Appeal No 315 of 1962
Appeal by special leave from the judgment and order dated November 161960 of the Andhra Pradesh High Court in AS No 397 of 1957
A Ranganadham Chetty A Vedavalli and A V Rangam for the appellant
DNarasaraju Advocate General for the State of Andhra Pradesh TVR Tatachari and PD Xenon for the respondent
January 25
The judgment of the Court was delivered by GAJENDRAGADKAR J
The short question which arises in this appeal is whether the suit instituted by the appellant Firm of Illury Subbayya Chetty  Sons in the court of the Subordinate judge at Kurnool seeking to recover Rs 8349 from the respondent the State of Andhra Pradesh on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act 1939 Mad IX of 1939 hereinafter called the Act for the years 1952 54 is competent or not  and this question has to be determined in the light of the scope and effect of section 18 A of the Act
756 The appellant is a firm of merchants carrying on commission agency and other business at Kurnool and as such it purchases and sells ground nuts and other goods on behalf of principles for commission
For the year 1952 53 the Sales tax authorities included in the appellant s taxable turnover an amount of Rs 3454881210 representing groundnut sales and collected the tax on the total turnover from it in September 1953 when the amount of the said tax was determined and duly adjusted
The said turnover of Rs 3454881210 in fact represented sales of groundnuts and not purchases and tax was recovered from the appellant on the said amount illegally inasmuch as it is only on purchase of groundnuts that the tax is leviable
As a result of this illegal levy the  appellant had to pay Rs 539843 for the said year
Similarly for the subsequent year 1953 1954 the appellant had to pay an illegal tax of Rs 1159119
In its plaint the appellant claimed to recover this amount together with interest  12 per annum and that is how the claim was valued at Rs 8349 
This claim was resisted by the respondent on two grounds
It was urged that the suit was incomepetent having regard to the provisions of section 18 A of the Act and on the merits it was alleged that the transactions in regard to groundnuts on which s lestax was levied and recovered from the appellant were transactions of purchase and not of sale
In this connection the respondent referred to the fact that the appellant itself had included the transaction in question in the return submitted by it in form A and that it was making payments tentatively every month to be adjusted after the final assessment was made at the end of the year
Accordingly the final adjustment was made in September and the total amount due from the appellant duly recovered
Thus the appellant having voluntarily made the return and paid the taxes it was not open to him to 757 contend that the transactions in regard to groundnuts were not taxable under the Act
Besides the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial taxes or to the Sales Tax Appellate Tribunal  and so it had not availed itself of remedies provided by the Act
On these pleadings the trial Court framed three principal issues
The first issue was whether the suit was barred by section 18 A of the Act the second was whether there had been excess collection of sales tax for the two years in question and if so how much  And the third issue was whether the appellant was estopped from questioning the validity of the assessment  According to the trial court the respondent had failed to prove its pleas against the apppellant s claim and so it recorded findings in favour of the appellant in all the three issues
In the result a decree followed in favour of the appellant for the recovery of Rs 6558 with interest 6 per annum from November 12 1955 till the date of payment
This decree was challenged by the respondent by preferring an appeal before the High Court of Andhra Pradesh
It appeared that the decision of the said High Court in the case of State of Andhra Pradesh vs Shri Krishna Cocoanut Co 1 was in favour of the view taken by the trial Court  but the respondent urged before the High Court that the said decision was erroneous in law and require reconsideration
That is why the respondent s appeal was placed before a Full Bench of the High Court
The Pull Bench has upheld the contentions raised by the respondent
It has held that in view of the provisions of section 18 A of the Act the suit is incompetent
Alternatively it has found that on the merits the claim made by the appellant was not justified
The result of these findings was that the respondent s appeal was allowed and the appellant s suit was dismissed 1 1960 1 Andhra WR279 758 with costs
The appellant had filed cross objections claiming additional interest on the decretal amount but since its suit was held to be incompetent by the High Court its cross objections failed and were dismissed with costs
it is against this decree that the appellant has come to this Court by special leave
Mr Ranganathan Chetty for the appellant contends that the High Court was in error in coming to the conclusion that the appellant s suit was incompetent because he argues that the High Court has misjudgedthe effect of the provisions of section 18 A In dealing With the question wether civil courts jurisdiction to entertain suit is barred or not it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary
The exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect or leads to a necessary and inevitable implication of that nature The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the  civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute
It is thereforenecessary to enquire whether s18 Aexpressly or by necessary implication excludes the jurisdiction of the civil court to entertain a suit like the present
Section 18 A provides that no suit or other Proceeding shall except as expressly provided in this Act
be instituted in any Court to set aside or modify any assessment made under this Act
It is common ground that there is no express provision made in the Act under which the present 759 suit can be said to have been filed and so it falls under the prohibition contained in this section
The prohibition is express and unambiguous and there can be no doubt on a fair construction of the section that a suit cannot be entertained by a civil court if by instituting the suit the plaintiff wants to set a side or modify any assessment made under this Act
There is therefore no difficulty in holding that this section excludes the jurisdiction of the civil courts in respect of the suits covered by it
It is however urged by Mr Chetty that if an order of assessment has been made illegally by the appropriate authority purporting to exercise its powers under the Act such an assessment cannot be said to be an assessment made under this Act
He contends that the words used are any assessment made under this Act and the section does not cover cases of assessment which are purported to have been made under this Act
In support of this argument he has referred us to the provisions of section 17 1 and section 18 where any act done or purporting to be done under this Act is referred to
It would however be noticed that having regard to the subject matter of the provisions contained in sections 17 1 and 18 it was obviously necessary to refer not only to acts done but also to acts purporting to be done under this Act
Section 17 1 is intended to bar certain proceedings and section 18 is intended to afford an indemnity and that is the reason why the legislature had to adopt the usual formula by referring to acts done or porting to be done
It was wholly unnecessary purl to refer to cases of assessment purporting to have been made under this Act while enacting section 18 A because all assessments made under this Act would attract the provisions of section 18 A and that is all that the legislature intends section 18 A to cover
The expression  any assessment made under this Act is in our opinion wide enough to coverall 760 assessments made by the appropriate authorities under this Act whether the said assessments are correct or not
It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this Act an assessing officer has made an order of assessment that clearly falls within the scope of s18 A The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act
Whether or not an assessment has been made under this Act will not depend on the correctness or the accuracy of the order passed by the assessing authority
In determining the applicability of s18 A the only question to consider is Is the assessment sought to be set aside or modified by the suit instituted an assessment made under this Act or not It would be extremely anomalous to hold that it is only an accurate and correct order of assessment which falls under s18 A
Therefore it seems to us that the orders of assessment challenged by the appellant in its suit fall under s18 A
In this connection it is necessary to emphasise that while providing for a bar to suits in ordinary civil courts in respect of matters covered by s18 A the legislature has taken the precaution of safeguarding the citizens  rights by providing for adequate alternative remedies
Section 11 of the Act provides for appeals to such authority as may be prescribed section 12 confers revisional jurisdiction on the authorities specified by it s12 A allows an appeal to the appellate Tribunal s12 B provides for a provision by the High Court under the cases specified in it s12 C provides for an appeal to the
High Court and section I 2 D lays down that petitions applications and appeals to High Court should be heard by a Bench of not 761 less than two judges
The matter can even be brought to this Court by way of a petition under article 130 of the Constitution
It would thus be seen that and dealer who is aggrieved by an order of assessment passed in respect of his transactions can avail him self of the remedies provided in that behalf by these sections of the Act
It is in the light of these elaborated alternative remedies provided by the Act that the scope and effect of s18 A must be judged
Thus considered there can be no doubt that where and order of assessment has been made by an appropriate authority the provisions of this Act any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or the revisional forum prescribed by the relevant provisions of the Act
A suit instituted for that purpose would be barred under section 18 A
The facts alleged by the appellant in this case are somewhat unusual
The appellant itself made voluntarly returns under the relevant provisions of the Act and included the groundnut transactions as taxable transactions
It was never alleged by the appellant that the said transactions were transactions of sale and as such not liable to be taxed under the Act
It is true that under s5A2 groundnut is made liable to tax under s31 only at the point of the first purchase effected in the State by a dealer who is not exempt from taxation under section 33 but at the rate of 2 on his turnover
When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time it treated the groundnut transactions as taxable under s5A2
In other words the appellant itself having conceded the taxable character of the transactions in question no occasion arose for the taxing authority to consider whether the said transactions could be taxed or not and even after the impugned orders of assessment were made the appellant did not choose to file an appeal and urge 762 before the appellate authority that the transactions were sale transactions and as such were outside the purview of s5A2
If the appellant had urged that the said transactions were outside the purview of the Act and the taxing authority in the first instance had rejected that contention there would be no doubt that the decision of the taxing authority would be final subject of course to the appeals and revisions provided for by the Act
The position of the appellant cannot be any better because it did not raise any such contention in the assessment proceedings under the Act
If the order made by the taxing authority under the relevant provisions of the Act in a case where the taxable character of the transaction is disputed is final and cannot be challenged in a civil court by a separate suit the position would be just the same where the taxable character of the transaction is not even disputed by the dealer who accepts the order for the purpose of the Act and then institutes a suit to set it aside or to modify it
The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions
We may in this connection refer to two decisions of the Privy Council
In Secretary of State vs Mask
 Coy 1 the Privy Council was dealing with the effect of the provisions contained in section 188 of the Sea Customs Act VIII of 1878
The relevant portion of the said section provides that every order passed in appeal under this section shall subject to the power of revision conferred by section 191 be final
Dealing with the question about the effect of this provisions the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied
Lord Thankerton who delivered the opinion of the Board however proceeded to add that 1 1940 67 IA 222236 763 it is also well settled that that even if jurisdiction is so excluded the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure
 It is necessary to add that these observations though made in somewhat wide terms do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such it can be claimed that the provisions of the said statute have not been complied with
Non compliance with the provisions of the statute to which reference is made by the Privy Council must we think be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction
Similarly if an appropriate authority has acted in violation of the fundamental principles of judicial procedure that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question
It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute
In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits the decision of the assessing authority was wrong cannot be the subject matter of a suit because section 18 A clearly bars such a claim in the civil courts
The next decision to which reference may be made was pronounced by the Privy Council in the 764 case of Releigh Investment Coy
Ltd vs GovernorGeneral in Council 1
In that case the effect of section 67 of the Indian Income tax Act fell to be considered
The said section inter alia provides that no suit shall be brought in any civil court to set aside or modify any assessment made under this Act
It would be noticed that the words used in this section are exactly similar to the words used in section 18 A with which we are concerned
In determining the effect of section 67 the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee effectively to raise in courts the question whether a particular provision of the Income tax Act bearing on the assessment made is or is not ultra vires
The presence of such machinery observed the judgment though by no means conclusive marches with a construction of the section which denies an alternative jurisdiction to enquire into the same subject matter
It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income tax Act and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under section 66 1 of the Act  It is not necessary for us to consider whether this assum ption is well founded or not
But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal
The clause assessment made under this Ace  which occurs in section 18 A also occurs in section 67 with 11947 74 IA 50 68 765 which the privy Council was concerned and in construing the said clause the Privy Council observed that the phrase made under this Act describes the provenance of the assessment  it does not relate to its accuracy in point of law
The use of the machinery provided by the Act not the result of that use is the test  These two Privy Council s decisions support the conclusion that having regard to the scheme of the Act section 18 A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present
In the result we must hold that the view taken by the High Court is right and so the appeal fails and is dismissed
There would be no order as to Appeal dismissed


Summary:
The appellant filed a suit against the respondent for a decree for Rs 8339 on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act 1939 for the years 1952 54
The respondent 753 resisted the claim on the ground that the suit was incompetent under section I 8 A of the Act
On the merits it was contended that the transactions in regard to groundnuts on which sales tax was levied and recovered from the appellant were transactions of purchase and not of sale and it was urged that the appellant having voluntarily made the return and paid the taxes it was not open to it to contend that the transactions were not taxable under the Act
Besides it was argued that the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial Taxes or to the Sales Tax Appellate Tribunal against the assessments and bence the suit was not maintainable
The suit was decreed by the trial court but the High Court reversed that decision and dismissed the suit on the ground that in view of the provisions of section 18 A of the Act the suit was incompetent
Alternatively
it was found on merits that the claim made by the appellant was not justified
The appellant came to this Court by special leave
Held that section 18 A excludes the jurisdiction of Civil Courts to set aside or modify any assessment made under the Act
There is no express provision in the Act under which the suit can be said to have been filed and it falls under the prohibition contained in this section
The prohibition is express and unambiguous and no suit can be entertained by a Civil Court if by instituting the suit
the plaintiff wants to set aside or modify any assessment made under the Act
Where an order of assessment has been made by an appropriate authority under the provisions of the Act any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or revisional forum prescribed by the relevant provisions of the Act
A suit instituted for that purpose is barred under section 18 A When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time it treated the groundnut transactions as taxable
The appellant having conceded the taxable character of the transactions in question no occasion arose for the taxing authorities to consider whether the said transactions could be taxed or not
Even after the impugned orders of assessment were made the appellant did not choose to file an appeal and urge before the appellate authority that
the transactions were sale transactions and as such were outside the purview of section 5A 2
If an order made by a taxing authority under the relevant provisions of the Act in a case where the taxable character of a transaction is disputed is final and cannot be challenged in a civil court by a separate suit the position is just 754 the same where the taxable character of the transactions is not even disputed by the dealer who accepts the order for the purposes of the Act and then institutes a suit to set aside or modify it
The expression any assessment made under this Act is wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments arc correct or not
It is the activity of the assessing officer acting as such officer which is intended to be projected and as soon as it is shown that exercising his jurisdiction and authority under this Act an assessing officer has made an order of assessment that clearly falls within the scope of section 18 A
The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act
Whether or not an assessment has been made under this Act will not depend on the correctness or accuracy of the order passed by the assessing authority
There is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and such a remedy could be held to be barred only on very clear and unmistakable indications to the contrary
The exclusion of jurisdiction of civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to the effect or leads to a necessary and inevitable implication of that nature
The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute
There is no justification for the assumption that if a decision has been made by a taxing authority under the provisions of a taxing statute its validity can be challenged by a suit on the ground that it is incorrect on merits and as such it can be claimed that the provisions of the said statute have not been complied with
Non compliance with the provisions of the statute must be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction
If an appropriate authority has acted in violation of the fundamental principles of judicial procedure that may also tend to make the proceedings illegal and void and that infirmily may affect the validity of the order passed by the authority in question
It is cases of this character where the 755 defect or infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute
Secretary of State vs Mask  Co 1940 67 IA 222 and Reliegh Investment Co Ltd vs Governor General in Council 1947 74 IA 50 relied on
State of Andhra Pradesh vs Sri Krishna Coconut Co 1960 1 Andhra WR 279 overruled