Judgement

SHAH, J. - For the period August 16, 1960 to March 31, 1961 the respondents were assessed to sales-tax under the Travancore-Cochin General Sales Tax Act, 1950, by the assessing authority, Moovattupuzha on a turnover of Rs. 14,04,732/7/6 which included Rs. 49,318/7/4 collected by the respondents from their constituents as tax on their sale transactions. The respondents paid the tax assessed and commenced an action in the Court of the District Judge, Parur for a decree for Rs. 7,577/9/1 claiming that the amount was in excess of tax lawfully due from them under the Act. The Court of First Instance decreed the claim for Rs. 7,477/9/1 with interest and proportionate costs, and the High Court of Kerala confirmed that decree.

2. In this appeal with special leave, on behalf of the State of Kerala the principal ground which falls to be determined is whether the jurisdiction of the Civil Court to try the suit is excluded. Section 23-A of the Travancore-Cochin General Sales Tax Act 11 of 1125 M. E. provides that :

"No suit or other civil 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.

But this express bar on which counsel for the State relied did not exclude the jurisdiction of the Civil Court, for S. 23-A was incorporated in the Travancore-Cochin General Sales Tax Act by Act 18 of 1955 after the suit was instituted by the respondents, and by S. 23-A as incorporated the jurisdiction of the Civil Court to try a suit properly instituted before it was enacted is not ousted.

3. Counsel for the respondents submitted that in the absence of an express provision in the Act excluding the jurisdiction of the Civil Court, the courts below were right in holding that the suit was maintainable, and in support of that contention; he relied upon the decision of this Court in Provincial Government of Madras (Now Andhra Pradesh) v. J. S. Basappa, 1964-15 STC 144. In Basappa s case, 1964-15 STC 144, the assessee who was taxed in respect of certain sales which took place outside the taxing State, sued the State for a decree for refund of the amounts paid by him on the plea that the transactions in respect of which the tax was levied were not taxable under the law. This Court held that without a provision like S. 18-A of the Madras General Sales Tax Act, 1939, the jurisdiction to entertain the suit was not taken away, specially where the action of the the authorities was "wholly outside the law . It was observed in that case that finality attached to orders passed in appeal by the Act was a finality for the purposes of the Act and "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.

4. But the jurisdiction of the Civil Court may be excluded expressly or by clear implication arising from the scheme of the Act. Where the Legislature sets up a special tribunal to determine questions relating to rights or liabilities which are the creation of a statute, the jurisdiction of the Civil Court would be deemed excluded by implication. In Raleigh Investment Co. Ltd. v. Governor-General in Council, 74 Ind App 50, the Judicial Committee in dealing with the question whether the jurisdiction of the Civil Court to entertain a suit for refund of income-tax may be deemed to be excluded, apart from the express exclusion prescribed by S. 67 of the Income-tax Act, by the scheme of the Income-tax Act, observed :

"...... the scheme of the Act (the Income-tax Act) is to set up a particular machinery by the use of which alone total income assessable for income-tax is to be ascertained. The income tax eligible is determined by reference to the total income so ascertained, and only by reference to such total income. Under the Act (S. 45) there arises a duty to pay the amount of tax demanded on the basis of that assessment of total income. Jurisdiction to question the assessment ot