State Taxation Tribunal - West Bengal
Juneja'S Delhi Calcutta Carriers And ... vs Cct And Ors. on 17 May, 2001
Equivalent citations: [2002]128STC77(TRIBUNAL)
JUDGMENT
1. The record is put up for orders.
2. This application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 which is in the nature of a writ application, is at the instance of a transport company and is directed against an order dated June 5, 2000 by which the petitioner's prayer for refund of tax was rejected with a further prayer for refund of Rs. 1,58,374 said to have been collected illegally by the respondents from the petitioners.
3. Petitioner No. 1 is a proprietorship concern, while petitioner No. 2 is the proprietor of the said concern. The petitioners are transporters acting as a common carrier and running business of transporting goods in and outside the State of West Bengal. Thus the petitioners are not dealers within the meaning of the Bengal Finance (Sales Tax) Act, 1941 and the West Bengal Sales Tax Act, 1994. They are also not a casual trader within the meaning of West Bengal Sales Tax Act, 1994. Their case is that although they were not liable for taxation, yet they used to be intercepted in course of transport of goods outside the State of West Bengal and demanded payment of tax under Section 4C/4D of the Act of 1941. Trucks loaded with goods were detained illegally until tax under Section 4C/4D/11 or 14 is paid. Respondent No.3 or their agent verbally demanded advance tax and on some occasion such demand was made on plain paper. No demand notice was issued before collecting advance tax from the petitioners after keeping the vehicle in detention illegally.
4. In course of such business on January 10, 2000 the manager of the petitioners, namely, Shri Srikanta Jana came to know from Inland Road Service that an order was passed on December 10, 1999 by this Tribunal for refund of advance tax illegally collected from the petitioners by the respondents. On further enquiry the manager came to know from their advocate, Shri Supriya Mukherjee that the petitioners are entitled to get refund of advance taxes. Accordingly, two identical prayers were presented before the respondent Nos. 2 and 3 for refund of advance tax collected from the petitioners, but their prayers were rejected on the ground that their relief had become time barred by limitation. Those two orders, according to the petitioners, are illegal and liable to be set aside.
5. In this revisional application the said orders of the Assistant Commissioner of Commercial Taxes are under challenge and the question for determination is, whether such orders suffer from any illegality.
6. Learned Advocate appearing for the petitioners submits before us that the limitation will run from the date of the knowledge of the petitioners which, according to them, is the letter written by their advocate. Such letter appears to have been written on January 10, 2000. Their case is that when on January 10, 2000 they came to know from their advocate that they are entitled to get refund of the tax already paid, they applied to Assistant Commissioner of Commercial Taxes and Commercial Tax Officer for refund of advance sales tax/tax illegally collected or realised without any authority of law. To counter this argument learned State representative submits that limitation will run from the date of publication of the judgment and, therefore, the prayer of the petitioner, having not been made within the period of limitation, petitioners are not entitled to any relief.
7. Therefore, the question for consideration is whether the date of pronouncement of a judicial decision and its publication in the law journal will be the date of knowledge of the petitioner or whether the date on which the letter of their advocate was received will be the date of acquiring their knowledge about the judgment of this Tribunal.
8. On this point the matter came up for consideration before the Division Bench consisting of honourable Mr. B.K. Lala, Judicial Member and honourable Mr. D. Bhattacharyya, Technical Member when they referred the matter to this larger Bench as they were unable to come to a decision. In this context the case came up for consideration before this larger Bench which was constituted under Section 9 of the West Bengal Taxation Tribunal Act, 1987. In order to come to a decision let us now consider the relevant principles of law. In this regard different courts interpreted the law of limitation and in a series of decisions it was found that the limitation for recovery of money shall begin from the date when mistake under which it was paid has come to the knowledge of the party. This was the view taken by the Supreme Court in a case reported in [1990] 78 STC 404 (Mahabir Kishore v. State of Madhya Pradesh). The question, therefore, is which date should be accepted as the date of knowledge of the party. In (1984) 18 ELT 207 Bom (Universal Drinks Private Limited v. Union of India) it was held that the period of limitation shall not begin to run until the applicant has discovered or could with reasonable diligence have discovered it. Normally in the case of mistake of law, a mistake can be said to be discovered when the court has rendered a decision taking a particular view, but knowledge of the date of decision cannot be attributed to a person concerned particularly when by proper evidence he satisfied that he did learn about the same at a later date. It is, therefore, not correct to say that the date of decision of a court of law would always be the date of discovery of mistake, particularly when the judgment was unreported one. In [1990] 78 STC 404 (SC) (Mahabir Kishore v. State of Madhya Pradesh) referred to above, it was held that limitation did not start until the date on which the plaintiff discovers the mistake with reasonable diligence. In this case, the fact was that the High Court of Madhya Pradesh in its judgment delivered on August 31, 1961 (N.K. Doongaji v. Collector, Surguja) held that realisation of money was illegal by the Government. The petitioners have made out a case that they have come to know about the decision only in or about September, 1962. In October, 1964 notice was served upon the Government claiming refund of money. It was held there that there was nothing to show that the petitioner-appellants were aware of the mistake. In the instant case, there is no dispute that the petitioners have paid advance taxes to the tune as referred to above. The only question is whether their claim for refund is barred by limitation. The learned advocate appearing for the petitioners submits that their claims have not become barred by limitation as they were not aware of the judgment and according to them, limitation will run from the date on which they received the instruction from their advocate, i.e., Shri Supriya Mukherjee. Therefore, the fact remains that there was payment of advance tax. In the case of Madras Port Trust v. Hymanshu International reported in AIR 1979 SC 1144 it was held that the department should not resort to technical pleas of limitation in regard to the legitimate claims made against them by the claimants. Therefore, the refund claims in these writ petitions were admissible because they were genuine and not disputed on merits by the department even though assumed to be barred by limitation. The petitioners' case is that they came to know of the judgment on January 10, 2000 and this fact has not been disputed. Therefore, in view of the decision of the Supreme Court as referred to above, the knowledge of the petitioner from their advocate's letter should be taken as true. The bona fide claim of the petitioner cannot be rejected relying simply on some technicalities. In a case reported in AIR 1980 SC 1037 (Shiv Shanker Dal Mills v. State of Haryana) where public bodies under colour of public laws recovered people's money later discovered to be erroneous levies, the court held that there is no law of limitation specially for public bodies on the virtue of returning what was wrongly recovered to whom it belongs. When there is no dispute that the petitioners came to know about the judgment of this Tribunal on January 10, 2000, their prayers cannot be rejected relying on some technicalities of the law of limitation. There is no dispute that they had paid taxes in advance and, therefore, there seems no ground for refusing the prayers for return simply on the ground of limitation. Thus after having considered all aspects of the case and having regard to the decisions rendered by the apex Court, we are of the view that the prayer of the petitioner is not barred by limitation and, therefore, this revisional application cannot be rejected on the ground of limitation. So far as the question of limitation is concerned, this application is within time and this reference is accordingly disposed of. Since we have not entered into other aspects of the case, all other points are left open to be decided by a Division Bench of this Tribunal fixing July 17, 2001 for further hearing.
LATER After we have delivered this order, learned State Representative makes a verbal prayer for stay of operation of this order. Since we are not disposing of the main application and it is only an order in the nature of interlocutory order, the prayer for stay is refused.