Refund of unlawful tax only requires proof of the exact excess where lawful and illegal levies are separable.

The court held that levy on transactions up to 26 January 1950 was valid, while levy on later transactions was illegal, so the assessee could recover only the excess attributable to the unlawful component. It rejected the argument that a composite assessment had to be set aside in full, explaining that a refund suit concerns the amount actually paid under mistake or collected by coercion, not annulment of the assessment order itself. Where lawful and unlawful components are separable and the excess can be precisely identified, the plaintiff must prove the exact recoverable amount. The assessee failed to establish entitlement to refund of the whole sum, including payments made before assessment and in light of limitation.

---

---

Issues: Whether the assessee was entitled to refund of the entire tax collected under an assessment order which covered both valid and invalid levies, and whether the court could require proof of the exact excess amount paid or collected.

Analysis: The levy on transactions up to 26 January 1950 was held valid, while the levy on transactions thereafter was illegal. The contention that the entire assessment must be set aside because it was composite was rejected. In a suit for refund, the court is not called upon to annul the assessment order as such; it must determine the amount actually paid under mistake or collected by coercion. Where the lawful and unlawful components are separable and the excess can be ascertained with precision, the plaintiff must prove the exact amount recoverable. The plaintiff had not shown entitlement to refund of the whole sum, particularly in respect of payments made before the assessment order and in view of the limitation issue.

Conclusion: The assessee was entitled only to refund of the excess attributable to the illegal levy, not to refund of the entire amount collected.

---