mandamus directing the respondents to refund the amount so collected. It may be mentioned that the learned counsel for the, petitioner specifically stated before me that it was not his case that the assessment orders sufferer from any error of law apparent on the face of the record.

It is common ground that in the relevant years, when the assessment were being made, no objection was taken by the petitioner before the Assessing Authority that they were merely coal agents and not ''''dealers" as defined in the Act. The Assessing Authority, naturally, therefore, had not to decide this point and assessed them to sales-tax reading them as "dealers". It is also undisputed that the petitioner Company did not file any appeal or revisions against those assessment orders, but paid the sales-tax due from them. These orders, therefore, became final under the Act. On 22nd March, 1959 the Deputy Secretary, Revenue Department, wrote to the General Secretary, Punjab Coal Merchants Association, and informed him that the "coal agents" were not covered by the term "dealer" as defined in the Act. Subsequently, in 19C1 the Supreme Court, in the The State of Bombay Vs. Ratilal Vadilal and Bros., held that the coal agents like the petitioner were not covered by the term "dealer" as defend in the Act. The question is what would be the effect of the letter of the Deputy Secretary and the Supreme Court decision on the assessments which have already become final under the Act. Admittedly, no objection regarding this point was taken before the Assessing Authority at the relevant time. It is stated by the learned counsel for the petitioner that this objection could naturally not have been raised by them, since they did not know of the same and it was only when the Deputy Secretary wrote that letter that they moved the Authorities on 8th September, 1959 for the refund of the sales tax illegally recovered from them. It was under a mistake that they paid the sales-tax and, as such, according to them, they were entitled to its refund. I am unable to subscribe to the view that by the above decision of the Supreme Court all the previous assessments made by the Assessing Authority, which had become final under the Act, became without jurisdiction. If the Supreme Court decides a matter today, that obviously does not mean that alt the previous orders passed even fifty years back will become without jurisdiction on the basis of that decision. Moreover, if this point had been taken at the relevant time before the Assessing Authority, it was within his jurisdiction to decide whether a particular individual is covered by the definition of the word "dealer" or not. As has been laid down a number of times, he could decide that matter either rightly or wrongly. If there was some error of law in his order, the same could be set aside by the appellate or revisional authorities. It cannot, however, be said that the Assessing Authority had no jurisdiction to determine this precise question. Assuming for the sake of argument that the Assessing Authority had no jurisdiction to levy sales-tax on the petitioner-Company, even then I would not be inclined to quash the assessment orders in question after so much delay in proceedings under Article 226 of the Constitution for the simple reason that on the present record it is not possible to determine as to how much amount of sales-tax was recovered'' "from them as coal agents during. the relevant years. In Para, 4 of the writ petition it was stated that the petitioner-Company at all the Relevant.times-had been doing the business of procuring coal and coke as del credre agents for the authorised consumers of coal in whose favour permits for the purchase of coat were issued by the proper authorities under the provisions of the Colliery Control Order of 1945 as amended in 1952 and from the year 1953, the Company started running a small coal and coke depot as well at Model Town, Amritsar, for meeting the requirements of small scale consumers. In reply to this paragraph, the respondents in their written statement merely admitted that the petitioner was a "dealer" and were doing business in coal. The rest of this paragraph, however, was not admitted and thus this becomes a disputed question of fact.

So far as the prayer for the writ of mandamus for the refund of the amount claimed in the writ petition is concerned, this question does not arise in view of my finding that the assessments orders were not without jurisdiction and, consequently, not liable to be quashed. Even if these assessments orders are held to be without jurisdiction, yet in my opinion, the petitioner Company is not entitled to this relief, because in the first place, it has not been admitted by the respondents as to how much amount is due to the petitioner-Company on account of the sales-tax having been paid by them as coal agents during the relevant assessment years. This question of fact will have to be determined in suitable proceedings. Secondly, it was argued by the learned Advocate-General that the petitioner could not be refunded this amount as the same had become barred by limitation, even if the limitation was to be counted from 22nd March, 1959, which was the date of the Deputy Secretary a letter. The contention of the petitioner, on the other hand, was that they had got the knowledge of the Deputy Secretary''s letter much later, that is, on 8th September, 1989 when they filed applications for the refund of these amounts. This is again a disputed question and cannot be properly determined in these proceedings. It was laid down by their Lordships of the Supreme Court in Stats of Madhya Pradesh v. Bhailal Bhai A I.R. 1864 SC. 1006.

At the same time the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where a person comes to the Court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the Court, if it finds that the assessment was void, being made undet a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may, however, be, stated as a general rule that if there, has been unreasonable delay the Court caught not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation, the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil Court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.

The above mentioned passage was quoted with approval in a later Supreme Court decision in Sugan Mal v. State of Madhya Pradesh and others 1965 S.T.C. 398 The Supreme Court decision in State of Madhya Pradesh v. Bhailal Bhai A I.R. 1864 S C. 1006 fully covers the present case.

This writ petition, consequently, fails and is dismissed. But the parties are, however, left to bear their own costs.