JUDGMENT

SABYASACHI MUKHARJI, J. :— These appeals by special leave arise from the decision of the High Court of Allahabad. Under Section 11 (3) of the U.P. Sales Tax Act, 1948 as amended from time to time the following questions were referred to the High Court for opinion at the instance of the Commissioner of Sales tax and statement of the case was submitted.

"1. Whether, the observations (subject, however, to the question of estoppel, waiver, limitation or the like) made by their Lordships of the Honble SC in the case of Sales Tax Officer, Banaras v. Kanhaiya Lal, Mukandlal, Saraf (1958) 9 STC 747, imply that the provisions of the Indian Limitation Act are applicable to cases under the U.P. Sales Tax Act and whether these observations are inconsistent with the view taken by the Honble High Court in the case of Sales Tax Commr. U.P. v. Sadasukh Veopar Mandal, (1959) 10 STC 57.

2. Whether, in these cases in which refund was claimed on the principle of section 72 of the Indian Contract Act the period of limitation under Article 96 of the Limitation Act could be taken into consideration by the Sales Tax authorities in refusing to allow refund?

3. Whether under the circumstances of this case as stated above, the Addl. Judge (Revisions) Sales Tax was legally justified in holding that the sums deposited by the Company towards sales tax for the year 1949-50, was refundable to the company?

4. Whether. the Addl. Judge (Revisions) Sales Tax was legally justified in entertaining the revision application in question of the aforesaid Company after the lapse of several years from the date of the assessment order particularly when the appeal and the revision application of the Company in respect of the assessment year were dismissed?

2. The questions relate to the assessment year 1949-50 and for subsequent years. In view of the decision of the Allahabad High Court in Commr. of Sales Tax. U.P. Lucknow v. Auraiya Chambers of Commerce which was in respect of the assessment year 1948-49 reported in (1972) 30 STC 41, the High Court felt that question No. 1 aforesaid need not be answered, question No. 2 aforesaid should be answered in the negative, question. No. 3 aforesaid in the affirmative and question No. 4 aforesaid in the affirmative.

3. The main question involved is the question of refund of sales tax paid in respect of forward contract.

4. In Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash (1955) 1 SCR 243, this Court held on 3rd May, 1954 that section 2(h) of the Uttar Pradesh Sales Tax Act, XV of 1948, enlarging the definition of "sale" so as to include forward contracts must, to that extent, be declared ultra vires. A bench of five learned judges of this Court held that there was a well-defined and well-established distinction between a sale and an agreement to sell. The words taxes on the sale of goods in entry No. 48, List II, Schedule VII of the Government of India Act, 1935, conferred power on the Provincial Legislature to impose a tax only when there had been a completed sale and not when there was only an agreement to sell. For the same reason Explanation III to section 2(h) of the said Act which provided that forward contract shall be deemed to have been completed on the date originally agreed upon for delivery, and section 3B of the Act also must be held to be ultra vires.

5. As a consequence, the assessee in this case filed a revision in 1955 for quashing the order for this year. It may be mentioned that the assessee had been taxed on the basis of sale of such forward contracts. The assessee after coming to know of the decision of this Court mentioned hereinbefore filed a revision in 1955 for quashing the assessment order in question. The revision was dismissed in September. 1958 on the ground that it had been filed after a long delay and was barred by limitation.

6. The assessee subsequently filed application before the Sales-tax Officer for refund of the amount which was deposited in accordance with the assessment order for