TaxTMI 
TaxTMI 
1998 (2) TMI 20
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....g to the plaintiff, he was allotted five acres 23 cents of nanja lands in a registered partition in his family on March 23, 1976. Thereafter, he has also purchased some more properties and the total holdings are only six acres four cents. It is said that prior to the partition, he was assessed to agricultural income-tax since the family was holding more than seven and a half standard acres. It is his case that subsequent to the partition deed, his holdings were reduced to five acres 23 cents and, therefore, he is not liable to be assessed under the Tamil Nadu Agricultural Income Tax Act. 1955. Stating these facts, he filed a petition before the second defendant, the Agricultural Income Tax Officer, Mayuram. The second defendant issued a com....
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....that when the partition deed was brought to the notice of the authorities, they should have taken into consideration the same while passing the order of assessment. Any assessment without taking into consideration the relevant material, according to the lower appellate court, was illegal and, therefore, there is no bar for entertaining the suit. Accordingly, the appeal was allowed, and the suit was decreed, and a direction was also given to the defendants to refund the amount collected. It is against the judgment of the appellate court, the second appeal has been filed. The following substantial question of law was formulated for consideration in this second appeal : "Whether the civil court has jurisdiction in view of section 62 of t....
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....into consideration the nature of the statute the jurisdiction of the civil court will have to be considered. I only rely on two decisions of the Supreme Court for the said purpose. In one of the early decisions of the Supreme Court reported in Kamtala Mills v. State of Bombay (1965) 57 ITR 643; AIR 1965 SC 1942, which is a case under the Bombay Sales Tax Act. Their Lordships considered as to what is the scope of assessment made under section 20 of that Act and the rules framed thereunder, and whether a suit to set aside the assessment is maintainable, while considering the same, in paragraph 32 of the judgment it was held thus : "There is one more aspect of the matter which must be considered before we finally determine the question a....
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....; 74 Ind. App. 50 ; AIR 1947 PC 78, and that is the test which is usually applied by all civil courts.". Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, the above decision was followed by a In Constitution Bench consisting of nine eminent judges. In that case, the question that arose for consideration was, whether a writ petition or a suit is maintainable for refund of excise or customs duty paid by mistake, and how far the jurisdiction of the civil court could be entertained. The majority of the judges took the view that a civil suit is not maintainable. In paragraph 23 of the judgment (at page 577), their Lordships considered this question and held thus (page 493 of 111 STC) : "It is necessary to emphasise that the excl....
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.... the assessment has been made under that Act. The assessment is challenged only on the ground that the authorities have not taken into consideration the partition deed which was brought to its notice. It is not a case where the assessment was not made under that Act, but a relevant factor was not taken into consideration. If that be so, it cannot be challenged in a suit, and it can be challenged only in appeal or under the provisions contemplated under the Act. The plaintiff has to exhaust his remedy only by taking proceedings under the Act and not on the basis of principles. It may also be noted that the plaintiff has not applied for refund as provided in rule 26 of the Act. After having paid the amount, he challenged the assessment. If, a....