Cotmac Private Ltd. Vs. Commercial Tax Officer, 1st Circle, Hubli and anr.

Cotmac Private Ltd. vs Commercial Tax Officer, 1st Circle, Hubli and anr.

Type Court Judgment Court Karnataka Decided Feb 27, 1967

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Citation: sooperkanoon.com/373370
Court: Karnataka High Court
Judge: A. Narayana Pai and ;B. Venkataswami, JJ.
Decided On: Feb 27, 1967
Case Number: Writ Petition No. 269 of 1967
Subject: Sales Tax

Case Summary

AI-generated summary - not the official court judgment text.

- Section 26: [Ram Mohan Reddy,J] Custody of child Rejection of application made under Order 7, Rule 11 (A) C.P.C., - Order passed by Family Court - Decree of divorce by mutual consent and Childs custody in terms of the compromise - Difficulties in implementation of visiting rights and custody of the child -Sep...

Key legal issue: Sales Tax
Acts & sections: Mysore Sales Tax Act; Central Sales Tax Act; Mysore Sales Tax Rules, 1957 - Rule 20

Parties & Advocates

Appellant / Petitioner

Cotmac Private Ltd.

Advocate P. Venkataramana, Adv. for G.S. Ullal

Respondent

Commercial Tax Officer, 1st Circle, Hubli and anr.

Advocate G.S. Shantaraju, Adv. for the High Court Special Government Pleader

Legal References

Acts: Mysore Sales Tax Act; Central Sales Tax Act; Mysore Sales Tax Rules, 1957 - Rule 20
Reported In: (1967)1MysLJ440; [1967]20STC20(Kar)

Excerpt

- section 26: [ram mohan reddy,j] custody of child rejection of application made under order 7, rule 11 (a) c.p.c., - order passed by family court - decree of divorce by mutual consent and childs custody in terms of the compromise - difficulties in implementation of visiting rights and custody of the child -separate application by the parties under section 26 of the hindu marriage act, 1955 for custody of the child - petitioners application for custody of the female child subject to visitation rights to the respondent-ex-husband was allowed and confirmed by the apex court with certain modifications in the year 2004.- application filed by the respondent under section 26 of the act for permanent and exclusive custody of the minor child, in the year 2006. petitioners objections - at the stage of evidence of respondent, petitioners application under order vii rule 11(a) c.p.c. to reject the application filed by the respondent under section 26 held, there can be no dispute that all orders relating to the custody of minor children from their very nature must be considered to be temporary orders made in the existing circumstance and that with changed conditions and circumstances, including passage of time, the court is entitled to vary such orders, if such variation is considered to be in the paramount interest of the welfare of the minor. indisputably, the object of order 7, rule 11 is to keep out of courts irresponsible law suits, a tool in the hands of the courts. the question to be decided while dealing with an application filed under order 7, rule 11(a) cpc, is whether a real cause of action is set out in the plaint or something purely illusory has been stated. if on a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the court should exercise the power under order 7, rule 11(a). if clever drafting has created the illusion of a cause of action, it must be nipped in the.....ordernarayana pai, j.1. the facts which are not disputed and which are sufficient for the disposal of the only prayer in this writ petition are the following :- 2. the petitioner is an assessee to sales tax both under the mysore sales tax act and under the central sales tax act. for the year ended 31st march, 1962, the commercial tax officer, 1st circle, hubli, the 1st respondent herein, made an order of assessment under the central sales tax act on 31st march, 1966, and also an order of the same date under the mysore sales tax act. in the former he held that a sum of rs. 20,936.02 was refundable to the petitioner. nevertheless he did not direct the payment or refund thereof to the petitioner; instead he made a direction in the second order that the said sum will be adjusted towards certain amounts held to be due by the petitioner for and on account of the sales tax payable under the mysore sales tax act. 3. the petitioner complains that the adjustment so proposed by the 1st respondent is not in accordance with law and that he having declined to give effect to his own order of refund, this court should issue a mandamus directing him to make the refund. 4. the only answer made on behalf of the state is the power under the proviso to rule 20 of the mysore sales tax rules, 1957, which reads : 'provided that the excess tax refundable to the dealer may be adjusted towards other amount, if any, due by him under the act'. now this rule is a rule applicable primarily to assessments under the state act. secondly, both the excess tax refundable as well as the amount against which it has to be adjusted are amounts either paid or due under the state act. the sum of rs. 20,936.02 which is the subject of this writ petition is not paid as tax under the mysore act at all and hence not an amount which can be said to have become refundable under rule 20 as an excess of deposit over the tax liability calculated under the state act. further, even if the rule is regarded as available.....

Full Judgment

ORDER

Narayana Pai, J.

1. The facts which are not disputed and which are sufficient for the disposal of the only prayer in this writ petition are the following :-

2. The petitioner is an assessee to sales tax both under the Mysore Sales Tax Act and under the Central Sales Tax Act. For the year ended 31st March, 1962, the Commercial Tax Officer, 1st Circle, Hubli, the 1st respondent herein, made an order of assessment under the Central Sales Tax Act on 31st March, 1966, and also an order of the same date under the Mysore Sales Tax Act. In the former he held that a sum of Rs. 20,936.02 was refundable to the petitioner. Nevertheless he did not direct the payment or refund thereof to the petitioner; instead he made a direction in the second order that the said sum will be adjusted towards certain amounts held to be due by the petitioner for and on account of the sales tax payable under the Mysore Sales Tax Act.

3. The petitioner complains that the adjustment so proposed by the 1st respondent is not in accordance with law and that he having declined to give effect to his own order of refund, this Court should issue a mandamus directing him to make the refund.

4. The only answer made on behalf of the State is the power under the proviso to rule 20 of the Mysore Sales Tax Rules, 1957, which reads :

'Provided that the excess tax refundable to the dealer may be adjusted towards other amount, if any, due by him under the Act'.

Now this rule is a rule applicable primarily to assessments under the State Act. Secondly, both the excess tax refundable as well as the amount against which it has to be adjusted are amounts either paid or due under the State Act. The sum of Rs. 20,936.02 which is the subject of this writ petition is not paid as tax under the Mysore Act at all and hence not an amount which can be said to have become refundable under rule 20 as an excess of deposit over the tax liability calculated under the State Act. Further, even if the Rule is regarded as available as part of the machinery for the purposes of levy and collection of tax under the Central Act, the tax refundable as well as the tax against which the said refundable tax is to be or may be adjusted should both be Central tax or tax under the Central Act. It is not possible, in our opinion, to adjust the tax refundable under one Act against tax due under another Act. The fact that even the tax levied under the Central Act is ultimately intended for State purposes and may therefore get directly credited into the Consolidated Fund of the State, would make no difference, because the two taxes are distinct and different, and levied under two different statutes, one of the State Legislature and the other of Parliament.

5. We, therefore, make an order directing that Rs. 20,936.02 found as excess paid in the order of the 1st respondent made under the Central Sales Tax Act be refunded to the petitioner and further that the amount of Mysore sales tax determined as payable under the order of the 1st respondent dated 31st March, 1966, for the period 1st April, 1961 to 31st March, 1962, be re-calculated accordingly and a fresh demand issued to him.

6. Ordered accordingly.

Same Parties Cotmac Private Ltd. vs Commercial Tax Officer, 1st Circle, Hu... Same Subject Sales Tax Same Judge A. Narayana Pai and ;B. Venkataswami, JJ. Acts & Sections Mysore Sales Tax Act; Central Sales Tax Act; Mysore Sales Tax...

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