Case ID: 1673

Judgment:
Appeals Nos. 494 496 of 1962. Appeal from the judgment and decrees dated March 12	 1957	 of the Andhra Pradesh High Court in A.S. Nos. 566 to 568 of 1961. A.V. Viswanatha Sastri	 T.V.R. Tatachari and B.R.G.K. Achar	 for the appellants. Bhimsankaram	 Chander Kohli and E. Udayaratnam	 for respondents. November 20	 1963. The Judgment of the Court was delivered by HIDAYATULLAH	 J. This judgment will dispose of Civil Appeals Nos. 494 to 496 of 1962. The State of Andhra Pradesh which now stands substituted for the Provincial Government of Madras is the appellant. The respondent is one J.S. Basappa	 a groundnut oil merchant of Kurnool who was selling oil within the Province and also exported it to extra Provincial points. These three appeals concern salestax for the years 1944 45	 1945 46 and 1946 47. They arise out of three suits filed by Basappa against the Provincial Government of Madras now represented by the Government of Andhra Pradesh	 the details of which are given below. For the year 1944 45	 Basappa was assessed to sales tax amounting to Rs. 12	983 2 2 of which	 according to him	 a sum of Rs. 1	594 1 5 only represented sales within the Province. He claimed that the remaining sales took place outside the Province of Madras. He submitted that property in the goods remained with him till the export of the goods to an extraProvincial point and till payment of price after export. He claimed that these sales could not be included in 519 his 'turnover under the Madras General Sales tax Act	 1939 (Act No. IX of 1939) and sales tax was wrongly demanded from him. In respect of this assessment	 he filed O.S. No. 14 of 1950 (original No. 0. section 40 of 1949) in the Court of the Subordinate Judge	 Kurnool for refund of Rs. 11	389 0 9 ps. The Madras State Government in a written statement traversed 'all the allegations and stated that delivery of the goods was made in Kurnool when the goods were booked and further that the goods were despatch. ed at buyer 's risk and remained at buyer 's risk through out	 it also contended that the notice under section 80 was not proper and the suit was not in accordance with that notice and was not maintainable because the orders under the Sales tax Act were made final by section 11(4) of the Sales tax Act and because Basappa had not exhausted his other remedies under the Salestax Act. Lastly	 it contended that the suit was barred by time not having been filed within six months from 'the date of the act complained of as required by section 18 of the Sales tax Act or within one year as required by article 16 of the Indian Limitation Act. In respect of the year 1945 46	 Basappa filed O.S. No. 44 of 1949 claiming a refund of Rs. 8	356/on similar grounds	 and in respect of the year 1946 47 he filed O.S. No. 23 of 1949 for a declaration that the levy of Rs. 9	23 3 6 7 was illegal and without jurisdiction and for a permanent injunction to restrain the taking authority from collecting the tax. In this suit	 in addition to the 'defences also taken in the other suits it was contended that	 the suit was incompetent as a revision application was pending with the Board of Revenue. These suits were disposed of by the Subordinate Judge		 Kurnool by a common judgment dated February 22	 1951. The main points which were decided were: (1) whether the suits were not maintainable as (a) the civil court had no jurisdiction and (b) the assessee had not exhausted his other remedies	 (2) whether the suits were barred by time	 and ( 3) whether the sales took place outside the Province of Madras and the 520 levy of the tax in respect of some of the transactions was illegal. The Subordinate Judge held that. there was nothing in the Sales tax Act to exclude the jurisdiction of	 the civil court and that the finality spoken of by s ' 11 	of the Sales tax Act was	 a finality arising under the Sales tax Act and had	 no reference to 	 the jurisdiction of the civil court. He also held that Basappa was not required to exhaust his other remedies before moving the civil court by suit. On	 the second point	 the Subordinate Judge: held that O.S. No. 14 of 1950 and 44 of 1949 were barred by time under section 18 of the Sales tax Act or article 16 of the Limitation Act whichever might be applied. The learned Subordinate Judge held that article 62 of the Limitation Act was not 'applicable because Basappa had not pleaded in these two .suits that payment of the	 tax was made under a mistake. The Subordinate Judge		 however	 held that O.S. No. 23 of 1949 was in time. In O.S. No. 14 of 1 950 and 44 of 1949	 he recorded findings that tax amounting to Rs. 7	203 12 9 in respect of O.S. 14 of 1950 and Rs. 5	370 7 0 in respect of O.S. No. 44 of 1949 were wrongly levied		 because those amounts concerned sales which took place outside the Province of Madras. In O.S. 23 of 1949 he held that sales of the value of Rs. 79	465/ took Place outside the Province and tax in respect of them at 1 % (which was the uniform rate applicable to all the three years) was not demandable. ' A declaration to this 'effect ' was granted and an injunction was issued restraining the State Government ' from recovering Rs. 793 10 6 from Basappa. In the result. O.S. No.14 f 1950 and 44 of 1949 were dismissed ' 'with costs and O. section No. 23 'of 1949 was 'partially decreed with proportionate costs. Basappa appealed in: all the three suits against the decision	 of the Subordinate; Judge	 Kurnool. The Government of Madras objected in the appeal of Basappa from% the. decision in 0.S. No. 23 of 1949 in respect: of the decree for Rs. 793 10 6. In the High Court	 ' applications were made in	 the appeals for urging an: additional ground that the whole assess 521 ment	 was invalid because it included an illegal levy which was not severable from the legal demand. This ground 'was based upon the decision of this Court in M/s. Ram. Narain Sons Ltd. vs Assistant Commissioner of Sales Tax and others (1) This request was not opposed and permission was granted to Basappa. The High Court differed from the Subordinate Judge on the question of limitation and held that neither section 18 of the Sales tax Act nor article 16 of the Limitation Act was applicable to. 	 the suits	 which were governed by article 62 'of the Limitation Act. The High Court accordingly held that O.S. 14 of 1950 and O.S. 44 of 1949 which were dismissed as barred by time were not barred. On the ' main question	 the High Court classified all the sales into four categories which were: 1. Where the plaintiff himself was the consignor as well as the consignee	 2. Where the plaintiff himself was the consignor and the 'buyer the consignee	 3. Where the buyer was the consignor as well as the consignee	 and 4. Where a third party was shown as the consignor	 the consignee being the plaintiff. The Subordinate Judge had held that sales tax was properly demandable in respect of categories 2 and 3 but not in respect of categories 1 and 4. The second part of the decision was not assailed before the High Court. The High Court again considered categories 2 and 3 and held that sales coming under those categories were properly assessable to sales tax as the sales took place within the Province of Madras. The High Court	 however		 acting upon the decision of this court in Ram Narain 's case(1) held that the legal and the illegal levies were so mixed up that the entire demand for tax was rendered illegal and void. In the result	 the appeals filed by Basappa were allowed and the cross objection filed by the Provincial Government of Madras was dismissed. The High Court certified these cases and the present appeals have been filed. (1) ; 522 Three questions are raised by Mr. A.V. Viswanatha Sastri. They are	 (1) that the civil court had no Jurisdiction to try these suits	 (2) that the suits O.S. 14 of 1950 and 44 of 1949 were barred by time under section 18 of the Sales tax Act and (3) that the High Court was wrong in holding that the assessments were not capable of being split up and in declaring the total assessments to be void. The first two points give no trouble at all. Section 18 of the Act reads: "No suit shall be instituted against the	 Govern. ment and no suit	 prosecution or other proceeding shall be instituted against any Officer or servant of the State Government in respect of any act done or purporting to be done under this Act	 unless the suit	 prosecution or other proceeding is instituted within six months from the date of the act complained of. " This section applies to suits for damages and compensation in respect of acts under the Act. It is worded in familiar language by which 'authorities	 including Government	 are protected and indemnified in respect of bona fide acts done or purporting to be done under powers conferred by the statute. The periodof limitation prescribed in the section does not apply to the kind of suits which were filed by Basappa. This Point has no substance and was not even pressed in the High Court. Similarly	 the first point must also be decided against the State of Andhra Pradesh	 because of a recent	 decision of this court in Firm of tlluri Subhayya Chetty Sow vs The State of Andhra Pradesh(1) That case was decided under section 18A of the Madras General Sales tax Act which was inserted by section 10 of the Madras General 'Sales tax Amendment Act	 1951 which came into force on May 15	 1951. That section reads "No suit or other proceeding shall	 except as expressly 'provided in this Act	 be instituted (1) ; 523 in any Court to set aside or modify: any assessment made under this Act. " The present appeals have to be decided without the assistance of section 18A	 because the suits were filed in the Court of Subordinate Judge	 Kurnool and were decided by him before the amendment came into force . Prior to the insertion of section 18A there was no: specific provision taking away the jurisdiction of the civil court except section 11(4) by which a finality attached to orders passed in appeal. Under that section	 appeals were provided in respect of orders of assessment and there was also a provision for revision in section 12. It was provided by sub section (4) of section II that "every order passed in appeal under this section	 shall	 subject to the powers of revision conferred by section 12	 be final. '. ' While enacting section 18A the Legislature added an elaborate machinery which did not exist earlier for correcting assessments. Mr. Sastri contends that in deciding whether the civil court 's jurisdiction is barred we must take into account the provisions of section 11 and section 12	 because these provisions which provide adequate remedies " march with the construction" of section 11(4). He submits that the finality which was conferred on the appellate order subject to a revision must necessarily be a finality against determination of the same question by the civil court. It is pointed out by 	this court in Chetty 's case(1) that the exclusion of the jurisdiction of the civil court is not to be readily inferred and that even if a provision giving the orders a finality was enacted	 civil courts still have jurisdiction to interfere where fundamental	 provisions of the Act are not complied with	 or where the statutory Tribunals do not act in conformity with the fundamental principles of judicial procedure. Gajendragadkar	 J. speak ing for the court on that occasion summed up the law as follows: "In dealing with the question whether Civil Courts ' jurisdiction to entertain a suit is barred or not	 ' it is necessary to bear in mind the fact that there. is a general presumption that there (1) ; 524 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 jurisdicti on of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute.	 Referring to the remarks of Lord Thankerton in Secretary of State represented by the Collector of South Arcot vs Mask & Co.(1) 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 was observed: "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 (1) 67 I.A. 222 at 236. 525 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 was thus held that the civil court 's jurisdiction may not be taken away by making the decision of a tribunal final	 because ' the civil court 's jurisdiction to examine the order	 with reference to fundamental provisions of the statute non compliance with which would make the proceedings illegal and without jurisdiction	 still remains	 unless the statute goes further and states either expressly or by necessary implication that the civil court 's jurisdiction is completely taken away	. Applying these. tests	 it is clear that without a provision like section 18A in the Act	 the jurisdiction of the civil court would not be 'taken and at least where the action of the authorities is wholly outside the law and is not a mere error in the exercise of jurisdic tion. Mr. Sastri says that we must interpret the Act in	 the same way as if section 18A was implicit in it and that section 18A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders of 'assessment	 ;.Subject	 however	 to appeal and revision	 was a finality for the purposes of 'the Act. It did not make valid an action which was not warranted by the Act	 as for example	 the levy 	 of tax on a commodity ;which was not taxed at all or was exempt. present case	 the taxing of sales which did not take place within the State was a matter wholly. outside the jurisdiction of the taxing authorities and in respect of such illegal action. the jurisdiction of the civil	 court continued to subsist. In our judgment the suits were competent. The last question is whether the assessment as a whole must fail or only in respect of the part which was utside the ' jurisdiction of the sales tax authorities We have already reproduced the four categories into 'Which all the transactions of sale 'were classified. The High Court and the Court below. found that 526 categories 1 and 4 represented transactions of sale which could not be taxed at all by the authorities as those transactions took place outside the State. It may be mentioned that the Sales tax Act did not then contain any provision which established a nexus between the sales and the Province. That provision came later. The High Court relying upon Ram Narain 's case(" held that the assessments as a whole must fail. In Ram Narain 's case a portion of the assessment was invalid under article 286 of the Constitution and the question was whether the total assessment must fail. This Court observed: "The necessity for doing so is	 however obviated by reason of the fact that the assessment is one composite whole relating to the pre Constitution as well as the post Constitution periods and is invalid in toto. There is authority for the proposition that when an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable	 the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid in toto." This Court cited with approval a passage from Bennett & White (Calgary) Ltd. and Municipal District of Sugar City No. 5(2) where the Judicial Committee observed : "When an assessment is not for an entire sum	 but for seperate sums	 dissected and earmarked each of them to a separate assessable item	 a court can sever the items and cut out one or more along with the sum attributed to it	 while affirming the ' residue. But where the assessment consists of a single undivided sum in respect of the totality of property treated assessable and when one component (not dismissible as 'de minimis) is on any view not assessable and wrongly included	 it would seem clear that such .a procedure is barred and the assessment is (1) ; (2) at 816. 527 bad wholly. That matter is covered by authority. In Montreal Light Heat & Power Consolidated vs City of Westmount the court (see especially per Anglin C.J.) in these conditions held that an assessment Which was bad in part was infected throughout and treated it as 'invalid. Here their Lordships are of opinion	 by parity. of reasoning	; that the assessment was invalid in toto. " It is urged by Mr. Sastri that the tax here is at the uniform rate of 1 % and as all the returns and documents necessary to seprate the bad part from the good are available	 there is no need to cansel the whole assessment. He contends that these cases are rather governed by the other rule that where the assessment is for separate sums	 only that portion need be declared illegal which is void. It is necessary to explain the distinction between the two classes of cases and how they are to be distinguished. A difference in approach arises only in those cases where the assessment of many matters results in amounts of tax which though parts of the whole assessment	 stand completely separate. There the court can declare the "separate dissected and earmarked '	 items illegal and excise them from the levy. In doing so	 the court does not arrogate to itself the functions of the taxing authorities; but where the tax is a composite one and to separate the good part from the bad	 proceedings in the nature of assessment have to be undertaken	 the civil court lacks the jurisdiction. Here	 theamount of tax is a percentage of the turnover and the turnover is a mixed one and it is thus not merely a question of cutting off some items which are separate but of entering upon the function of assessment which only the authorities under the. Sales tax Act can undertake. Cases of assessment based upon gross valuation such as the case from Canada refered to by the Judicial ' Committee afford a	 parallel to a case of assessment of a composite turnover such as we have here. Just as in the Canadian case it was not possible to separate the valuation of movable properties from 528 that of immovable properties	 embraced in a gross valuation roll	 so also here	 it is not possible to separate from ' the composite 'turnover transactions which are .validly taxed	 from those which are not	 for that must pertain to the domain of tax officers and the courts have no powers within that domain. In our opinion	 the High Court was right in declaring the total assessment: to be affected by the portion which was illegal and void. In the result	 these appeals fail and are dismissed with costs	 one set only.

Summary:
The respondent	 a groundnut oil merchant filed three suits alleging that the property in some goods remained with him till the exept of the goods to an extra provincial point and till the payment of price after export	 and sales tax was not demandable on these sales under the Madras General Sales Tax Act	 1933. The appellant contended that the sales were not inter provincial sales	 the suits were not maintainable in a civil court	 the respondent had not exhausted his ' alternative remedies and the suits were barred by limitation under section 18 of the Act. Before the High Court an additional ground based upon the decision in M/s. Ram Narain Sons Ltd. vs Assistant Commissioner of Sales Tax	 ; was raised that the whole assessment was invalid because it included an illegal levy which	 was not severable from the legal demand. 	 Held: (i) SectioN 18 of the Sales Tax Act applies to suits for damages and compensation in respect of acts done under the Act. 'Me period of limitation prescribed in that section does not apply to the kind of suits which were filed by the respondent. (ii) The jurisdiction of civil courts is not necessarily taken away when the decision of a tribunal is made	 final	 because the civil court 's jurisdiction to examine the order with reference to fundamental provisions of the statute	 non compliance with which would make the proceedings illegal and without jurisdiction	 still remains unless the statute goes further and states either expressly or by necessary implications that the civil court 's jurisdiction is completely taken away. (iii) Applying the above principle the jurisdiction of the civil court was not taken away as the taxing of 'outside ' sales was a matter wholly outside the jurisdiction of the taxing authorities. Firm of Illuri Subhayya Chetty & Sons vs State of Andhra Pradesh	 ; and Secretary of State represented by the Collector of South Arcot vs Mask & Co. 67 I.A. 222. 518 (iv) The entire assessment was void because it was not possible in the present case to separate from the composite turnover transaction which were validly taxed from those which were not	 in as much as this pertains to the domain of tax officers and the courts have no powers within that domain. M/s. Ram Narain Sons Ltd. vs Assistant Commissioner of Sales Tax	 ; and Bennett & White	 (Calgary) Ltd. vs Municipal District of Sugar City