The Orient Paper Mills Ltd. Vs. The
State of Orissa & Ors  INSC 117 (24 March 1961)
AIYYAR, T.L. VENKATARAMA DAS, S.K.
CITATION: 1961 AIR 1438 1962 SCR (1) 549
CITATOR INFO :
R 1962 SC1230 (5) D 1964 SC 922 (6) R 1964 SC
925 (25) D 1971 SC 946 (4,8) RF 1973 SC1461 (218) RF 1977 SC2279 (57) R 1985 SC
218 (17,18,19,20) D 1985 SC 901 (10) F 1987 SC 27 (4)
Sales Tax-Tax imposed on sales outside the
State-Refund, claimable by dealer or purchaser-Assessee's fundamental
right-Reasonable restriction-Orissa Sales Tax Act, 1947 (XIV of 1947), ss. 9B.
cl. (3), 14-Orissa Sales Tax (Amendment) Act, 1958 (28 of 1958),
s.14A-Constitution of India, Art, 19(1)(f).
The appellants who were registered as dealers
under the Orissa Sales Tax Act, 1947, used to collect sales tax from the
purchasers on all sales effected by them including sales to dealers in other
states. They were assessed to and paid tax on their turnover which included sales
outside the State of Orissa, but after the decision of this Court in State of
Bombay v. The 'United Motors (India) Ltd.,  S.C.R. 1069, they applied
under s. 14 of the Act for refund of tax paid on the ground that sales outside
the State were not taxable under cl. (1)(a) of Art. 286 of the Constitution
read with the Explanation. Refund was refused by the Sales Tax Authorities and
the Board of Revenue. In petitions moved by the appellants for writs of
certiorari and Mandamus against the orders of the Board of ,Revenue the High
Court ordered refund of tax paid for certain periods and refused it in regard
to other periods. The Orissa Sales Tax Act was, however, amended in 1958 with
retrospective effect incorporating S. 14-A which provided that refund could be
claimed only by the person from whom the dealer had realised the amount by way
of sales-tax or otherwise.
550 Held, that under S. 14-A of the Orissa
Sales Tax (Amendment) Act, 1958, refund of tax which the dealer was not liable
to pay could 'be claimed by the person from whom the dealer had actually
realised it whether as sales tax or otherwise, and not by the dealer.
The legislature was competent to legislate
for granting )IS refund of sales tax improperly collected; there, is no reason
to exclude the power to declare that refund shall be claimable only by the
person from whom the dealer has realised the amount as sales-tax or otherwise.
Under s. 9B, cl. 3 of the Act, if the amount
realised by the assessee exceeded the amount payable as tax such amount must be
deposited in the Government treasury, and the assessee having no beneficial
interest in such amount the enactment that the amount shall be claimable only
by the persons who paid the amounts to the dealers as sales-tax is a reasonable
restriction imposed on the right of the assessee to obtain refund in the
interest of the general public, and does not infringe the provisions of Art.
19(1)(f) of the Constitution. If the assessees discharge their statutory
obligation to deposit the amount collected by them as sale tax in the
Government treasury they cannot be exposed to any claim for refund by the
persons from whom the tax is collected, even though such persons were in the
first instance not liable to pay the tax.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 273 to 277 of 1960.
Appeals by special leave granted by the
Supreme Court by its order dated December 15, 1958, from the judgment and order
dated February 4, 1957, of the High Court of Orissa in O. J.
C. Nos. 184 to 188 of 1955.
H. N. Sanyal, Additional Solicitor-General of
India and B. P. Maheshwari, for appellants (In C. As. Nos. 273 and 274 of 1960)
and respondents (In C. As. Nos. 275-277 of 1960).
C. K. Daphtary, Solicitor-General of India,
B. R. L. Iyengar and T. M. Sen, for respondents (In ('J. As. Nos. 273 and 274
of 1960) and appellants (In C. As. Nos. 275-277 of 1960).
1961. March 24. The Judgment of the Court was
delivered by SHAH, J.-The Orient Paper Mills Ltd., thereinafter called the
assessees-are a public limited company having their registered office at
Brajrajnagar in the 551 district of Sambalpur, Orissa State. The assessees are
manufacturers of paper and paper-boards and are registered as dealers under the
Orissa Sales Tax Act, 1947-hereinafter referred to as the Act. The assessees
used to collect tax from the purchasers on all sales effected by them including
sales to dealers in other States. For the quarters ending March 31, 1950, June
30, 1950, September 30, 1950, December 31, 1950 and March 31, 195 1, the assessees
paid Sales-tax which they were assessed by the Assistant Collector of Sales-tax
to pay, on their turnover which included sales outside the State of Orissa.
After this court delivered the judgment in
The State of Bombay and Another v. The United Motors (India) Ltd. and Others
(1) the assessees applied for refund under s. 14 of the Act of tax paid in
respect of goods despatched for consumption outside the State of Orissa
contending that according to the law expounded by this court, the transactions
of sales outside the State were not taxable under the Act because of the
prohibition imposed by Art.
286(1) (a) of the Constitution read with the
Refund was refused by the Assistant Sales Tax
Officer and the order was confirmed by the Board of Revenue. In the view of the
taxing authorities, the orders of assessment in respect of the five periods had
become final on the diverse dates on which they were made and were not liable
to be reopened merely because the law applicable to the transactions was not
correctly appreciated by the taxing authorities. In petitions moved by the
assessees for writs of certiorari and mandamus against the orders of the Board
of Revenue, the High Court of Orissa held that the only restriction upon the
right of a dealer to apply for refund which "is found within the four
corners of s. 14 of the Act" being the law of limitation prescribed by the
proviso to than section, transactions in question not being liable to tax as
they were interstate transactions, the tax collected must be refunded on
applications submitted within the period prescribed. The High Court then
proceeded to hold that the recovery of tax paid for the first two (1) 
552 quarters was barred by limitation but not
recovery of tax paid for the remaining three quarters, and issued id. an order
in the nature of mandamus directing refund of tax in respect of the last three
quarters. The State of Orissa and the assessees have appealed with special
leave against the judgment of the High Court by these five appeals.
Counsel for the State of Orissa contends that
no refund could be granted because the orders of assessment had become final
and s. 14 of the Act applied only to cases of refund in which a superior taxing
authority in appeal or revision against the order of assessment directs or
declares that the tax has not been properly collected, and it does not apply to
cases of assessment which have become final, even if made on an erroneous view
of the law. The assessees support the view of the High Court that s. 14 applies
to all claims for refund and also contend that the recovery of tax paid for the
first two quarters was not barred by the law of limitation.
It is unnecessary for the purposes of these
appeals to consider the respective contentions of the parties. In our view the
claim of the assesses must fail because of the retrospective amendment of the
Act by the Orissa Legislature. By s. 14A which was incorporated by the Orissa
Sales Tax (Amendment) Act, 28 of 1958, it was provided:
"Notwithstanding anything contained in
this Act where any amount is either deposited by any person under sub-section
(3) of s. 9B or paid as tax by a dealer and where such amount or any part
thereof is not payable by such person or dealer, a refund of such amount or any
part thereof can be claimed only by the person from whom such person or dealer
has actually realised such amounts whether by way of sales-tax or otherwise and
the period of limitation provided in the proviso to s. 14 shall apply to the
aforesaid claims." In terms, the section provides that refund of tax
"id which the dealer was not liable to pay can' only be claimed by the
person from whom the dealer has actually realised it whether as sales-tax or
553 The section therefore deprives the assessees
of the common law right to claim refund of the amounts paid as tax under an
error of law that it was recoverable by the taxing authority. Counsel for the
assessees does not dispute that by the amending provision, the right to obtain
refund of tax is denied to him by the Legislature. He contends that the Act is
beyond the competence of the State Legislature, and in any event, it is void
because it imposes an unreasonable restriction upon the assessees' fundamental
right guaranteed under Art. 19(1)(f) of the Constitution.
By item 54 of List II of Schedule 7 to the
Constitution, the State Legislature was indisputably competent to legislate
with respect to taxes on sale or purchase of papers and paper-boards. The power
to legislate with respect to a tax comprehends the power to impose the tax, to
prescribe machinery for collecting the tax, to designate the officers by whom
the liability may be enforced and to prescribe the authority, obligations and
indemnity of those officers. The diverse heads of legislation in the Schedule-
to the Constitution demarcate the periphery of legislative' competence and
include all matters which are ancillary or subsidiary to the primary head. The
Legislature of the Orissa State was therefore competent to exercise power in respect
of the subsidiary or ancillary matter of granting refund of tax improperly or
illegally collected, and the competence of the Legislature in this behalf is
not canvassed by counsel for the assessees. If competence to legislate for
granting refund of sales-tax improperly collected be granted, is there any
reason to exclude the power to declare that refund shall be claimable only by
the person from whom the dealer has actually realised the amounts by way of
sales-tax or otherwise We see none. The question is one of legislative
competence and there is no restriction either express or implied imposed upon
the power of the Legislature in that behalf.
Art. 19(1)(f) of the Constitution prescribes
the right to freedom of citizens to acquire, hold and dispose of property; but
the right is by cl. (5) subject to tile 70 554 operation of any law, existing
or prospective, in so far as it imposes reasonable restrictions on the exercise
of that right in the interest of the general public. Assuming that by enacting
that refund of tax shall only be made to the purchasers from whom the tax has
been collected by the dealers and not to the dealers who have paid the tax the
fundamental right under Art. 19(1)(f) is restricted, we are unable to hold that
the restriction imposed by s. 14A of the Act is not in the interest of the
general public. The Legislature by s. 9B(1) of the Act authorised registered
dealers to collect tax from the purchasers which they may have to pay on their
turnover. The amounts collected by the assessees therefore primarily belonged
not to the assesssees but to the purchasers. On an erroneous assumption that
tax was payable, tax was collected by the assessees and was paid over to the
State. Under s. 9B, cl. (3) of the Act as it stood at the material time, the
amounts realised by any person as tax on sale of any goods shall,
notwithstanding anything contained in any other provision of the Act, be
deposited by him in a Government treasury within such period as may be
prescribed if the amount so realised exceeded the amount payable as tax in
respect of that sale or if no tax is payable in respect thereof. As the tax
collected by the assessees was not exigible in respect of the sales from the
purchasers, a statutory obligation arose to deposit it with the State and by
paying that tax under the assessment, the assessees must be deemed to have
complied with this requirement. But the amount of tax remained under s. 9B of
the Act with the Government of Orissa as a deposit. If with a view to prevent
the assessees who had no beneficial interest in those amounts from making a
profit out of the tax collected, the Legislature enacted that the amount so
deposited shall be claimable only by the persons who had paid the amounts to
the dealer and not by the dealer, it must be held that the restriction on the
right of the assessees to obtain refund was lawfully circumscribed in the
interest of the general public.
Counsel for the assessees contended that they
stood 555 in danger of being compelled at the instance of the purchasers to
repay the amount collected as tax even after it is deposited with or paid by
them to the State, Government, and a statutory provision which deprives them of
their right to claim refund amounts to an unreasonable restriction, because
they are under an obligation to pay the amount to purchasers but they cannot
reimburse themselves by recourse to the State which holds the amounts. But by
9B, the assessees were liable to deposit the
amount in excess of what was lawfully recoverable from the purchasers as tax'
When under the orders of assessment they paid amounts to the State,
requirements of s. 9B were complied with and the amount remained with the State
in deposit, subject to the obligation, if a demand was made within the period
prescribed, to restore the same to the persons from whom the assessees had
recovered it. We do not think that there is any reason to hold that the
assessees would be exposed to any enforceable claims at the instance of the
purchasers to refund the tax collected by them if they have deposited it with
the State in discharge of the statutory obligation incurred by them.
Appeals Nos. 273 and 274 of 1960 will
therefore be dismissed and Appeals Nos. 275 to 277 of 1960 will be allowed. As
the State succeeds relying upon a statute enacted after the judgment was
pronounced by the High Court, we direct that there shall be no order as to
costs of the appeals in this court.
Appeals Nos. 273 and 274 of 1960 dismissed.
Appeals Nos. 275 to 277 of 1960 allowed.