Judgement

SUBBA RAO, J.: This appeal by certificate raises the question whether a suit for the refund of sales-tax assessed under a provision of the Madras General Sales Tax Act, 1939 (Act IX of 1939) declared to be ultra vires the powers of the State Legislature would lie.

2. The appellants are a private company incorporated under the Indian Companies Act. They carry on the business of building contractors. During the years 1948-49 to 1952-53 they were assessed to sales-tax by the State of Madras on the basis that the contracts executed by them were "works contracts". On April 5, 1954, the High Court of Judicature at Madras held in Gannon Dunkerely and Co. (Madras) Ltd. v. The State of Madras (1954) 5 STC 216 that the relevant provision of the Madras General Sales Tax Act empowering the State of Madras to assess indivisible building contracts to sales-tax was ultra vires the powers of the State Legislature. On July 5, 1954, the appellants issued a notice to the State of Madras under S. 80 of the Code of Civil Procedure claiming the refund of the amounts collected from them. As the demand was not complied with, on March 23, 1955, they fled O. S. No. 2272 of 1955 in the City Civil Cou