1968 (6) TMI 62

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....sted on the view that the relevant part of section 5 of the Mysore Sales Tax Act, 1957, did not charge that part of the turnover with sales tax. But, by the Mysore Sales Tax (Amendment) Act, 1963 (Mysore Act 9 of 1964) section 5(5A) was amended retrospectively, and in consequence, the turnover which had been included by the Commercial Tax Officer in the order of assessment stood properly included. Section 34 of the amending Act validated the assessments made under the principal Act notwithstanding any judgment, decree or order of any court or tribunal. So, the assessment made by the Commercial Tax Officer thus stood retrospectively validated. But, meanwhile on the strength of the order of this Court, in W.P. No 1235 of 1962, the petit....

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....rincipal Act. The refunds to which section 34 refers are refunds authorised by the Act such as those which are enumerated in rule 39. These are refunds which are made under the principal Act. But, if a refund is made because this Court directed a refund while it quashed some part of the order of assessment, it is not a refund made under the Act, but is one made in obedience to the direction of the Court. If, as explained by this Court, the assessment itself was not authorised by the Act, the collection of the tax made in enforcement of that order of assessment is not a collection made under the Act nor is its refund made under the orders of the Court, a refund made under the Act. So, the argument that there was legislative validation of the....

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....s necessary only if without such rectification the amount refunded could not have been demanded as tax and it became necessary for the Commercial Tax Officer to clothe himself with the authority to, demand it, to make a rectification of his own assessment. But, such rectification was obviously unnecessary in the present case. The decision of the Supreme Court in M.K. Venkatachalam, Incometax Officer, and Another v. Bombay Dyeing & Mfg. Co., Ltd.[1958] 34 I.T.R. 143. and of the High Court of Madras in Ceylon Thowfeck Hotel v. The State of Madras[1961] 12 S.T.C. 238. have no resemblance to the case before us. In the former case, the Income-tax Officer made a refund of interest on the advance tax paid by the assessee on the basis of statuto....