LexMESSRS BURMAH CONSTRUCTION CO. versus THE STATE OF ORISSA AND ORS.
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-·· --~---~-·---------:----::---------,------. 19fi1 242' SUP.REllIE COURT REPORTS·· (1962] SUPP.•) .~IESSRS; BURl\IAH. CONSTRUCTION'.r CO.-, '· ,Octolertlf. •-- ... , . .,f .. 'V. ~-:·i--:· -: ,., .. --. .!• '-, .... -, .. /, ... ,. . , · · ;;.,._THE.,S'J.'ATE OF.ORISSA,AND ORS.,. · - , .. (s:r. SrnHA/CJJ!,J.1 r:;. :KArur:lllf.'RrI>AYATmurr,'· · ·· · <J.' C. SHArr·and J·::R, l\IunHoLKAri, JJ.) ·.· ' · ------· ~' _;i ;·/:_~_;· __ :_ _. - .:; '-~ ~'>: -. . .. --j t~ ~ . j -~ - r:c' Sale& •Tax-Refund>i>f-Limitation proi·idfd by ;<;tatute- Val~dit!i--'-IJ applies to v;rit petition~()ri'8a St1lu Tax Act; 1947:: (OrissaXIVo/1947),s.14 .. ,.,· ;•,, .· .... " ,. , .. : ... • .. . . ..... .. , ' - ·' ,. ; .,, ·.' ,_ -- . ·- . ·-' ~-\The appellant Who _eiecuiCd.'"'·orks:coniracts waS assessed_:_ to. sales. tax· for quarters .Cending June 30; 1949;rto March 31, . 1954, ,and _,paid-,the tax.r;. On August .9; 1954,, the appellant . filed a. writ petition. before· the High r,Court, for; a declaration • that th,e .i:irovi_sfon~ o_fth.~ Orisoa Sales,Tax Act, 1947! permitt;. ing leyY of sales tax: on· works contracts ~·ere ultra i·ires;· for a ~ decta.Fatiori ·· that the ·assessments were illegal aild_ for· a· refurid of the amount paid as tax. · The High Court declared that the assessments were not in ac.cordance with the law and directed.:, refund of the •ta.-..:; pald, if-, recovery. thereof. was not barred • uni:Iers. 14 oftlie Act on the date of the filing.of the writ peti-.; tiori; ·· Section 14 provided that nq claim for a refund shall be · allowed'by the Collector unless it was made within· 24 months · from the date of the ·assessment order or· within· 12 . months of · the order pa!!!sed on· appeal, revision, review O! reference_. .The appellant contended thats, 14. was ultra i-ires and that the bar . of limitation ins. 14 was not' applicable to the· Writ petition ' ·before the High Court for refund of tax ille'gallnecovered;'' ... · _:-, - : . ' -·.-.: ' : ~ :_ __ -_ ; . ' ,_ .- ! t ,. _, - . ; ; . r : - . , HelrI, that provisions: of s. 14 of -the. Orisla~ Sales·Tax·· Act, 1947, were not ultra .-ires the State Legislature. The,· power ,to legislate in respect of refund of tax improperly or illegally collected, and imposition of restrictions on the exercise of the right to claim refund which was an ancillary or sub. sidiary ma tier was not beyond the competence of ·the legislature. · State of Orissa v. The Orient Paper .Mills Ltd., A. I. R. (1961) s:c. 1438, relied on. · Held, futher, that the bar of limitation in s. 14 of the Act was applicable to the case. The proceedings before the High Com! were substantially to compel the Collector to carry out his statutory obligations under s. 14, and it could only be allowed subject to the restrictions imposed by the·statute. It was not open to th,e appellant to rely upon the statutory right and to ignore the restrictions subject to which the right was made enforceable. · (1) S.C.R. SUPREME COURT REPORTS 24:3 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 494 of 1960. Appeal by special leave from the judgment and order dated April 21, 1958 of the Orissa High Court in O.J.C. No. 107 of 1954. G. 0. Mathur, for the appellants. H. N. Sanyal, Additional Solicitor-General of India, K. N. Rajagopal Sastri, G. K. Mishra and T. M. Sen, for t·he respondents. 1961. October 26. The Judgment of the Court was delivered by SHAH, J. -Messrs. Buarmah Construction Comp- any-a firm carrying on business as building and works contractors-executed several contracts in the State of Orissa for construction of buildings, roads, bridges etc. Messrs. Burmah Construction Company, who are hereinafter referred to as the appellants, were registered as dealer in Orissa under. the Orissa Sales Tax Act, 1947 from the quarters ending June 30, 1949. The Sales Tax Officers treating the transfer of the materials used in the construction of the buildings, roads and bl'idges, as sale of goods, assessed the appellants to tax under t.he Orissa Sales Tsx Act. The t11-x so assessed under the diverse orders of assessment was paid from time to time. For the quarters · ending June 30, 1949, to March 31, 1954, the appellant paid Rs. l,17,869-8-0as tax andRs .. 2,917-11-0aspenalty. The following table sets out the tax and penalty paid to the Sales Tax Authorities for the twenty quarters:- Srl. Circle No.
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