SINGH, J. - (1.) THESE goup of petitions are between the same parties and raise common question of law and as such we propose to dispose them of by a common judgment.
(2.) THE assessee is a Hindu undivided family and manufacturers railway wagons. During the period covered by the assessment years 1961-62 to 1966-67, the Government of India through the Minisre assessee on terms and conditions, and stipulations contained in the Indian Railways Standard Conditions of Contract A5-51 (Revised), in so far as they were not inconsistent with the special conditions of contract, attached as per annexure A to the petition. The conditions of contract in each of the assessment years were substantially the same. During the assessment year 1961-62, the assessee received payment from the Government to the extent of Rs. 3,34,631. This amount was included in the turnover of the assessee and was subjected to tax by the order of assessment dated 14th June, 1965. The amount of tax imposed on this amount came to Rs. 6,692.62. In this year 1962-63, the turnover in respect of payment received for the supply of railway wagons was assessed at Rs. 36,74,055 and the tax imposed by the assessment order dated 19th June, 1965, was Rs. 73,481.10. In the year 1963-64, the turnover assessed was Rs. 93,90,376 and the tax assessed by the order dated 30th March, 1966, was Rs. 1,87,607.52. In the year 1964-65, the turnover was assessed at Rs. 1,34,43,604 by the assessment order dated 31st October, 1966, and the tax imposed came to Rs. 2,68,872.08. In the year 1965-66, the turnover was taxed at Rs. 1,33,72,816 and the tax assessed came to Rs. 2,67,456.32 as per assessment order dated 30th September, 1967. In the year 1966-67, the turnover in respect of this item was Rs. 93,54,422, and the tax assessed by the assessment order dated 23rd January, 1968, amounted to Rs. 1,87,088.44. The assessee did not prefer any appeal against these orders. It appears that the sales tax paid by the assessee had been recovered by it from the railways. On the 7th June, 1968, a letter was sent to the assessee by the Deputy Director Stores (Wagons), Railway Board, intimating that in view of the judgment of the Mysore High Court in the case of Hindustan Aeronautics Ltd. v. Commissioner of Commercial Taxes, Mysore (delivered on 15th March, 1967), it appeared that the contracts for the manufacture of railway coaches were works contracts, and as such no sales tax was payable thereon. It was asserted that inasmuch as the sales tax that had been paid by the railway to the assessee was paid under a mistake of law, the amounts paid would be recovered from the assessee. The assessee by this letter was advised to take appropriate proceedings for recovery of sales tax from the State Government, but this was without prejudice to the railway's right to recover from the assessee the entire amount of sales tax. The assessee thereafter moved applications for the rectification of the assessment order on the ground that the orders were apparently erroneous, inasmuch as they sought to bring the tax payments received by the assessee in respect of works contracts. A prayer for refund was also made in these applications. The applications for rectification and refund were moved on the 15th June, 1968, for the years 1961-62, 1962-63, 1963-64, 1964-65 and 1966-67, while for the year 1965-66, it was moved on 12th June, 1968. All these applications were consolidated and disposed of by a common order dated 30th October, 1968, by which they were dismissed. The Sales Tax Officer while dismissing the applications gave the following reasons : (1) That the assessee had treated himself to be a dealer in respect of these sales, and had realised sales tax and also deposited the same. (2) That he raised no objection in the course of assessment that no sales were effect by him and as such there was no error apparent in the order of assessment. (3) That the stand taken up by the assessee that the facts of his case were similar to that of Hindustan Aeronautics Ltd. could not be accepted inasmuch as no such plea had been taken by the assessee in the course of the assessment proceedings. (4) That the case of Hindustan Aeronautics Ltd. was inapplicable to the case of the assessee, inasmuch as while Hindustan Aeronautics Ltd. held the works at Bangalore for and on behalf of the President of India, and the property in trust for him, there was no similar provision in the contract of the assessee. The assessee thereafter preferred revisions against the orders of the Sales Tax Officer. These revisions were dismissed by a common order dated 22nd December, 1972. It was urged before the revising authority that the assessee had filed copies of the contract and indemnity bond relating to the contract, and as such there was an error apparent on the face of the record, which required rectification. The revising authority found as a fact that the contract and indemnity bond were not filed during the course of the assessment proceedings, but were filed during the proceedings under section 22 of the Act. It, accordingly, held that, in view of this, it could not be said that there was any error apparent on the face of the record as contemplated by section 22 of the Act, and as such the application was rightly rejected. None of these two authorities gave any reasons for rejecting the claim for refund. The petitioner, thereafter, filed the present petitions, and has prayed for quashing of the assessment orders in so far as they relate to the imposition of sales tax on payments received in respect of the supply of railway wagons, and also for a direction for refund of the tax imposed on such transactions. Counsel for the State has taken no objection to the maintainability of the writ petition, inter alia, on the following grounds : (1) That the petition mainly being for refund, such a petition does not lie under article 226 of the Constitution. (2) That there being no error in the order of assessment, the same cannot be quashed by way of a writ of certiorari, and the petitioner as such cannot claim any refund so long as the assessment order remained untouched. (3) That the proper forum for contending that the assessment order was invalid, was by way of an appeal to the appellate authority, and inasmuch as the petitioner has not availed of such a remedy, it is disentitled to the relief under article 226 of the Constitution. (4) That the petition is delayed, inasmuch as it has not been field within a reasonable time from the date of the passing of the assessment order. (5) That the petitioner should be deemed to have knowledge of the decision of this court in the case of Kays Construction Company v. The Judge (Appeals) Sales Tax, Allahabad ([1962] 13 S.T.C. 302), and inasmuch as the petitioner paid the tax without any demur after that decision, it could not be said that the tax in question was paid under a mistake of law, and that being so, the petitioner cannot claim refund of an amount which has been paid voluntarily. These contentions have been vehemently refuted on behalf of the petitioner. The circumstances and the conditions under which a refund can be directed to be made under article 226 of the Constitution has been considered by their Lordships of the Supreme Court in a large number of cases. It is now necessary to advert to these decisions.
(3.) IN Burmah Construction Co. v. State of Orissa and Others ([1961] 12 S.T.C. 816 (S.C.); A.I.R. 1962 S.C. 1320), the assessee had paid tax under the Orissa Sales Tax Act. It does not appear that any appeals, etc., were taken against that assessment order. Sub-sequently, a writ petition under article 226 of the Constitution was filed before the Orissa High Court for a declaration that a certain provision of the Orissa Sales Tax Act authorising the imposition of sales tax on a turnover of "works contracts" and "repair works" was ultra vires the State Legislature, and also for refund. The Orissa High Court allowed the petition, but directed refund only of such amounts as were not barred under section 14 of the Orissa Sales Tax Act. That provision is in pari materia with section 29 of our Sales Tax Act, and imposes a limitation of twenty-four months for claiming refund of tax. Before the Supreme Court, it was contended that section 14 of the Act which imposed a period of limitation for refund of tax was ultra vires. This contention was repelled. It was, however, held that the High Court can in a petition under article 226 of the Constitution direct payment of money against the State, or against an officer of the State, to enforce a statutory obligation, and inasmuch as in the petition, the assessee had claimed for the enforcement of a statutory obligation imposed under section 14 of the Act, the petition was maintainable, but it could only be allowed subject to the restriction or the limitation contained in section 14 of that Act. The question as to whether the assessee had a right to recover the balance of tax, which was barred by limitation under statute, by way of suit was left unanswered.;