Judgement

N. H. BHAGWATI, J. : The facts leading up to this appeal lie within a narrow compass.

2. The respondent is a firm registered under the Indian Partnership Act dealing in Bullion Gold and Silver ornaments and forward contracts in Silver Bullion at Banaras in the State of Uttar Pradesh. For the assessement years l948-49, 1949-50 and 1950-51 the Sales Tax Officer, Banaras, the appellant No. 1 herein assessed the respondent to U. P. Sales Tax on its forward transactions in Silver Bullion. The respondent had deposited the sums of Rs. 150-12-0, Rs. 470-0-0 and Rs. 7410-0 for the said three years which sums were appropriated towards the payment of the sales tax liability at the firm under the respective assessment orders passed on May 31, 1949, October 30, 1950, and August 22, 1951.

3. The levy of sales tax on forward transactions was held to be ultra vires, by the High Court of Allahabad by its judgment delivered on February 27, 1952, in Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur, 1952 All LJ 332: (AIR 1952 All 764) and the respondent by its letter dated July 8, 1952, asked for a refund of the amounts of sales tax paid as aforesaid. The appellant No. 2, the Commissioner of Sales Tax, U. P., Lucknow, however, by his letter dated July 19, 1952 refused to refund the same.

4. The respondent thereafter filed in the High Court of Allahabad the Civil Misc. Writ Petition No. 355 of 1952 under Art. 226 of the Constitution and asked for a writ of certiorari for quashing the aforesaid three assessment order and a writ of mandamus requiring the appellants to refund the aforesaid amounts aggregating to Rs. 1,365-12-0. The judgment of the Allahabad High Court was confirmed by this Court on May 3, 1954, in Sales Tax Officer v. Budh Prakash Jai Prakash 1955-1 SCR 243 and the writ petition aforesaid was heard by Chaturvedi J. The learned Judge by an order dated November 30, 1954, quashed the said assessment orders in so far as they purported to assess the respondent in respect of forward contracts in silver and also issued a writ of mandamus directing the appellants to refund the amounts paid by the respondent.

5. The appellants filed a Special Appeal No. 18 of 1955: in the High Court of Allahabad against that order of the learned Judge. A Division Bench of the said High Court heard the said appeal on December 1, 1955. It was argued by the Advocate-General on behalf of the appellants that the amounts in dispute were paid by the respondent under a mistake of law and were therefore irrecoverable. The Advocate-General also stated categorically that in that appeal he did not contend that the respondent ought to have proceeded for the recovery of the amount claimed otherwise than by way of a petition under Art. 226 of the Constitution. The High Court came to the conclusion that S. 72 of the Indian Contract Act applied to the present case and the State Government must refund the moneys unlawfully received by it from the respondent on account of Sales Tax. It accordingly dismissed the appeal with costs.

6. The appellants then applied for a certificate under Art. 133(1)(b) of the Constitution which certificate was granted by the High Court on July 30, 1936, on the Advocate-General s giving to the Court an undertaking that the State will, in any event, pay the costs, charges and expenses incurred by or on behalf of the respondent as taxed by this Court. This appeal has accordingly come up for nearing and final disposal before us at the instance of the Sales Tax Officer, Banaras, appellant No. 1, the Commissioner Sales Tax, U. P., Lucknow, appellant No. 2 and the State of U. P., appellant No. 3.

7. The question that arises for our determination in this appeal is whether S. 72 of the Indian Contract Act applies to the facts of the present case.

8. The learned Additional Solicitor-General appearing for the appellants tried to urge before us that the procedure laid down in the U. P. Sales Tax Act by way of appeal and/or revision against the assessmen