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864af7950f7a-32 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 78. This decision, if we may say so makes a notable break through and is an important landmark in the growth of the administrative law. It removes the effects of the above said two earlier decisions of the Supreme Court and revises the position of law as it existed before the said two Supreme Court decisions. Now the employees not only of the State but also of statutory bodies, public and local authorities can avail of the protection which Article 226 provides if they point out any violation of a delegated legislation or scheme or order or bye-law or breach of natural justice. A large number of employees who were denied access to the High Court for redressal of their grievance have now been again brought under the protective umbrella of Article 226.
79. Even in India at one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again if, was extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of citizens were affected. It now stands extended to public bodies discharging public functions. The only constant limits throughout were that the body concerned was under a duty to act judicially or fairly and that it was doing a public duty. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-33 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 80. It is also relevant to note that the English decision in ((1964) 3 All ER 865) on which reliance was placed in is no more good law in view of Malloch v. Aberdeen Corporation, (1971) 1 WLR 1578. In that case, a lecturer in Scotland was dismissed by the Education Committee. It was challenged on the around of being against natural justice. The House of Lords held that the lecturer had a right to be heard before being dismissed as he was holding an office. The House of Lords thus refused to follow the Privy Council decision in Silva's case, (1964) 3 All ER 365 where the University had dismissed a Professor without hearing him and the Privy Council refused to quash the order of dismissal. Vidyaram's case noted the fact that Silva's case was criticised by academic writers. Nevertheless observing that the decision may be correct or not in effect followed it.
81. The decision in Silva's Case (1964) 3 All ER 865 was also commented upon in Malloch's case (1971) 1 WLR 1578, Lord Wilberforce said:
"...............I must confess that I could not follow it (the Silva case) in this country in so far as it involves a denial of any remedy of administrative law to analogous employments. Statutory provisions similar to those on which the employment rested would tend to show to my mind, in England or in Scotland that it was one of a sufficiently public character, or one partaking sufficiently of the nature of an officer to attract appropriate remedies of administrative law."
82. For the same reasons, the decision of this High Court in 1973-1 An WR 94 cannot be said to be good law. We find it difficult to agree with it. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-34 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 83. What therefore follows is that now we have to bear in mind and . These decisions therefore call upon us to consider two questions :
1. "Whether the college in question falls within the decision of | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-35 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 2. Whether a writ of certiorari will issue even if it is found that an affiliated college is not a statutory body but a public body discharging public duties and even if it is found that the rules of affiliation have no force of law. Whether a writ can issue if the administrative instructions in rules of an affiliation or admission rules made by the Government are violated or there is a breach of Rule of natural justice?'"
84. In so far as the first question is concerned, it could not be disputed that the affiliation rules noted above are made in pursuance of the power conferred on the University by Section 44 (3) of the University Act. The rules therefore have force of law. It cannot be said that they Constitute power of management only. The rules requiring the governing body to be a registered body and that it should have on it representatives of the Government and the University and the qualifications of the teaching staff and the conditions governing their tenure of office all lend support to a tripartite contract between the governing body, the teacher and the approving authority i. e. the University and the Government. The teachers in such colleges have status under the rules and in any case they hold office. Apart from the express rules, the security of their tenure of office can easily be spelt out from the various provisions of the rules of the University as well as the grant-in-aid code of the Government. The Rules relating to the pay scales of the teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. We have no manner of doubt that these rules create certain "rights" in the teachers of the affiliated colleges. They are not mere servants of the college employee purely on contract by the managing committee of the college. They have a 'status' although they enter into a contract and in any case they hold office. We are therefore satisfied that such cases are clearly governed by the decision in . | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-36 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 85. Even otherwise, we think in an appropriate case a writ of certiorari can go against a private College although it is not a statutory body. The rules of affiliation, even if taken to be non-statutory but mere administrative instructions issued by the University or the grant-in-aid code by the Government they would not come in the wav of issuance of such a writ. We thus come to consider the second question.
86. We have seen that laid down that writ can issue against a public body or authority or bodies created under statute apart from the State. We have also seen that violation of any statutory provision, rule, regulation, scheme, order or bye-law or principles of natural justice can be a ground for the issue of such a writ. The logical next step from this premise is that a writ can issue against a non-statutory body even if it violates administrative or executive directions or instructions or acts in violation of principles of natural justice. This logical sequence finds sufficient support from the two Supreme Court decisions.
87. has issued a writ against a private college which was a non-statutory body. It is true that in that case a preliminary objection was raised that mandamus will not go against a non-statutory body but it was disregarded on the ground that it was not raised at appropriate time. But there could not be any difficulty in so far as writs of certiorari, prohibition or declaration are concerned. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-37 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 88. In AIR 1973 SC 355 = (1973 Lab IC 453) their Lordships have referred to the decision of the House of Lords in McClelland v. Northern Ireland General Health Services Board. ((1957) 1 WLR 594). It was held in that case that the dismissal of the plaintiff by the Board on the ground of redundancy of staff was not one of the grounds specified in the terms and conditions of service. It was found that the dismissal could be on specified grounds, i. e. gross misconduct. A declaration was granted in favour of McClelland on an originating summons as to whether the agreement of service was validity terminated. It is quite important to note that it was not a case of Government servant. There was no question of breach of statutory provisions. The employment was based on contract. The court found that the express power of the Board did not include reduction on the ground of redundancy. The most important aspect which lends support to the view we are taking is that the court spelt out security of status in employment. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-38 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 89. In R. v. Criminal Injuries Compensation Board. Ex parte Schofield. ((1971) 1 WLR 926) a lady made a claim to the Criminal Injuries Compensation Board, a body established in 1964 for compensating victims of violent crime. Neither the Board, nor the compensation scheme were statutory. They were set up merely administratively, the Government explaining the details to Parliament and Parliament voting the money. The applicant claimed that she was entitled to an award under the published rules of the scheme which covered personal injury directly attributed either to a criminal offence or to an arrest or attempted arrest. She had been knocked down while a suspected thief was being chased, and the Board held that since she was a mere bystander she could not qualify. The Court quashed that decision for error if law on its face. This decision enforced non-legal and non-statutory rules against the non-statutory body and enforced a right which was not legally enforceable before The classic formula under which certiorari issues to bodies deciding question affecting the rights of subjects has therefore now become too narrow.
90. Bernard Schwertz and H. W. R. Wade in their book on "Legal Control of Government" at page 104 regarding this case say:
"This move may open an important new territory. The Government may sometimes be tempted to establish administrative schemes on a non-legal basis in order to give themselves an entirely free hand and exclude judicial interference. The new decision shows that the Courts may not held themselves barred by that expedient and that their arm may be long enough to reach into the regions of non-statutory discretion."
91. The abovesaid decision followed an earlier important case (1967) 2 QB 864. This is the case on which reliance was placed by the earlier bench decision of this court referred to above. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-39 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 92. In that case, a strong Divisional Court held that a public body required to make determinations affecting individual interests in a judicial manner was subject to review by certiorari despite the fact that it was neither constituted by the statute nor endowed with jurisdiction by a statute. In that case, the Board was set up by purely administrative action for the purpose of determining in accordance with clearly formulated rules, claims to "ex gratia payment" to be made from finances supplied by parliament by virtue of criminal violence, was not allowed to escape the judicial superintendence merely because it did not rest on a formal statutory basis. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-40 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 53. Lord Parker. C. J., while considering the question whether the Board was a body of persons amenable to the supervisory jurisdiction of the Court, considered (1924) 1 KB 171, particularly the observation which we have extracted above. The learned Chief Justice then said :
"I can see no reason either in principle or in authority why a Board set up as this Board was set up, is not a body of persons amenable to the jurisdiction of this Court. True, it is not set up by a statute. But the fact that it is set up by executive Government under the prerogative does not render its acts any the less lawful Indeed the writ of certiorari has issued not only to courts set up by statute but to courts whose authority is derived, inter alia from the prerogative. Once the jurisdiction is extended, as it clearly has been, to tribunals as opposed to Courts, there is no reason why the remedy by way of certiorari cannot be invoked to a body of persons set up under the prerogative. Moreover, the Board though set up under the prerogative and not by statute and in fact the recognition of Parliament in debate and parliament provided the money to satisfy it awards." The learned Chief Justice at page 882 lurcher observed : | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-41 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | "The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have carried from time to time being extended to meet changing conditions. At one time the writ only went to inferior Court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned."
The learned Chief Justice finally observed at the same page :
"We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a Public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially." | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-42 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 94. In Hannam v. Bradford City Council, (1970) 2 All ER 690, the plaintiff, a school master at an aided voluntary school maintained by the Council, absented himself and refused to return to the duties in the school. His appointment was terminated at a meeting of the school governors and he was given notice. Thereafter a sub-committee of the Council met and held an enquiry whether the council should exercise its power to prohibit the dismissal of the plaintiff. This power was crystallised in the school's Articles of Government and the council's conditions o service of teachers which included a right to have a hearing. Three of the ten members of the sub-committee were governors of the school, none of them, however, had attended the meeting of the governors of the school. The staff sub-committee resolved not to prohibit the plaintiff's dismissal and this decision was later approved by the full council. It was held that the decision of the staff sub-committee which was a quasi-judicial decision could not stand because the fact that the three governors of the school sat on the sub-committee gave rise to the possibility of bias. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-43 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 95. In Herring v. Templeman, (1973) 3 All ER 569, the plaintiff was a student at a teacher training college, a charity constituted by a trust deed. The plaintiff brought an action against three representative members of the governing body in which he sought a declaration that the resolution of the governing body and the recommendation of the Academic Board were ultra vires null and void, and an order that he be readmitted as student. The defendants moved for an order that the plaintiff's statement of claim be struck out and the action dismissed as disclosing no reasonable cause of action. It was held that the allegations in the statements of claim would be struck out as there has been no breach of the rules of natural justice.
96. In Regina v. Aston University Senate, (1969) 2 WLR 1418, the applicants were University students. They failed in subsidiary subjects. The marks of all students who had failed were considered in the light of their Academic and personal histories. As a consequence, the applicants were asked to withdraw from their course. The students applied for a certiorari to quash the decision asking them to withdraw and the mandamus requiring the University to determine according to law whether they should re-sit for examination or be asked to withdraw. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-44 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 97. It is relevant for our purpose to note that the University of Aston was incorporated by Royal Charter in 1966, the Charter giving power to make ordinances and regulations. Regulations duly provided that candidates who failed in examination might be required to withdraw. A Royal Charter confers the powers of a natural person only and this results in a sharp distinction between chartered and statutory bodies. Having no statutory force the regulations were administrative only. In spite of these facts, the petition was entertained and although it was held that the students should have been given an opportunity of being heard and since it was not given, there had been a breach of natural justice, the petition, however, was dismissed on the ground that prerogative remedies "should not be available to those who sleep upon their rights." | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-45 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 98. In this connection it is quite relevant to refer to Halsbury's Laws of England, IV Edition, page 150, where it is said:
"Certiorari may issue to inferior statutory tribunals such as the Patents Appeal Tribunal and to inferior non-statutory tribunals discharging functions of public nature." | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-46 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 99. These decisions make it abundantly plain that the earlier Bench decision in (1971) 2 An WR 352 was rightly decided. The jurisdiction to supervise the exercise of their jurisdiction by inferior tribunals has never been dependent upon the source of the tribunal's authority to decide issues submitted to its determination except where such authority is derived solely and exclusively from agreement of the parties to the determination. This latter case falls within the field of private contract and is within the jurisdiction either of an arbitrator or the civil court. In so far as certiorari prohibition and declaration are concerned, these writs can be issued against a non-statutory body discharging public duties. More so when these public bodies receive grants from the Government as voted in the Legislature and are affiliated to the University which is a statutory body and controlled by it. Public bodies such as affiliated colleges placed as they are cannot be called as pure private bodies discharging purely private duties. Nor they can be characterised as domestic tribunals in the strict sense of that word. The relationship of teachers with such colleges is based on a tripartite arrangement and contract. Their appointment is made by a committee constituted under the statute as above, The appointment is to be approved by the University. There can be an appeal against any order in any dispute between the teacher and the college to the University as well as to the Director of Public Instruction. The University can direct the teacher to be reinstated: so also the Director of Public Instruction can. The teachers' salaries are fixed. The tenure of office assured. In some cases their salaries can directly toe paid to them by the Director of Public Instruction. All these and other features clearly and unmistakably point out that the teachers of affiliated colleges have a status apart from their contractual relationship and in any case they hold office. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-47 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 100. We think that a pure "master and servant case" must be distinguished from the case of a teacher in an affiliated college. A "pure master and servant case" may mean a case in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, as many of them exist in the instant case, then, in our opinion, whatever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void. (See Malloch v. Aberdeen Corporation (1971) 2 All ER 1278 at p. 1294).
101. Similar is the position with regard to students. Their admissions are governed by the University Rules and regulations. Government also has made certain rules relating to the admission to medical colleges. The affiliated colleges and the teachers and students of those colleges are all bound by these rules and regulations. Any administrative action which adversely affects the student must be taken after observing the rules of natural justice.
102. Thus whether it is a lecturer of an affiliated college or its student everyone of them can take advantage of the remedies provided in Article 226 of the Constitution. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-48 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 103. Let us in this background examine the instant case. The petitioner applied on 27-10-1973 for admission to the First Year Integrated M. B. B. S. Course in Kakatiya Medical College. He filed along with the application a domicile or Mulki certificate. The College authorities can verify the certificates so filed. Since in 1971 an application made by the petitioner was rejected on the ground not very clear, the college authorities wanted to verify the certificate. The petitioner was therefore directed to appear before the authorities on 10-9-1973 for verification of the domicile certificate along with this father or guardian. Accordingly the petitioner appeared but his father could not. He asked the authorities to postpone the consideration. A later date 14-9-1973 was therefore fixed orally. It is contended by the petitioner that it was 15th and not 14th. According to the College authorities since the petitioner did not appear along with his father on 14-9-1973, his admission was rejected and he was informed accordingly. On the other hand, the petitioner contends that he was present on 15-9-1973 with his father but no one cared to call them. It is conceded that the petitioner had passed the Entrance Test and was put in the list of admitted candidates. Since the necessity of Mulki certificate in the present context has lost significance, we do not propose nor are we called upon by the parties to decide the conflict between them with regard to the date of the petitioner's appearance. It is not held that the domicile certificate was bogus be forged one. In fact no enquiry was made. The admission of the petitioner therefore could not have been rejected without observing the rules of natural justice. In view of the breach of natural justice, the petitioner, in our judgment is entitled to the relief he has asked. It is of course open to the college authorities even now to verify the authority of the domicile certificate. The petitioner and | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-49 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | course open to the college authorities even now to verify the authority of the domicile certificate. The petitioner and his father will therefore appear before such college authorities as they are asked in writing to appear. If the authorities are satisfied about the domicile certificate after due enquiry, it is plain that the admission which has been given shall continue. It is understood that till such enquiry is concluded, the petitioner shall continue his studies in the college. | https://indiankanoon.org/doc/1457597/ |
864af7950f7a-50 | Harijander Singh vs Selection Committee, Kakatiya ... on 17 April, 1974 | 104. The writ petition is accordingly allowed, the impugned order quashed by the issue of a writ of certiorari and a direction as above is issued. In the circumstances of the case, however, we make no order as to costs. Advocate's fee Rs. 100/- | https://indiankanoon.org/doc/1457597/ |
e33f9695f36a-0 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | JUDGMENT Satyanarayana Raju, J.
(1) This is an appeal from the judgement ans decree of the Court of the Subordinate Judge, Anantapur, in Original Suit No. 58 of 1955.
(2) The facts material for appreciating the question debated before us are not in dispute. The plaint schedule proporties belonged to one Toomula Hanumappa, resident of Kottalapalli in the Anantapur District. His wife was Viyyamma. He had a son and a daughter. His son, Peddayya died shortly after his marriage. Hanumappa executed a will on 19th December, 1941. He died on 22nd July, 1942. His widow Viyyamma, died on 22nd February, 1954. Peddakka, the daughter of Hanumappa, who was married to the 1st defendant predeceased her mother on 8th July 1945. Defendants 1 and 2 arebrother and are the sister's sons of Hanumappa. Plaintiff is the son of another sister of Hanumappa. He instituted the suit on 17th November, 1955 for a declaration of his title to a 1/3rd share out of the properties comprised in the estate of Hanumappa and for partition and seperate posession of one such share. | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-1 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | (3) The genuineness of the will was not seriousl disputed by the plaintiff. It could not have been otherwise because the will was registered and the testator lived for seven months after its execution. It was, however, contented by the plaintiff that the will in question duly executed and also that the estate created by the testator in favour of his daughter was contingent on her surviving her mother, and that as the daughter predeceased her mother, there was a lapse and the estate should devolve on the reversioners as on intestacy. Both these contentions were negatived by the lower court, with the result that the suit was dismissed. Against the decision of the trail court, the plaintiff has preferred this appeal.
(4) Two questions arise for decision in this appeal: | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-2 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | 1. Whether the formalities required by law for the execution of a valid will were complied with?
2. Whether, on a true construction of the terms of the will, the testator conferred on his daughter an estate contingent on her surviving her mother?
(5) Under Sec. 63 of the Indian Succession Act, the first condition requisite to render valid any testamentary disposition is that such disposition should be'in writing' though no particular form is required. The next condition prescribed for the validity of a will is that it should be duly signed by the testator. The third statutory requisition is that it should be attested by at least two witnesses. | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-3 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | (6) The will, Ex. B. 3, was executed by Hanumappa on 19th December, 1941. After the usual preliminary and disposing of clauses, the will concluded with the name of the testator written by the scribe. The testator was admittedly illiterate. His thumb impression was not affixed at the foot of the document. Two witnesses, Chennareddi and Chinnapareddi, attested the will. The scribe of the document there after subscribed his signature. On the day of its execution, the will was presented by the testator in the Office of the Sub-Registrar Gooty. In token of his having admitted the execution of the will, the testator put his thumb impression before the Sub-Registrar. He was there identified by the two attesting witnesses, and the Sub-Registrar then admitted the document for registration.
(7) The evidence as to the execution of the will is that the testator held the pen and the scribe wrote his name at the foot of the document. The first and third conditions of a valid testament disposition have undoubtedly been satisfied in this case. It is, however, argued that the second condition prescribed for the validity of a will, viz., that it should be signed, has not been complied with by reason of the testator's mark not having been affixed at the foot of the document.
(8) According to S. 63 of the Indian Succession Act, the testator must sign or affix his mark to the will, or it must be signed by some other person in his presence and by his direction. The fruther requirement under this section is that "the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will." | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-4 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | (9) It is contended by the learned Avocate General, on behalf of the appellant, that the writing of the name of the testator by the scribe would not constitute due execution within the purview of Sec. 63 of the Succession Act. It support of this contention he relied upon the decision in Radhakrishna v. Subraya Mudaliar, ILR 40 Mad 550: (AIR 1917 Mad 900). In that case, with a view to execute a will the testatrix who was a marks woman touched the pen and gave it to another who affixed to the will a mark and wrote against it the name of the testatrix and added beneath it his own name as the person who affixed the mark. It was there held by the Division Bench, consisting of Wallis, C.J. and Phillips, J., that the will was invalid as not complying with the provisions of Sec., 50 of the Indian Succession Act (X of 1865) (which is in terms identical with S. 63 of the present Act), and that considered as a signed will, as it might be, it was equally invalid as the signature of the testatrix was put by another and there were not two other attestors be sides the one so signing. At page 556 (of ILR Mad): (at p. 901 of AIR), we find the following passage:
"If the signature, as distinct from the mark of the testatrix, is taken to have been affixed by Doraiswami Aiyanger in her presence and by her direction, the will fails for want of due attestation......." | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-5 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | The learned Judges were willing to hold that what was done might amount to a signature by some other person in her presence and by her direction within the meaning of the section, and if attested by two witnesses other than the signatory would be sufficient. On the language of Sec.50 it was held that the person who signed by the direction of the testatrix could not be one of the two attesting witnesses required by the section. The conclusion reached by the learned Judges in that case is no authority for the position that when some other person signs for the testator by writing out the testator's name in his presence and by his direction it would not amount to due execution within the purview of S. 63(a) of the Succession Act.
(10) In Dasureddi v. Venkatasubbammal, AIR 1934 Mad 436: ILR 57 Mad 979 the question for consideration was whether a will executed in the following circumstances could be deemed to be in conformity with Sec. 63 of the Succession Act. Rangamma an illiterate woman executed a will. It was in the handwriting of P.W. 2. The execution of the will, which also was in the handwriting of the scribe consisted of the words in Tamil, equivalent to the English, "this scratch: the mark of Rangammal". It was attested by four witnesses. After attestation, there was the customary memorandum by the scribe that it was in his handwriting. It was contended that the will was not validly executed by Rangammal even if was found to be genuine. The appeal was heard by Sundaram Chetty and Walsh, JJ. Who differed in their conclusion about the due execution of the will. | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-6 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | The point for difference between the learned Judges was this: Sundaram Chetty, J. was of opinion that when the execution of a will by a person other than the testator in his presence and by his direction took place, it was sufficient for that other to affix the signature of the testator himself. Walsh, J. thought that this was not the effect of S. 63 of the Succession Act, but a proper execution under the section required that the other person executing the will under the direction of the testator must sign in his own name with sufficient indication to show that he had executed it under the testator's direction. Pandalai, J. by whom the appeal was disposed of, consequent on the difference of opinion between the two learned Judges who heard the case in the first instance, agreed with Sundaram Chetty, J. in holding that when the execution of a will by a person other than the testator in his presence and by his direction takes place, it is sufficient for that other to affix the signature of the testator himself, and that the form of such signature is for the other person to sign the name of the testator and not his own.
(11) Under Sec. 3(56) of the General Clauses Act, the word 'sign' has been defined to mean a mark in the case of a person who is unable to write his name. On a true construction of the words 'it shall be signed by some other person in his presence and by his direction,' in Sec. 63(a) the proper form of such signature is, always has been recognized to be, for the other person to sign the name of the testator and not his own. In the above view, it must be held that the substantial requirements of law have been complied with and that the will has been properly executed. | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-7 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | (12) It is contended for the respondents that even supposing the requirements of Sec. 63 have not been complied with, yet the thumb-impression of the testator, which there is evidence to show was made from the deceased's thumb in the presence of the Sub-Registrar and the attesting witnesses who identified the testator, would constitute a proper execution. In Therasa v. Francis J. Misquita, AIR 1921 Bom 156 Fawcett, J. has, in fact, held that where an illiterate testator admits the execution of a will before a Sub-Registrar and affixes his thumb impression thereto, there is proper execution of the will apart from the question whether there was such proper execution before. On this ground also, it must be held that Ex.B. 3 was duly executed.
(13) The more substantial question is whether the bequest in favour of the testator's daughter the termination of the life estate should be deemed to bea vested interest or only a contingent interest. As the argument in the appeal turned largely on the precise language employed in the document, it is necessary to quote textually its terms: | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-8 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | "Now I am about 60 years old and I am in a sound disposing atate of mind. But as my legs and hands are shaking due to cough and asthama fron which I am now suffering, I have made the following arrangement with regard to my immovable and movable properties so that there may not be any objection by my heirs and others after my life time. I have a wife, son, daughter, by names Biyyamma, Peddiah and Peddakka respectively. I got my son married with a girl by name Naramma. About two years after the marriage, my son by name Pedaiah died. After the death of the said son of mine, I gave to my daughter-in-law, Ramanamma, all the Sthridhana properties that were given to her at the time of her marriage and (i) gave (also) a cash amount of Rs, 1,200/ (in words rupees twelve hundred) towards her life long maintenance also. I got also the marriage of my daughter Peddakka performed with Guraka Sunkireddi's son China Bayanna, resident of Peddavaduguru. Now my wife Bayamma and my daughter Peddakka are alive. After my life time, my wife Bayyamma should possession of the immovable properties belonging to me, that is, the lands which are in my possession and enjoyment and which are in the fields of the village of Dimnagudhi, Nagalapuram, Penakalapadu and Peddalvaduguru in this Taluk and the house and the hay-rick yard in Kattalapalli, the hamlet of Penkalapadu and the entire movable and immovable properties remaining after my life time and she shall enjoy all the said properties without alienating them in any manner. After her life time, my daughter Gurala Chinna Bayyanna's wife | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-9 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | any manner. After her life time, my daughter Gurala Chinna Bayyanna's wife Peddakka, shall enjoy (the said property) with (powers) of gift, sale etc. But neither my heirs nor others shall have any manner of right or interest. This will shall come into effect after my life time. I shall have the power to cancel this will whenever I please. To this effect is this will executed by me out of free will." | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-10 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | (14) For the appellant it is maintained that the testator contemplated the contingency of his daughter, Peddakka, surviving his wife. It is urged that the words "after her life time, my daughter..... Peddakka shall enjoy the said property with powers of gift, sale etc." are indicative of the intention of the testator that he comtemplated that his daughter should possess and enjoy the property after the death of her mother. It is on the other hand contended by the respondents that a life estate was bequeathed to the mother with an absolute gift over of the remainder to the daughter.
(15) The point for determination now is whether Peddakka got a vested or a contigent interest under the terms of the will.
(16) The distinction between vested and contingent interest is explained by a Division Bench of the Madras High Court in Shree Chand Sowcar v. Kasi Chetty, AIR 1933 Mad 885 thus:
"The ordinary distinction between vested and contingent interest consists in the nature of the event or condition upon which the done should take the property. If the interest created in favour of a person should take effect on the happening of an event which must happen, it is a vested interest, but if it is to take effect on the happening of a specified uncertain event which may or may not happen, the interest is a contingent one."
( 17) Now, Sec. 104 of the Succession Act provides that if a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator, and, if he died without having received it, it shall pass to the representatives. | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-11 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | (18) The following passage from Jatman on Wills, volume 2. eighth edition, page 1346 may be usefully extracted here: | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-12 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | "'The law', says Mr. Jarman, is said to favour the vesting of estates, the estates, the effect of which principle seems to be, that property which is the subject of any disposition, whether testamentary or otherwise, will belong to the object of gift immediately on the instrument taking effect, at the death of the testator, it follows that any deviseor bequest in favour of a person in essesimply (i.e. without any intimation of a desire to suspend or postpone its operation), confers an immediately vested interest.
"If words of futurity are introduced into gift, the question arises whether the expressions are inserted for the purpose of protracting the vesting, or point merely to the deferred possession or enjoyment."
At page 1347 occurs the following passage:
"Mr. Jarman continues: "It may be stated as a general rule that where a testator creates a particular estate, and then goes on to dispose of the ulterior interest, expressly in an event which will determine the prior estate, the Words descriptive of such event, occuring in the later device, will be constructed as referring merely to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postponethe vesting. Thus, where a testator devises lands of A for life, and after his decease to B in fee, there spective estates of A and B (between whom the entire fee simple is parcelled out) are both vested at the instant of the death of the testtor, the only difference between the devisees being, that the estate of the one is in possession, and that of the other is in remainder."
(19) This rule is embodied in Sec. 119 of the Succession Act, which reads: | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-13 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | "Where by the terms of a bequest the legatee is not entitled immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representative if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest.
(20) The words of futurity in the present case are to be found in the penultimate clause of the will. They are: | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-14 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | "After the life-time of my wife, my daughter, Peddakka shall enjoy the property." | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-15 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | The words "after the death of my wife" are to be construed as merely referring to the period of the determination of the life-interest of his wife. There are no other terms in the will showing an intention on the part of the testator postponing the vesting till after the death of the widow. The words "after the death of my wife" received a similar construction by a Division Bench of the Calcutta High COurt in Sissir Chandra v. Ajit Kishore,AIR 1938 Cal 466.
(21) The decision of a Division Bench of the Madras High COurt consisting of Coutts-Trotter, C. J. and Srinivase Aiyangar, J. in Ernest William Adams v. Mrs. H. S.F. Gray, 48 Mad LJ 707: (AIR 1925 Mad 599) is also in point. The learned Judge observed at page 713 (of Mad LJ): (at p. 602 of AIR) as follows: | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-16 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | "It is perfectly clear from all the text-books and the decided cases that if a bequest is to a person for llife and after his death to his children, the bequest becomes vested in each child as and when he or she is born and the vesting is not postponed till the death of the life tenant. The expression 'after his death' is taken to indicate merely the time when the gift over becomes reduced to possession and not the time when the reight to such possession and not the time when the right to such possession vest...... The priniciple underlying this rule is that no contingency is imported by the mere fact that the legacy is given after a life-estate in the property bequeathed. As nothing is more certain than that every person who lives must due, the death of a life tenant is an event not contingent but certain; and therefore a gift on the death of a life-tenant is a bequest to take effect not on a contingency but on an event certain to happen..."
(22) In Bhagabati Baramanya v. KalicharanaSingh, ILR, 38, Cal 468 (PC) the testor by his will gave life-estates to his mother and wife and provided that on their death, his sister's sons G. and A, "this is to say their (sister's) sons who are now in existence as also those as may be born hereafter shall in equal shares hold the said property in possession and enjoyment by right of inheritance". Their Lordships of the Privy Council held that the nephews were intended to take a vested and transmissible interest on the death of the testator though their possession and enjoyment were postponed. | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-17 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | (23) In Bilaso v. Munnilal, ILR 33 All 558 the testator gave all his property after the death of himself and his wife daughter and nephew. The nephew survived the testator but predeceased his wife. It was held that the nephew took a vested interest in the property on the death of the testator although possession and enjoyment were postponed till the death of the testator's wife and that vested interest so taken by the nephew was transimissible to his sons.
(24) In Rewan Prasad v. Mt. Radha Beeby, 4 Moo Ind App 137 (PC) the testator, by his will, gave his widow a life estate in all his property, and after her death he gave a moiety to his two sons. The brother and one of the sons died during the life time of the widow. The widow of the deceased son claimed her husband's share. On these facts, their Lordships of the Privy Council held that the sons took vested interest in the moiety bequeathed to them a tenants-in-common the actual enjoyment of the expectant interest being postponed till the termination of the life estate, and that in such circumstances it was not necessary that the deceased son's share should be reduced into possession during his life time to enable his widow to succeed to it.
(25) It is contended by the learned Advocate General that no gift was expressed in favour of the daughter until the death of the widow and no right vested in her unless she survived that period. In support of this contention reliance was placed on the decision of the Privy Council in Chota Raja Saheb Mohitai v. S. Sundaram Ayyar, AIR 1936 PC 131. There the material portion of the grant ran as follows: | https://indiankanoon.org/doc/954396/ |
e33f9695f36a-18 | Chilamakuri Chinna Pullappa vs Guruka Chinna Bayanna And Ors. on 14 December, 1960 | "On the death of the last surviving widow the daughter of the late Raja, or, failing her the next heirs of the late Raju, if any, will inherit the property."
Their Lordships of the Privy Council held that no gift was expressed in favour of the daughter until the death of the last survived widow, and no right vested in her until she survived that period. It was held that the words "or failing her" meant failing her survivance at the death of the last surviving widow. The decision in that case turned upon the words "failing her the next heirs of the late Raja"' which were considered to mean as containing a clear indication on the part of the testator that the daughter should inherit the property only in the event of her surviving the widow. We do not think that his decision is helpful in construing the will in the present case.
(26) On the construction of the terms of the will, Ex. B.3, we feel no difficulty in holding that Peddakka, the daughter, had a vested interest. There are no words of defeasance. It may be that the traditional words of a conveying counsel that a life estate should be followed by an absolute estate could have been employed; but if the testator was contemplating a defeasance, it is reasonable to assume that he would have provided for the contingency of the daughter not surviving his widow. There cannot be a vacuum where there is a life-estate followed by an absolute estate because the residue must rest some where. In the utimately analysis, this is a case of deferred possession, not deferred vesting. We, therefore, hold that Peddakka had a vested interest in the suit property, and the conclusion reached by the Court below is correct.
(27) For the above reasons, the appeal fails and is dismissed with costs.
(28) Appeal dismissed. | https://indiankanoon.org/doc/954396/ |
faa83b2ed0e4-0 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | JUDGMENT Subba Rao, C.J.
(1) The Income-tax Appellate Tribunal, Madras Bench "B" referred the following questions under S. 66 (1), Indian Income-tax Act to the High Court of Judicature, Madras
(i) "Whether there was definite information in the possession of the Income-tax Officer in consequence of which he could have discovered that there was an under-assessment within the meaning of Section 34 as it stood before its amendment in 1948?
(ii) Whether the re-assessment of Rs.11,185/- is a vliad."
The said reference was tranferred to this Court afterits constitution.
(2) The facts that gave rise to the reference may be breiefly stated. M. M. A. K. Mohiddin Thumby and Co., was a firm having four tanneries at Eluru and one at Guntur. Its head office was situated at Eluru. The following were the six partners of the firm:
1. M. M. Mohamed Mama Labbai,
2. M. K. A. S. Syed Mohammad.
3. Vavoo Mohammad Hasana Labbai.
4. O. M. Ahmed Mohideen Sadaktulla.
5. Velak Mohammed Shekna Labbai. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-1 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | 5. Velak Mohammed Shekna Labbai.
6. Velak Mohammad Mohideen.
Though they were carrying on business at Eluru, they were permanent resident of Kayapatnam village in Tinnevelly District. For the assessment year 1940-41 the assessee filed a return showing a total income of Rs.21,420/- durin tghe scrutiny of the accounts, the Income-tax Officer came across a transfer of Rs.1,15,000/- from the account of V. Syed Moahmed Ali of Calcutta to the accounts of the following four partners of the assessee firm:
1. M. M. Mohammad Mama Labbai Rs. 25,000/-
2. A. K. Mohamed Omar Sahib Rs. 30,000/-
3. V. M. K. Dawood Labbai Rs. 30,000/-
4. N. K. A. S. Syed Mohammad Rs. 30,000/- | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-2 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | Though the Income-tax Officer suspected that the said amount represented the secret profits of the fir, he was not able to get any definite information to hold that the said sum also was part of the profits of the firm. Ignoring that item, he made an order of assessment dated 17-3-1941. On 31-3-1941, the said amount was spread over the accounts of the fourteen partners. The explanation of the assessee was that in October 1939, 14 persons contributed amounts totalling Rs.1,15,000/- with the view of constituting a partnership, that the said amounts were remitted to Syed Mohamed Ali of Calcutta as the money was urgently required for purchasing skins for the partnership and that the money was subsequently adjusted on 31-3-1941 by transferring the same to the capital account of the four partners and thereafter to that of the 14 parners.
In addition to the enquiries started by the Income-tax Officer before 17-3-1941, he addressed the Income-tax Officer, Tuticorin, to make an enquiry in respect of the financial position of the said four partners. On 17-2-1942, he sent a report that none of the partners had any private interest of his own apart from his interest in the business of the assessee. On receiving the said information, the Income-tax Officer issued a notice under S. 34, Indian Income-tax Act for the purpose dof re-opening the assessment. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-3 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | After following the procedure prescribed, he re-opened the assessment and found that the aforesaid amount of Rs.1,15,000/- transferred from Syed Mohammed Ali's account to the credit of the four partners really represented the profits of the firm. The was satisfied that the financial position of the said four partners was not such as to enable them to advance such a large amount towards capital. On that basis, he assessed the company to tax.
(3) The Assessee filed an appeal to the Apellate. Assistant Commissioner of Income-tax, Nezwada, but he accepted the view of the Incoem-tax Officer and confirmed and assessment. when an appeal was filed to the Tribunal, that was dimsised. Thereafter the present reference was made at the instance of the assessee.
(4) Learned counsel for the assessee contended that under s. 34, Indian Income-tax Act, the Income-tax Officer has jurisdiction only to re-open an assessment already made if he discovers that any income has escaped assessment in consequence of definite information which has come into his possession and that in the present case the income-tax Officer did not re-open the assessment on my such basis but only because he changed his opinion on the facts, which were within his knowledge at the time the first assessment was made. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-4 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | Section 34 reads:
"If in consequence of definite information which has come into his possession the Income-tax Officer discovers that income profits or gains chargeable to income-tax have escaped assessment in any year ............................. the Income-tax Officer may in any case which he has rreason tobelieve that the assessment has concealed the particulars ................................ serve on the person liable to pay tax on such income. profits............................ and may proceed to assess or re-assess such incoem profits and gainst and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section".
The necessary conditions for the application of the section are;
(i) Subsequent to the assessment, the Income-tax Officer comes into possession of information,
(ii) that information must be definite and
(iii) by reason of that information, he discovers that the income has escaped assessment.
The scope of these three conditions has been the subject of judicial scrunity. It will be convenient at this stage to consider those decisions to ascertain the settled law on the subject.
(5) In -- 'FAzal Fhala v. Commr. of Income-tax. B. and O.', AIR 1944 pat 338 (A), the assessee was assessed for the year 1937-38 on 4-9-1937 but proceedings under Section 34 were started on 7-5-1938 on the ground that the income of the Madras Branch of the assessee had escaped assessment. In that case, the Income-tax Officer had in mind the existence of the Madras Branch of the business when the assessment was completed on 30-8-1938. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-5 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | He did dnot come into possession of any new definite information subsequently which enabled him to reopen the assessment already made. As the conditions laid down in Section 34 had not been complied with, the learned Judges held that the assessment was invalid.
(6) In -- 'Badar Shoe Stores, Agra v. commr. of Income-tax, C P. and U. P. Lucknow', AIR 1949 All 164 (B), the assessee a dealer in shoes returned gross profits varying between 5 and 5.6 per cent. of the gross turnover for the four years including the accounting year 1930-40. As the return for the accounting year 1939-40 aroused the suspicion of the Income-tax Officer, he examined the accounts of that year in detail and foiund that an item on the debit side of the accounts had been inflated by a sum of Rs.5,000. His suspicion was also around in respect of the balance brought forward in 1939-40 accounts from previous years. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-6 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | When the assessee was asked to produce accounts for the accounting years ending 31-3-1937, 31-3-1938 and 31-3-1939, he replied that they were sold away as waste paper. The Income-tax Officer thereafter issued a notice under Section 34. The learned Judges held that the Income-tax Officer had definite infromation in consequence of which he discovered that the assessee's income of 1938-39 had escaped assessment in the assessment year 1939-40. The learned Judges, at page 168, defined the crucial words as follows:
"Our conclusion from a consideration of these authroities is that, so far as the word 'discovers' in the amended Section 34 is concerned , it requires that the Income-tax Officer should have formed an honest and reasonable behlief upon materials which could reasonably support such belief. In the nature of things, it cannot amount to a conclusion of certainly .......................................;
These present less difficulty, but it has to be remembered that both what is a 'discovery' and what is 'derfinite information' must necessarily vary with the circumstances of the case. We think that the words 'definite inforamtion' are placed in Section 34, Indian Income-tax Act to protect the subject against an assasult by the Income-tax Officer based upon mere suspicion. The definite information which is something more than mere gossip or rumous must lead to the discovery or belief as we have described it above.
But we are not prepared to engage ourselves to the view that, provided the information is is definite and does lead to that belief, it need necessarily be information of fact, though in ninety-nine cases out of a hundred it would investably be information of fact". | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-7 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | (7) In -- 'Kedar Nath v. Commr. of Income-tax, U. P. and C. P. and Berar, Lucknow', AIR 1947 All 153 (C), the assessee a practising Barrister was assessed for the assessment year 1940-41 by the Income-tax Officer on 28-1-1941 and, in the course of that assessment, it transpired that the assessee had purcahsed and sold shares in companies and suffered losses in the course of those transactions. But the Income-tax Officer did not allow any deductions on that account. Subsequently, on 12-12-1942, a new Officer started proceedings under Section 34 in respect of the year 1940-41 and enhanced the assessment. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-8 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | He made the assessment in respect of the profits said to have been earned by the assessee in what was foiund to be a business in the purcahse and sale of shares. Thelearned Judges held that the officer did not receive any new and definite information and that the assessment, having been based only on a change of opinion based on the same facts, was invalid. At page 155, the learned Judge observed:
"It still remains a fact that there is not an iota of material in this record to show that the Income-tax Officer re-opened, the matter in consequence of any iformation he had received, definite or otherwise, prior to the re-investigation ........... the Second Income-tax Officer was dissatisfied with the view taken by the first and therefore decided to re-open the matter".
(8) In -- 'Gaya, Ram Gabbu Lal v. Commissioner of Income-tax', (D), the Income-tax Officer gave notice under Section 34 of the Act for re-opening the assessment for the year 1940-41. When he found fictitious depsoits during the course of the assessment for the year 1941-42, he made enquiries and found that the rates of purchase shown in the books of account of the assessee and supported by memoranda for the assessment year 1940-41 were much higher than the rate shown in the books of other dealrers and that the assessee had a large sum of money which he showed in the accounts of the next year as deposits in the names of certain persons which entries were wrong. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-9 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | On the basis of this new information, he issued a notice under Section 34. The learned Judges held that he had jurisdiction to do so. The reasons for so holding are found at page 326, in the following terms :
"Before notice can be issued, the Income-tax Officer must be satisfied and the satisfaction must be that of a reasonable man i.e., the definite information in his possession should lead to the conclusion that income has escaped assessment".
(9) In -- 'Haji Ahmad Haji Esak and Co. v. Commissioner of Income-tax', (E), it was contended that the books of account were present before the first officer and all the facts, which were elicited from those books, could have been elicited by the first officer, and, therefore, no fresh information came into the possession of the officer who decided to act under S. 34 of the Act. Chagla, C.J., and Tendolkar, J., observed at page 301 :
"Does Section 34 or S. 15 contemplate that it information could have come into the possession of the officer by due diligence, then although in fact he had no knowledge of that information for the purposes of these two sections, it must be deemed that he had the information and he could not act one that information although in fact he came to know of it subsequently. In our opinion, the section does not and cannot bear that interpretation. 'Information' meanse something that the mind had acqired.
The mere fact of the presence of a book before a person does not give him the information or the contents of that book unless he opens the book and reads it. According to Sir Jamshedji, the mere fact that a book was placed before an officer is sufficient to give him information of its contents. That may be constructive notice of the contents, but Section 15 does not deal with contructive notice. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-10 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | Section 15 deals with actual notice andin order that an officer should be incapacitated from acting under Section 34 or S. 15, he must have actual knowledge of certain facts which knowledge he is again using for the purpose of acting under these sections. If actual knowledge was about -- it is immaterial how that actual knowledge was absent -- then when the actual knowledge does come about it confers jurisdiction upon the officer to act under those two sections".
These observations, therefore, support the view that the mere fact that an Income-tax Officer before the assessment could have discovered the facts which he came to know at a subsequent stage, if he acted with diligence even before the assessment, could not in law preclude him from acting under Section 34, if as a matter of fact, he received definite information subsequently.
(10) In -- 'Jitan Ram Nirmal Ram v. Commissioner of Income-tax', (F), learned Judges held that the phrase 'definite information in Section 34 cannot be construed in an universal sense and its meaning must depend and must necessarily vary with the circumstances of each case. But they made it clear that it is necessary that the information should be more than mere gossip or rumour.
(11) In -- 'Commissioner of Income-tax, Madras v. Janab S. Kaderwalli Sahib', (G), the Madras High Court held that a mere change of opinion based on the same facts and figures, which were present to the mind of the Income-tax Officer at the time of the original assessment, does not amount to 'discovery' within the meaning of Section 34, Indian Income-tax Act, 1922. There the assessee was a partner in a registered firm consisting of three individuals. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-11 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | During the course of assessment proceedings, the Income-tax Officer made enquiries as regards the acquisition of house property by the assessee during the year of account and he came to the conclusion that a sum of Rs. 16,000/- invested by the assessee on the purchase of house property came from his share of the profits of the partnership of which he was a member. On that basis, he added that sum to the income of the firm and the profits of the partnership were assessed on an estimate.
Against the assessment of the firm, an appeal was filed and the Assisstant Appellate Commissioner held that the inclusion of Rs. 16,000/- in the firm's income was not justified. Thereafter the Income-tax Officer purported to take proceedings under Section 34, Indian Income-tax Act and added the sum of Rs. 16,000/- to the income of the assessee and assessed hin afresh. The learned Judges held that the assessment was invalid. At page 994, they observed :
'It is clear that a mere change of opinion based on the same facts and figures which were present to the mind of the Income-tax Officer at the time of the original assessment does not amount to discovery. The must be the result of definite information, that is to say, new information that has come to the knowledge of the Income-tax Officer. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-12 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | The Income-tax Officer cannot act under this section even though the tax-payer has escaped assessment if he is acting on information which was already in his possession and within his knowledge".
(12) In -- 'Debi Prasad Malviya v. Commissioner of Income-tax', (H), the Income-tax Officer, though he knew that the assessee had a one-third share in a partnership firm and the profits from that firm had to be included in his total income, finished the assessment and observed in the assessment order that as the assessment of the firm had not been completed, necessary action for revising the assessment by inclusion of the assessee's share of profit in the firm would be taken later on the receipt of the report from the Income-tax Officer assessing the firm.
Subsequently the Income-tax Officer issued notice under Section 34 for including in the assessment the share of profits of the assessee from the firm. The learned Judges held that the notice under S. 34 was wrong and the Income-tax Officer had no authority to re-open the assessment already made by him. At pages 227-228, the learned Judges give their reasons for so holding as follows :
"As regards the question referred to us under Section 66 (1) we find that the facts on the basis of which notice under Section 34 was issued were all know to the Income-tax Officer concerned except of course the actual amount of profits that had been made by the Kanpur Iron Supply and Co., in the two years in question ............... the Income-tax Officer knew that the assessee had a one-third share in the partnership firm Kanpur Iron Supply Co., and that the profits of that concern had to be added to the total income of the assessee .................... Section 23, Indian Income-tax Act contemplates that the Income-tax Officer should make and complete assessment on the basis of the total income of an assessee. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-13 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | It is not open to him to make assessments piecemeal and in case where the Income-tax Officer has proceeded to assess one part of the income and has decided to asses the rest of the income on a later date, he cannot rely on the provisions of Section 34 for the purpose of re-opening the assessment ............. It cannot, therefore, be said that the fact was discovered later that the assessee laid been under-assessed.
(13) From the aforesaid discussion of the caselaw, the law on the subject may be summarised thus. Section 34 was enacted both in the interests of the State and the subject. If it is necessary to prevent evasion of tax, it is equally important to protect a citizen from undue harassment by over-zealous officers. The Act does not contemplate peicemel assessment and ordinarily it is expected of an Income-tax Officer to complete his assessment for a particular year once and for all. He cannot resort to the method of piecemeal and compartmental assessment. But, at the same time. to detect evasion and to assess the escaped income, the section confers on an officer power conditioned by the provisions of the section itself.
Unless he gets definite information i.e, clear and unambiguous information not based on gossip, rumour or surmises, which in its turn leads him to arrive at a reasonable belief that the income escaped assessment etc., he had no power to start an enquiry under Section 34. No doubt, the word 'discover' cannot in the context mean arriving at a final decision but it can be interpreted to mean only a reasonable belief on the part of the Income-tax Officer that the income had escaped assessment. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-14 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | There is also an essential distinction between discovery based upon a new fact brought to the notice of the Income-tax Officer and a change of opinion arrived at by him on the facts that existed prior to the assessment for, in the latter case, he does not receive any new information. All the facts were already within his knowledge.
(14) Applying the said principles, can it be said that in this case that the Income-tax Officer received definite information on the basis of which he came to a reasonable belief that the income of the assesse escaped assessment ? From the statement of facts, it is clear that even before the first assessment, the Income-tax Officer had not only a doubt, but even a shrewd suspicion that some fraud was committed in respect of the item of Rs. 1,15,000/-. Though he made enquiries he did not get any definite information before the closing of the assessment to induce him to come to any reasonable belief that the said item represented the profits of the firm.
On receipt of the definite information from the Income-tax Officer, Tuticorin Circle to the effect that the said four partners had no income other than that which they got from the firm assessed and that they did not sell any properties of their own to advance large amounts towards the capital of the partnership, the lingering doubt in his mind was crystallised into a reasonable belief that the said sum represented the profits of the firm. The Income-tax Officer did not change his opinion on the facts, which were already before him at the time of first assessment. The fact that the partners had no other resources for advancing large amounts towards the capital of the business was not before him. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-15 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | It was communicated to him only subsequent to the assessment and that fact really and naterially turned the scales against the assessee. We would, therefore, hold that 'discovery' within the meaning of the section was made by the Income-tax Officer on the receipt of definite information from the Income-tax Officer. Tuticorin Circles, and therefore, the action taken by the Income-tax Officer under S. 34 the Act was right.
(15) It was then contended that the information given by the Income-tax Officer was not of a fact but only based on his surmises. The report clearly shows that he made the enquiries and the enquiries convinced him that the partners had no other source yielding the required amount for making a deposit, towards the capital of the business. We cannot, therefore, say that the communications made by the Income-tax Officer, Tuticorin was not 'definite information" within the meaning of the section.
(16) Learned counsel then contended that the re-assessment under Section 34 was based upon pur surmises, ignoring the definite and direct evidence adduced by the assessee. This is not one of the questions referred to us. Further the question raised is one of fact. The Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal considered the entire material and came to the conclusion that the said item represented the profit of the firm and was therefore liable to assessment. We cannot in this reference question a finding of fact arrived at by them. | https://indiankanoon.org/doc/909761/ |
faa83b2ed0e4-16 | M.M.A.K. Mohiddin Thamby And Co., ... vs Commissioner Of Income-Tax, ... on 15 April, 1955 | (17) No contention has been raised before us that when the assessment was re-opened, the Income-tax Officer had no jurisdiction to find out the other items that escaped assessment at the earlier stage. The Income-tax Officer added Rs. 11,185/- to the assessable income on account of undervaluation of stock discovered by him. The Assisstant Commissioner and the Tribunal agreed with him.
When once it is not disputed that the Income-tax Officer has jurisdiction to reopen the other items. we cannot go into the correctness of the figures arrived at by the Tribunal. We accordingly answer the question referred to us. The applicant will pay the consts of the respondent which we fix at Rs. 200/-.
(18) Answer accordingly. | https://indiankanoon.org/doc/909761/ |
57b2a9f6bb38-0 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | JUDGMENT Ramanujulu Naidu, J.
1. In this Writ Petition the legality of levy of exercise duty in a sum of Rs. 22,55,795.76 on the cost of jute bags in which excisable commodity of cement manufactured by the petitioner-company, hereinafter referred to as the Company, was packed and sold between 1-10-1975 and 8-1-1976 is questioned and refund of the amount of excise duty paid by the Company under protest prior to or at the time of the removal of the commodity is prayed for.
2. In W.P. No. 1532 of 1976 filed by the K.C.P. Limited, engaged in manufacture of cement at Macherla, Guntur District, an identical question was raised and answered in favour of the assessee therein by a Division Bench of this Court consisting or one of us and Sri Kondaiah, the former Chief Justice. The said Writ Petition was disposed of along with a batch of Writ Petitions filed by some other assessees in which the scope of Section 4 of the Central Excise and Salt Act, 1944 as amended by the Central Excise and Salt (Amendment) Act, 1973 which came into force on 1-10-1975, was canvassed. The decision of the Division Bench was reported in Indo-National Limited, Nellore-4 and others vs. Union of India and others, 1979 ELT 334 (AP). In paragraph 63 of the judgment, which disposing of the batch of Writ Petitions, the Division Bench observed : | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-1 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "........the only question raised by the petitioner-company is the legality of levy of excise duty on the cost of jute bags in which the excisable goods manufactured by the Company were packed and sold between 1-10-1975 to 8-1-1976. Admittedly, even after the amended Section 4 came into force, till 4-12-1975, the excise authorities did not include the cost of jute bags in the assessable value. However, from 5-12-1975 to 9-1-1976, the excise authorities made a demand in a sum of Rs. 2,08,791.05 towards excise duty on the cost of jute bags. The petitioner objected to the demand, but, however, paid the amount under protest. For the earlier period between 1-10-1975 and 4-12-1975, a demand was subsequently made by the 3rd respondent in a sum of Rs. 3,85,835.46 towards excise duty on the cost of jute bags on the ground that by mistake the sum was not collected earlier. For the reasons assigned by us, while dealing with the claim of exclusion of the cost of packing in Writ Petition No. 5948 of 1975, we hold that the cost of jute bags in which the goods of the company were packed and sold is not liable to be included in the assessable value of the goods. We may also observe that, realising the mistake committed by the excise authorities, the Government of India also issued the notification dated 9-1-1976 exempting payment of excise duty on the cost of jute bags in which cement is packed and sold by the manufacturers of cement. The petitioner-company is, therefore, entitled to refund of the amount of excise duty on the cost of jute bags levied and collected between | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-2 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | refund of the amount of excise duty on the cost of jute bags levied and collected between 5-12-1975 and 8-1-1976. The demand dt. 31-3-1976 made upon the petitioner for payment of excise duty in a sum of Rs. 3,85,835.46 on the cost of jute bags for the period from 1-10-1975 to 4-12-1975 is, therefore, liable to be quashed." | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-3 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | Following the decision of the Division Bench, we quash the order dated 11-8-1978 passed by the 3rd respondent confirming the levy of excise duty, in a sum of Rs. 22,55,795.76 on the cost of jute bags in which the excisable duty of cement manufactured by the Company was packed and sold between 1-10-1975 and 8-1-1976.
3. Sri K. Srinivasamurthy, learned counsel for the Company submits that the Company is entitled to the consequential relief of refund of the amount of excise duty paid under protest. Sri K. Subrahmanya Reddy, learned counsel appearing for the respondents strenuously contends that the entire amount of excise duty levied and collected from the Company was passed on by the Company to its consumers and that any refund of the amount of excise duty to the Company, if ordered, would amount to unjust enrichment of the Company. The plea put forward on behalf of the Union of India and founded upon the doctrine of unjust enrichment was not advanced in the batch of writ petitions disposed of by the Division Bench referred to supra.
4. Before we advert to the decisions cited in support of the rival contentions advanced before us we may extract Rule 11 of the Central Excise Rules, 1944 providing for refund of duties or charges erroneously paid. It runs thus : | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-4 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "11. No refund of duties or charges erroneously paid, unless claimed within three months. - No duties or charges which have been maintained with the Collector under Rule 9, and of which repayment wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be refunded (unless the claimant makes an application for such refund under his signature and lodges it with the proper officer) within three months from the date of such payment or adjustment, as the case may be."
The above rule was omitted by the Central Excise (Fifteenth Amendment) Rules, 1980 by reason of insertion of Section 11-B in the Act by Finance (No. 2) Act, 1980 which runs thus :
"11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date :
Provided that the limitation of six months shall not apply where any duty has been paid under protest.
(2) If on receipt of any such application the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant should be refunded to him, he may make an order accordingly.
(3) Where as a result of any order passed in appeal or revision under this Act refund of any of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf.
(4) Save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-5 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | (5) Notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no Court shall have any jurisdiction in respect of such claim.
............................................."
5. In Sales Tax Officer vs. Kanhiya Lal - it was held by their Lordships of the Supreme Court :
".........if it is once established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law the party is entitled to recover the same and the party receiving the same is bound to repay or return it. No distinction can, therefore, be made in respect of a tax liability and any other liability on a plain reading of the terms of S. 72 of the Indian Contract Act.
.............................................
To hold that tax paid by mistake of law cannot be recovered under S. 72 will be not to interpret the law but to make a law by adding some such words as "otherwise than by way of taxes" after the word "paid".
Their Lordships also added that merely because the State had not retained the monies paid as Sales Tax by the Assessee, but had spent them away in the ordinary course of business of the State would not make any difference to the position and under the plain terms of Section 72 of the Contract Act, the assessee would be entitled to recover back the money paid by him to the State under mistake of law and that equitable consideration could scarcely be imported when there was a clear and unambiguous provision of law which entitled the assessee to the relief claimed by him. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-6 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 6. In Patel India vs. Union of India - excess levy of duty levied by the Customs authorities under the Sea Customs Act on some of the goods imported by the appellant-company therein on the ground that the invoice price was not the real value of the imported goods was held to be without authority of law. The Union of India refused to refund to the appellant-company therein the amount of excess duty paid on the ground that no such claim was made within three months from the date of payment. Reliance was placed upon Section 40 of the Sea Customs Act, which is in pari materia with Rule 11 of the Central Excise Rules, 1944. Adverting to the said plea, their Lordships of the Supreme Court observed :
"Section 40 on which the Union of India relied in its return, provides that no customs duties or charges which have been paid, and of which repayment wholly or in part, is claimed in consequence of the same having been paid through inadvertance, error or misconstruction, shall be returned, unless such claim is made within three months from the date of such payment. The section clearly applies only to cases where duties have been paid through inadvertence, error or misconstruction and where refund application has to be made within three months from the date of such payment. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-7 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | As rightly observed by the High Court, the present case was not one where the excess duty was paid through any of the three reasons set out in S. 40. The excess duty was demanded on the ground that the invoice price was not the real value of the imported goods and payment under protest was also made on that footing. The ultimate result in the appellant-company's revision was that charging of excess duty was not warranted under the Act, and that the value on which duty should have been assessed was the invoice price and nothing else. That being the petition, Section 40 did not apply and could not have been relied upon by the customs authorities for refusing to refund the excess duty unlawfully levied on the appellant-company.
From the fact that the customs authorities refunded the excess duty on items 22 to 29 and 33-35, it follows that the customs authorities had fully realised that the excess duty had been levied without the authority of law, for otherwise they would not have agreed to refund it, and further that they could not lawfully retain it. If the customs authorities were not entitled to levy the excess duty and retain it, they were bound to return it to the appellant-company who had paid it under protest and only with a view not to incur demurrage charges, unless there was some provision of the Act which debarred the appellant-company from recovering it. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-8 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | The only provision relied on by the Customs authorities was Section 40 of the Act. Indeed, their refusal to refund the excess-duty both in their return and in the High Court was on the ground of the omission of the appellant-company to apply for the refund within the time provided by that section. It is necessary to emphasis that it was not their case that the invoice price of the items in question was not the real value or that the excess duty was lawfully levied or that the appellant-company was not entitled to the refund thereof for any reason except the omission to apply for it within the time prescribed by S. 40. But since Section 40 did not apply to the facts of the case, the respondents could not retain the excess duty except upon the authority of some other provision of law. No other provision was pointed out by them which would disentitle the appellant-company to the refund on the ground of its right being time-barred or otherwise. No such provision other than Section 40 which disentitled the appellant-company to the refund having been put forward and the customs authorities not being entitled to retain the excess duty, there was a legal obligation on the part of the respondents to return the excess duty and a corresponding legal right in the appellant-company to recover it. Besides except S. 40, the Act contains no other provision laying down any limitation within which an importer has to apply for refund. The refusal to return the excess duty on the ground that the appellant-company had not applied within time provided by the Act was clearly unsustainable. Since there was not and could not be any dispute with regard to the invoice price being the real value there was no point in filing any appeal; nor could the omission to file any appeal be a proper or valid ground for refusing relief to the appellant-company, when there remained no longer any dispute between the parties as to the invoice price being the real value of the imported items. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-9 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 7. In State of Madhya Pradesh vs. Bhailal Bhai - Sales Tax assessed and paid by the dealers in the State of Madhya Bharat was declared by the High Court of Madhya Bharat to be invalid in law. In some cases refund of the amount of sales tax paid was also ordered. Questioning the decision of the High Court of the State of Madhya Bharat, the State of Madhya Pradesh preferred appeals to the Supreme Court. Their Lordships of the Supreme Court held that the payment of tax was one made under a mistake within the meaning of section 72 of the Contract Act and so the Government to whom the payment was made by mistake was bound to repay it and that the High Court had, in exercise of its jurisdiction under Art. 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law. Their Lordships, however, added : | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-10 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made a clear more than once that the power to give relief under Art. 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, whereas, in these cases, a person comes to the court for relief under Art. 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 under a void provision of law, and the payment was made by mistake, is still not bound to exercise its descretion 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. I may however state as a general rule that if there has been unreasonable delay the court ought 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 | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-11 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 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 Art. 226 of the Constitution. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-12 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | .............It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known."
8. In State of Kerala vs. Aluminium Industries Limited - 16 STC 689 a Bench of seven judges of the Supreme Court while affirming the view laid down in State of Madhya Pradesh vs. Bhailal Bhai (Supra) added :
........Where tax is levied by mistake of law it is ordinarily the duty of the State subject to any provision in the law relating to sales tax (and no such provision has been brought to our notice) to refund the tax. If refund is not made, remedy through court is open subject to the same restrictions and also the period of Limitation (See Art. 6 of the Limitation Act, 1908). Namely, three years from the date when the mistake becomes known to the person who has made the payment by mistake (See State of Madhya Pradesh vs. Bhailal Bhai : ). In this view of the matter it was the duty of the State to investigate the facts when the mistake was brought to its notice and to make a refund of mistake was proved and the claim was made within the period of Limitation." | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-13 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 9. In Suganmal vs. State of Madhya Pradesh - 16 STC 389 their Lordships of the Supreme Court reaffirmed the view taken in State of M.P. vs. Bhailal Bhai (supra). | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-14 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | In the said case, the appellant, therein was the Managing Proprietor of Bhandari Iron and Steel Co., which had its foundry at Shilnath Camp, Indore, where it carried on the business of mechanical engineers, iron, brass and malleable iron founders and re-rollers in steel. There was in force in the Indore State, the Indore Industrial Tax Act, 1927, for the imposition of industrial tax on cotton mills. Excess profits duty was payable under the Indore Excess Profits Duty Order, 1944. The company did not run any cotton mill. Still, when the company was called upon to submit its returns and to deposit industrial tax whenever its balance-sheet showed profits, it did so. In all, the company paid a sum of Rs. 18,234.52 in 1944 in advance on account of industrial tax prior to the tax being provisionally assessed by the Assessing Officer. The provisional assessment for the years 1941-43 was made in 1945 and for the years 1945-46 in 1946. The tax was assessed at Rs. 62,809.52. Deducting the amount of Rs. 18,234-5-2 deposited in advance in 1944 an amount of Rs. 44,575 was deposited by the appellant on or before June 9, 1948. The tax for different years was finally assessed in 1951 and 1952. The appellant filed appeals against the various assessment orders to the appellate authority. The appeals were decided in June 1955. The appeals against the assessment of industrial tax were allowed on the ground that the company was not liable to pay industrial tax as it did not carry on any business which was liable to be assessed to that tax and the various assessment orders under appeals were quashed. No direction was, however, given by the appellate authority for the refund of tax which had | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-15 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | No direction was, however, given by the appellate authority for the refund of tax which had been realised from the company. Thereafter the company approached the various officers of the State Government of Madhya Bharat for the refund of tax amounting to Rs. 2,37,770-14-2 after appropriating Rs. 37,951-7-0 to excess profits duty from Rs. 1,75,722-5-2 paid by the company towards the tax and excess profits duty. The Government adjusted the amount due for excess profits duty as requested by the company and refunded Rs. 74,961-9-0 paid subsequent to January 26, 1950 when the Constitution came into force. It, however, refused to admit the claim for refund of the amount of Rs. 62,809-5-2 which had been realised from the company prior to that date and, therefore, refused to refund that amount, the company thereupon filed a writ petition praying for the issue of a writ of mandamus against the State of Madhya Bharat and the other respondents, directing them to perform their statutory duty and/or to refund or cause to be refunded to the appellant the amount of Rs. 62,809-5-2 which, it was alleged they were entitled in law to receive. The respondents contested the claim and the High Court dismissed the writ petition holding that there was no statutory obligation on the State to refund the amount, that the order of the appellate authority did not necessarily imply an order the State to refund the amount and that the writ of mandamus could not be issued for the purpose of refund of the tax wrongly realised as held by the appellate authority as that would amount to ordering the execution of the decisions of the appellate authority. The order of the High Court was assailed by the company in the Supreme Court. Two questions arose for determination by the Supreme Court in the Appeal. The first was whether a petition under Art. 226 | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-16 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | determination by the Supreme Court in the Appeal. The first was whether a petition under Art. 226 of the Constitution praying solely for the refund of money alleged to have been illegally collected by the State as tax was maintainable under Art. 226 adverting to the first question, their Lordships of the Supreme Court observed : | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-17 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "We are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Art. 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as tax. We have been referred to cases in which orders had been issued directing the state to refund taxes illegally collected, but all such cases had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the courts were moved by a petition under Art. 226 simply for the purpose of obtaining refund of money due from the state on account of its having made illegal exactions. We do not consider it proper to extend the principle justifying the consequential order directing the refund of amounts illegally realised, when the order under which the amounts had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and therefore could take action under Art. 226 for the protection of their fundamental right, and the courts, on setting aside the assessment orders, exercised their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised, we do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claim a right."
In the view expressed above, the appeal preferred by the Company was dismissed and the order of the High Court was confirmed. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-18 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 10. It may be noted that in the present case not only the legality of levy of excise duty on the cost of jute bags is questioned but also refund of the same paid under protest is prayed for. There is also no delay whatsoever on the part of the company in seeking refund of the amount of excise duty paid under protest. The claim of the company even if it were enforced by way of a suit could not have been resisted by the respondents by raising any plea of limitation as the same having been made well within the period of limitation.
11. In D. Cawasji & C. vs. State of Mysore - the appellants therein sought refund of amounts of Education Cess paid under a mistake of law, by way of writ petitions filed before the High Court of Mysore under Art. 226 of the Constitution of India, the Act authorising payment of Educating Cess was struck down by the High Court of Mysore in an earlier proceedings. Refund of amounts of Education Cess levied and paid was not prayed for in the earlier proceeding. The High Court of Mysore declined to exercise its jurisdiction under Art. 226 of the Constitution of India and the writ petitions were dismissed. The appellant thereupon moved the Supreme Court. The Supreme Court confirmed the decision of the High Court. Their Lordships of the Supreme Court quoted with approval the principles laid down in State of M.P. vs. Bhailal Bhai (Supra) and State of Kerala vs. Aluminium Industries Limited (Supra) and added in paragraph 10 of their judgment : | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-19 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "A tax is intended for immediate expenditure for the common good and it would be unjust to require its repayment after it has been in whole or in part expended, which would often be the case, if the suit or application could be brought at any time within three years of a court declaring the law under which it was paid to be invalid, be it a hundred years after the date of payment. Nor is there any provision under which the court could deny refund of tax even if the person who paid it has collected it from his customers and has no subsisting liability or intention to refund it to them, or, for any reason, it is impracticable to do so."
12. In Abdul Quader & Co. vs. Sales Tax Officer - , the vires of Section 22(2) of the Hyderabad General Sales Tax Act, 1959 which laid down that any amount collected by way of tax by any person otherwise than in accordance with the provisions of the Act must be paid over to the Government and in default of such payment, the said amount would be recovered from such person as if it were arrears of land revenue, was challenged. Their Lordships of the Supreme Court held that the impugned Section 11(2) of the Act was not within the competence of the State Legislature under Entry 54 of List II of Schedule VII of the Constitution and that the provisions of Section 20(2) being consequential to Section 11(2) would also fall along with it. Their Lordships added :
"If a dealer has collected anything from purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer." | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-20 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 13. In Sales Tax Officer vs. Tata Oil Mills Co. Limited - 36 STC 232 (SC) their Lordships of the Supreme Court held :
"It would not, however, be permissible for the State Legislature to enact a law under entry 54 for recovery by the State of an amount which could not be recovered as Sales Tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax. Such a law plainly would not be a law relating to tax on the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax. It looks perhaps odd that a dealer should recover in the course of business transactions certain sums of money as sales tax or purchase tax payable to the State and that he should subsequently decline to pay it to the State on the ground that the same amount is not exigible as sales tax or purchase tax. Whatever might be the propriety of such a course, the question with which we are concerned is whether the State Legislature is competent to enact a law under entry 54 for recovery by the State of an amount, which though not exigible under the State law as sales tax or purchase tax was wrongly realised as such by a dealer. The answer to such a question has to be in the negative."
The decision in Abdul Quader & Co. vs. Sales Tax Officer (Supra) was quoted with approval.
14. In Atic Industries vs. Assistant Collector, Central Excise - , their Lordships of the Supreme Court while setting aside the assessment to excise duty made by the excise authorities on the dye-stuffs manufactured by the appellants wherein directed the respondents to refund to the appellants forthwith the amount collected in excess of the correct duty of excise leviable in accordance with the principles laid down in the judgment delivered therein. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-21 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 15. In Annapurna Match Industries, Cuddapah vs. Union of India and another - . The legality of imposition and collection of excise duty on matches manufactured by Annapurna Match Industries was assailed in a proceeding instituted under Article 226 of the Constitution of India. Refund of the excise duty so collected was also prayed for. A Division Bench of this court declared the imposition and collection of excise duty to be without jurisdiction and not authorised by law. Adverting to the claim of refund of the excise duty asked for, the Division Bench observed :
"The respondent cannot be allowed to appropriate the duty so collected. As the duty was collected under a void provision the petitioner is also entitled to an Order for refund of the duty collected from him by the respondents." | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-22 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 16. In Union of India vs. Mansingka Industries Pvt. Ltd. - 1979 ELT 158 (Bombay), Mansingka Industries Private Limited, a company incorporated under the Indian Companies Act filed a suit in the Court of the Civil Judge, Senior Division at Jalgoan contending that the Union of India illegally recovered from it certain monies purported to be excise duties under the Central Excises and Salt Act. The suit was decreed. The decree was assailed by the Union of India in the High Court of Bombay of the ground that Section 40 of the Central Excises and Salt Act excluded the jurisdiction of Civil Court to recover duty illegally collected by the Government. Repelling the contention, Mukhi J., held that Section 40 of the Central Excises and Salt Act merely enacted immunity or protection against claims for damages against the Government itself or any of its officers for acts done in good faith and that questions of collection of illegal duty and/of its recovery or refund were not questions covered by the said section and that Section 40 of the Central Excises and Salt Act did not bar the jurisdiction of civil or criminal courts from recovery of duty illegally collected. In result, the appeal preferred by the Union of India was dismissed. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-23 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 17. In Associated Bearing Company Limited vs. Union of India and another - 1980 ELT 415 (Bombay), following the earlier decision of the Division Bench of the High Court of Bombay in Union of India vs. Mansingka Industries Private Limited (Supra), a Division Bench of the High Court of Bombay held that the jurisdiction of the authorities under the Central Excise Act was to recover duty according to law, that if any duty was recovered on post-manufacturing expenses or on a price which was not permissible in law, such a levy clearly amounted to exercising excess of jurisdiction or acting without jurisdiction and could not be held merely an error of jurisdiction that it could not, therefore, be construed as resulting due to any inadvertance, error or misconstruction on the part of the Department for purposes of limitation as contemplated under Rule 11 of the Central Excise Rules, 1944, that once the recovery of the excise duty by the Department was held to be illegal, the provisions of Rule 11 would not be attracted, that a claim for such a refund could be entertained within three years from the date when the mistake of law was discovered and that there was no provision in the Central Excise Law under which a manufacturer could be denied the refund of duty illegally collected from him even though he had recovered it from the customers and had no intention to refund it to them and that the claim of refund of duty illegally collected by the Department could be entertained even in a proceeding under Article 226 of the Constitution.
The Division Bench of the High Court of Bombay placed reliance upon paragraph 10 of the judgment of the Supreme Court in D. Cawasji & Co. vs. State of Mysore (Supra), extracted earlier. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-24 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 18. In Maharashtra Vegetable Products Pvt. Ltd. and another vs. Union of India and others - 1981 ELT 468 (Bombay) a Division Bench of the High Court of Bombay again held, following the earlier decisions of its two Division Benches in Union of India vs. Mansingka Industries Private Limited (Supra) and Associated Bearing Company Limited vs. Union of India and another (Supra), that the excise authorities had no jurisdiction to take into account any post-manufacturing expenses for purpose of chargeability of excise duty, that if excise duty was wrongly collected on post-manufacturing expenses, it clearly amounted to exercising of powers without jurisdiction and outside the provisions of the Central Excises Act, that it wound not attract the bar of limitation prescribed under Rule 11 of the Central Excise Rules, 1944 for purposes of refund, that the amount of duty illegally collected was refundable even though it was recovered from the consumers by the manufacturers and might result in unjust enrichment, that where the constitutional validity of a levy was in question and the departmental action amounted to recovery of tax without authority of law, it could not be said that a suit was a remedy equally expenditious, efficacious and adequate as a proceeding under Article 226 of the Constitution and that the period of limitation for filing a proceeding under Art. 226 of the Constitution was three years from the date of the court declaring the law under which the duty was paid to be invalid.
19. The Union of India applied to the Supreme Court for special leave to appeal against the decision in Maharashtra Vegetable Products Pvt. Ltd. and another vs. Union of India and others (Supra) and leave was refused by their Lordship of the Supreme Court consisting of the Chief Justice and Mr. Justice Eradi on 3-4-1981. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-25 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 20. In Paper Products Ltd. vs. Union of India - 1981 ELT 538 (Bombay), a single Judge of the Bombay High Court held that if duty paid by mistake was declared by a competent Court to be invalid in law, it would fall within the purview of Section 72 of the Contract Act and the Government would be under an obligation to refund it.
21. In Madras Fertilisers Ltd. vs. Assistant Collector of Central Excise, Madras & others - 1981 ELT 194 (Madras) it was held by Varadarajan J., that the Government was not entitled to retain the excess duty recovered or collected as there was a legal obligation on its part to return the same and as there was a corresponding legal right in the assessee to recover the same.
22. In Prem Cables Pvt. Ltd. vs. Assistant Collector (Principal Appraiser) Customs, Bombay and Others - 1981 ELT 440 (Raj.) it was held by a Division Bench of the High Court of Rajasthan that the High Court could issue a direction for enforcement of fundamental rights to give constitutional relief by way of refund of money paid under a mistake of law and realised by the Government without the authority of law and that if a proceeding under Article 226 of the Constitution of India was instituted within three years from the date the mistake of law became known to the assessee, the amount could be refunded by issuing a writ of mandamus and institution of a suit in a Civil Court was not necessary for the purpose. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-26 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 23. In I.T.C. Limited and Others vs. Union of India and Others (Supra) it was held that the revenue had no right to retain taxes of any kind illegally levied and collected if the same were not authorised by law and the aggrieved assessees claiming refund of such duties could not be denied the remedy under Art. 226 of the Constitution.
24. In Assistant Collector of Customs : Madras and Others vs. Premraj and Ganapat Raj and Co. (P) Ltd. - 1978 ELT 630 (Madras) a Division Bench of the Madras High Court directed refund of excise duty to the assessee on the ground that the recovery of duty was without the authority of law.
25. In Vazir Sultan Tobacco Co. Ltd. vs. Union of India and Others 1981 ELT 140 (Delhi) a single Judge of the Delhi High Court held that any duty realised in excess of what was permissible under the Central Excise Act, would be realisation outside the provisions of the Act and the time limit laid down for refunds in Rule 11 read with Rule 173J of the Central Excise Rules, 1944 would not apply in such cases and that where the Government realised the duty in contravention of the law the court was fully competent to allow the refund of the excess amount of duty under Art. 226 of the Constitution even though the claim of refund had been held to be time bared by the departmental authorities. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-27 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 26. In Hyderabad Asbestos Cement Products Ltd. vs. State of Andhra Pradesh - 24 STC 487 the appellant therein was a public limited company carrying on the business manufacturing and selling asbestos cement sheets and other products with its factory situated at Sanatnagar, Hyderabad in the State of Andhra Pradesh. For the year 1959-60, the Commercial Tax Officer, in assessing the turnover of the Company allowed a deduction of Rs. 57,590.37 in respect of railway freight on articles supplied to outstation customers. The Deputy Commissioner of Commercial Taxes later revised the assessment and directed that the railway freight paid in respect of the goods sold be included in the turnover. In appeal the Appellate Tribunal set aside the order passed by the Deputy commissioner of Commercial Taxes. But the order passed by the Tribunal was set aside by the High Court of Andhra Pradesh and the order passed by the Deputy Commissioner was restored. A writ petition moved by the Company challenging the assessment was also dismissed. The company thereupon moved the Supreme Court. The Supreme Court held that under the terms of the contract there was no obligation on the part of the company to pay the freight and the price received by the Company for the sale of the goods was the invoice amount less the freight. In that view the appeals preferred by the Company were allowed by the Supreme Court. Adverting to the plea put forward on behalf of the State that the Company realised sales tax on the freight from its customers, their Lordships observed : | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-28 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "If, apprehending that it may have to pay sales tax on the freight, the Company collected sales tax on the freight, the true nature of the contract between the Company and the purchasers cannot on that account be altered. The Company may be liable to refund the amount of excess sales tax to its purchasers. But that is a matter between the Company and the purchasers and the State cannot seek to levy tax on railway freight if it is not made a part of the price".
27. To sum up, the excise authorities have no jurisdiction to levy excise duty except in conformity with and as empowered by the provisions of the Central Excise Act and the rules made thereunder. Any duty collected otherwise is without authority of law and is liable to be refunded to the assessee. The Union of India has no right to retain the duty so illegally levied and collected. In a proceeding instituted under Art. 226 of the Constitution of India questioning the levy of such illegal excise duty, the assessee is entitled to the consequent relief of refund of the duty so illegally collected when the illegal levy is quashed in the said and same proceeding, unless a plea of limitation is available to the Union of India in case the claim were to be enforced by way of a suit. The assessee's claim for refund of excise duty illegally levied any paid by him under protest stands on a still higher footing. (The discretionery jurisdiction of the High Court under Art. 226 of the Constitution cannot, however, be exercised merely for the purpose of obtaining refund of the duty declared to have been collected illegally in an earlier or a different proceeding). Even if the assessee passed on to his consumers, the duty illegally recovered from him, it is a matter between him and his consumers and the High Court cannot deny refund of the illegally levied and collected duty, to the assessee even if it results in unjust enrichment of the assessee. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-29 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 28. On behalf of the Union of India, reliance is placed on the decision in Madras Aluminium Company Ltd. and Another vs. Union of India, 1981 ELT 478 (Madras). The petitioners therein filed writ petitions before the High Court of Madras questioning levy of excise duty on aluminium properzi rods and praying for refund of the duty paid under mistake of law. Adverting to the claim of refund of excise duty, Division Bench of the High Court of Madras observed :
"There is one other impediment in the way of the petitioners claiming refund of excise duty in this case. The petitioners, after paying the excise duty as per the classification made ny the excise authorities, have passed on the same to the actual consumers and in fact, the actual consumers have borne the entire liability towards excise duty. The petitioners admit that they are not able to trace at this stage as to who are the ultimate consumers in respect of the goods which have suffered excise duty, in respect of which refund is now sought for by them. Though excise duty is levied at the production or manufacture of goods for home consumption, in substance it is a tax on consumption, and therefore, if at all it is the consumer who can claim the refund of the excise duty paid in respect of the article purchased and consumed by him and not the petitioners who produced the articles and who have recouped themselves to the extent of the excise duty paid to the State.
....................................................... | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-30 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | .......................................................
In respect of sales tax paid by the dealers and which has been passed on to the consumers courts have held that the money paid as tax primarily belonged to the consumers who paid it and not to the dealers (vide 16 STC 973 - IS, C.R. 735 and 30 STC 120). Therefore, the petitioners having passed on the excise duty, paid by them to the state, to the consumers, they cannot have any beneficial interest on the excise duty if and to be refunded by the State and the beneficial interest is vested only if all the consumers who had ultimately borne that burden. As pointed out by the Supreme Court in R.C. Jall vs. Union of India, 1962 Supp. 3 SCR 436 at page 451........ | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-31 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. If the ultimate incidence of the excise duty is on the consumer than the ultimate benefit of the refund of excise duty should also go to the consumer and not to the producer or manufacturer. Thus, even in the event of the court being satisfied that excise duty is not excisable on the molten aluminium which is aluminium in crude from, the court is not bound to direct refund of the duty if it ultimately results in the unjust enrichment of the producer and unfair deprivation of the benefit to the consumers. As already stated, the petitioners are not in a position to say as to who are the ultimate consumer who had in fact borne the excise duty. Therefore, there is no question of the petitioners refunding the excise duty pro rata to the actual consumers. It is true this court can in its discretion direct refund of the excise duty illegally corrected from the petitioners. But in the circumstances of this case, where the petitioners cannot in their turn refund the excise duty pro rata to the actual consumers, such a refund will result in their unjust enrichment to the extent of the amount directed to be refunded and the court will be justified in refusing to exercise its discretionary jurisdiction to direct the refund of the excise duty collected from the petitioners. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-32 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | It is well established that the right of the petitioners to get a refund of the excise duty is subject to questions of estoppel, limitation and the like. If peculiar circumstances existed and they showed that the amount the State has to refund really belongs not to the petitioners but to the consumers, then the court will be justified in refusing to direct refund. In this case, any direction to refund the excise duty to the petitioners will result in their retention of the duty collected by them from the consumers and the court will be siding an unjust enrichment by the petitioners by such a direction. Admittedly the petitioners have passed on the excise duty to the consumers and this was done on the basis that they have paid excise duty to the State. But for the payment of excise duty to the State the petitioners will not be entitled to or enabled to pass on the duty to the consumers. Therefore, if there is no possibility of excise duty being refunded to the actual consumers, the petitioners will have the benefit of both the collection of excise duty from the consumers and the benefit of refund from the State. Thus the court will indirectly and unjustly be enriching the petitioners by directing a refund of the excise duty paid by them. We are, therefore, satisfied that having regard to all the circumstances the petitioners are not entitled to get a refund of the excise duty if they are not in a position to trace the actual consumers and pay back the excise duty collected from them. The discretionary jurisdiction of this court under Art. 226 of the Constitution should be exercised for public good and not to facilitate the petitioners to make an unlawful gain at the instance of the public (consumers) on the one hand and the State on the other, and the exercise of the extraordinary jurisdiction of this court must advance the cause of justice and not subserve the object of the petitioners to enrich themselves unjustly by getting a refund of the excise | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-33 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | the object of the petitioners to enrich themselves unjustly by getting a refund of the excise duty from the State and retaining the same without refunding in to the consumers. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-34 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | ............... "............" | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-35 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | The Division Bench added :
"If, in fact the petitioners have no beneficial interest in the amount paid to the State as excise duty, as they have already recouped themselves to that extent from the consumers the claim for refund can in law be taken to be a claim made on behalf of the consumers. As already pointed out, it is impracticable to trace the actual consumers of the goods produced by the petitioners with reference to which excise duty was collected and therefore the court is justified in not directing the refund of the amount to the petitioners but directing the retention of the amount by the State as a deposit with a view to ultimately refund the same pro rata to the actual consumers, as otherwise, a direction to refund the exercise duty to the petitioners will result in their unjust enrichment, and the court will be actually giving an unjust benefit to them. In this view, even if there is any excess collection of excise duty in this case as contended by the petitioners, the petitioners are not entitled to get a refund. The excess collections, if any, will be retained by the State as deposit for the purpose of payment out at pro rata to the actual consumers who come forward and prove their claim for refund".
It may be noticed that the various decisions rendered by the Supreme Court and referred to earlier, recognising the right of the assessee to claim refund of duties or taxes illegally levied from him and the corresponding legal obligation on the part of the Union of India or the State to refund the same to the assessee were not noticed by the Division Bench of the High Court.
29. Reliance was also placed upon the decision of a Division Bench of this court in G.S.G.A. & Co. vs. State of A.P. - 30 STC 120 wherein, adverting to a claim for refund of sales tax which was held to be illegally collected, it was held : | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-36 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "Even if the court is satisfied having regard to all the circumstances that the petitioners are entitled to refund of the tax, the petitioners may still not be granted this discretionary relief if it results in retention of the sales tax collected by them from the public and imposes the burden of refunding the tax on the State which it had collected under a valid assessment order. The discretionary jurisdiction of this court should be exercised for public good and not to facility the individual to make an unlawful gain at the expense of the public on the one hand and State on the other. The extraordinary jurisdiction of the High Court under Art. 226 must advance the cause of justice and not subserve the ends of the individual for retaining the sales tax illegally collected by him..........
More than anything else, one fact which must strongly weigh against the claim of the refund of sales tax by the petitioners is that the petitioners have already collected the tax and any direction in these writ petitions to refund such tax as they have paid would result in allowing them to retain the tax illegally collected from the consumers and thus make an unauthorised gain for themselves, while the State which is in charge of the public funds and which has collected the tax as per the final orders of assessment, would be now obliged to return the same for the personal benefit of the dealer at the expense of the public from whom he has collected the tax. The extraordinary jurisdiction of this court must not be allowed to be invoked and the discretionery relief granted for the benefit of a private individual in this manner at the expense of the public and the State. The discretionary jurisdiction of this Court under Article 226 of the Constitution must not be allowed to be exploited to defeat the ends of justice." | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-37 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | It may be noted that in the above case sales tax collected from the dealers and sought to be refunded was levied under valid assessment orders which became final. That circumstance weighed with the Division Bench in refusing to grant the discretionary relief. The following observations of the Division Bench are pertinent : | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-38 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | "If the assessment order is not void but is only erroneous in law, the assessee is obliged to get the assessment order set aside. Otherwise as laid down in State of Vindhya Pradesh vs. Raghunath Mannulal - 1952 - 3 STC 256), "if the sales tax authority has jurisdiction, and has exercised it, may be wrongly, then the aggrieved party cannot go to the civil court, but should go to the Tribunal mentioned in the Sales Tax Statute itself, if, on the other hand, this authority had acted without jurisdiction, then the aggrieved party must go to the civil court, because its grievance is a general grievance and not one under the special law. If the assessment order is merely erroneous in law, the assessment cannot claim refund without getting the assessment order quashed by availing himself of the alternative remedy provided under the statute. He cannot invoke the jurisdiction of a civil court for questioning the legality or propriety of the assessment order and if that order cannot be questioned, then the amount paid or recovered pursuant to that order cannot be directed to be refunded by a civil court. If that be so then this court exercising jurisdiction under Article 226 of the Constitution must necessarily take into account whether a party who has by his own laches has not chosen to avail himself of the alternative remedy provided by the statute for questioning the erroneous decisions of the assessing authorities by taking the matter in appeal or in revision and also by reference to this court and has allowed the assessment orders to become final, which assessment orders are not allowed by the statute to be questioned even by way of a civil suit, should be granted the indulgence to invoke the extraordinary jurisdiction of this court of the grant of the discretionery relief. Even this court cannot direct refund of tax paid in pursuance of such orders without quashing the assessment orders themselves. If the assessment orders have to be quashed, this court cannot shut its eyes to the long interval | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-39 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | If the assessment orders have to be quashed, this court cannot shut its eyes to the long interval between the orders of assessment and the writ petitions". | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-40 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 30. In Hyderabad Asbestos Cement Products Ltd. and another vs. Union of India and others - 1980 ELT 735 (Delhi), the legality of levy of excise duty on asbestos fibre was questioned and refund of the duty paid was prayed for in the Delhi High Court. A Division Bench of the Delhi High Court held that the imposition was valid. Having recorded the said finding, the Division Bench observed in paragraph 32 of the judgment :
"In the petition there was also a claim for the refund of duty which had been paid. In view of my finding on the validity of imposition of the excise duty that question does not arise. Even if I had found otherwise a question may well have arisen whether an order of refund could be passed in favour of the petitioners. The reason is that excise duty and additional duty which has been imposed and as has been recognised by the Supreme Court is ultimately passed on to the consumers........................... ................................................. The benefit if any of the refund of illegally levied excise duty and additional duty should in all fairness normally belong to the consumers. In such a situation a question may well be raised that the petitioners cannot be allowed to unjustly enrich themselves by obtaining refund of the excise duty and additional duty which amount they have already recovered from the consumers when asbestos fibre was disposed of. This is on the equitable plea that if there is illegal levy and some refund is due the same should be disbursed to the buyers from whom the excise duty and additional duty was realised and not appropriated by the petitioners who in equity are not entitled to it".
We are of the opinion that the above observations of the Division Bench of the Delhi High Court are obiter dicta. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-41 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 31. In Ogale Glass Works Ltd. vs. Union of India and others - 1979 ELT (J 468) Bombay, the questions that arose for consideration were whether the cost of packing and packing materials could be included in the assessable value of glass and glassware manufactured by Ogale Glass Works Limited and whether the assessee was entitled to refund of the amounts of duty paid on the cost of packing and packing material. A Division Bench of the High Court of Bombay held that the cost of packing and packing materials could not be legally included in arriving at the wholesale cash price of the excisable goods manufactured by the assessee. The Division Bench, however, declined to grant refund to the assessee of the amounts excess duty collected from the assessee without the authority of law Mukhi J., speaking on behalf of the Bench observed :
"It requires to be noticed that the amount comes to nearly Rs. 12 lakhs and the result of an order in their favour would be that the petitioners would be enriched to that extent without any real claim to that money in so far as the record shows that the moneys were recovered by the petitioners from their customers and then passed on to the respondents.
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In the petition before us, I am unable to persuade myself that justice lies on the side of the petitioners and that this court will be doing justice in ordering the respondent to refund the amount of Rs. 12 lakhs to the petitioners when, to begin with, that money never came from the petitioner's pocket. It is true that the respondents may not have the legal right to retain that money, but in the circumstances of the case justice does not require that moneys moneys should be transferred from the respondents (who have no right to it) to the petitioners who also have no right to it". | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-42 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | It may be noted that the decision of the Division Bench of the High Court of Bombay suffers from the same comment levelled against the decision in Madras Aluminium Company Ltd. and another vs. Union of India (supra).
32. In Hindustan Pilkington Glass Works Ltd. vs. Superintendent, Central Excise, Asansole & others - 1978 ELT (J 229) (Cal.) a single Judge of the Calcutta High Court held that refund of duty, though paid under a mistake, but without a protest, could not be granted in a proceeding under Art. 226 of the Constitution of India. The decision in Ogale Glass Works vs. Union of India (supra) was relied upon by the learned Judge.
33. In Electric Lamp (India) Pvt. Ltd. vs. Collector of Central Excise, Calcutta and Orissa and others - 1978 ELT 84 (Calcutta) a single Judge of the Calcutta High Court held that a manufacturer who had already collected the excise duty alleged to have been paid in excess by mistake could not be allowed to have an unjust enrichment by claiming again refund of the same amount. | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-43 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 34. In Union Carbide Co. Ltd. vs. Assistant Collector of Central Excise and others - 1978 ELT 180 (Calcutta), a single Judge of the Calcutta High Court held that refund of duty paid under mistake of law could be claimed by way of a petition under Art. 226 of the Constitution, provided such petition was filed within three years. The decision in Electric Lamp (India) Pvt. Ltd. vs. Collector of Central Excise, Calcutta and Orissa and others (supra) was relied upon on behalf of the Union of India for negativing the claim of refund of excise duty on the ground that the assessee passed on the same to the actual consumers. Adverting to the said plea, the learned Judge observed :
"Of course the facts of the instant case are different from the facts in that case, inasmuch as there was positive evidence that the manufacturer had realised duties from the consumers. Such evidence is not available in the instant case but it may be presumed that though as a matter of law excise duty is payable by the manufacturer, as a matter of fact it is passed on to the consumers. But that in my opinion is no ground to invoke the theory of unjust enrichment. If unjust enrichment is not to be permitted to a litigant, it should not also be permitted to the State. The State has no right to collect unauthorised tax or illegal tax. Good fiscal administration enjoins that all lawful taxes should be properly collected and taxes which are not due if realised by the State should be refunded. Such fiscal administration alone ensures the atmosphere of tax compliance. But a question of limitation also arises in this case." | https://indiankanoon.org/doc/1168518/ |
57b2a9f6bb38-44 | Kesoram Cements, Basantnagar vs Union Of India And Ors. on 31 December, 1981 | 35. In Birla Jute Manufacturing Company Ltd. vs. Union of India and others - 1980 ELT 593 (M.P.) two writ petitions were filed in the High Court of Madhya Pradesh by the manufacturers of Portland Cement questioning levy of excise duty on the cost of packing of cement in gunny bags from 1st Oct., 1975 to 8th Jan., 1976 and praying for refund of the excess excise duty paid by them under protest. A Division Bench of the High Court while holding that the cost of packing of cement in gunny bags was not includible in the assessable value of cement under Section 4 of the Central Excises and Salt Act, 1944, also directed refund to the assessees, the amounts of excise duty paid by the assessee under protest. Adverting to the decision of the Division Bench of the Bombay High Court in Ogale Glass Works Ltd. vs. Union of India and others (Supra) relied upon by the Union of India in support of its contention that the assessee were not entitled to refund, it was observed : | https://indiankanoon.org/doc/1168518/ |