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PATNA HIGH COURT
B.M.Lal and Shashank Kr.Singh JJ.
Orient Engineering Construction
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 2149 of 1988 ;
Decided On : FEBRUARY 27, 1998
TAXATION - Bihar Finance Act, 1981 - Section 25A - Validity - Ultra vires - Refund of tax paid under Section 25A - Whether permissible - Conditions.
Fact of the Case:
Numerous writ petitions were filed challenging the validity of Section 25A of the Bihar Finance Act, 1981. The petitioners contended that Section 25A was ultra vires and that the tax paid under this provision should be refunded. The court had previously upheld the validity of Section 25A in Geeta Prasad Singh and Co. v. State, but the Full Bench of the court later declared it ultra vires in Builders Association of India v. State of Bihar.
Finding of the Court:
The court held that the writ petitions were rendered infructuous since Section 25A had been declared ultra vires in the Builders Association case. However, the court considered the petitioners' request for a refund of the tax paid under Section 25A.
Issues: 1. Whether the tax paid under Section 25A of the Bihar Finance Act, 1981, which was later declared ultra vires, could be refunded. 2. Whether the refund would lead to "unjust enrichment" if the tax had been passed on to consumers by the petitioners.
Ratio Decidendi: 1. The court recognized that any tax collected without the authority of law, as in the case of Section 25A, would be violative of Article 265 of the Constitution and must be refunded. 2. However, the court noted that sales tax is a shifting tax, and if the tax was realized from consumers and paid to the State exchequer by the petitioners, refunding the tax to the petitioners could result in "unjust enrichment." 3. The court held that the question of whether the tax was paid by the petitioners without realizing it from consumers or after realizing it from consumers was a question of fact that could not be adjudicated upon in writ jurisdiction.
Final Decision: The court dismissed the writ petitions as infructuous but left it open to the petitioners to pursue appropriate legal remedies, such as filing a civil suit, to seek a refund of the tax paid under Section 25A.
B.M.Lal, J.
1. The judgment passed in this writ petition shall govern the disposal of following writ petitions as well :
(1) C.W.J.C. No. 1581 of 1988 (Nityanand Dubey V/s. State of Bihar)
(2) C.W.J.C. No. 1598 of 1988 (Umesh Kumar Jaiswal V/s. State of Bihar)
(3) C.W.J.C. No. 1462 of 1988 (Ram Prasidh Singh V/s. State of Bihar)
(4) C.W.J.C. No. 1476 of 1988 (Krishna Enterprises V/s. State of Bihar)
(5) C.W.J.C. No. 2117 of 1988 (Deepak Construction V/s. State of Bihar)
(6) C.W.J.C. No. 2192 of 1988 (Arvind Kumar Mishra V/s. State of Bihar)
(7) C.W.J.C. No. 1672 of 1988 (Ajay Kumar V/s. State of Bihar)
(8) C.W.J.C. No. 1582 of 1988 (Vikash Engineering Company V/s. Union of India)
(9) C.W.J.C. No. 1575 of 1988 (Bhrugu Nath Pandey V/s. State of Bihar)
(10) C.W.J.C. No. 1569 of 1988 (Shankar Prasad V/s. State of Bihar)
(11) C.W.J.C. No. 1562 of 1988 (Baleshwar Prasad V/s. State of Bihar)
(12) C.W.J.C. No. 1535 of 1988 (Ajay Construction V/s. State of Bihar)
(13) C.W.J.C. No. 2189 of 1988 (Chandrahas Rai V/s. State of Bihar)
(14) C.W.J.C. No. 1658 of 1988 (Sidhnath Prasad V/s. State of Bihar)
(15) C.W.J.C. No. 1656 of 1988 (Langeshwari Prasad Singh V/s. State ofBihar)
(16) C.W.J.C. No. 2154 of 1988 (Nagendra Kumar Singh V/s. State ofBihar)
(17) C.W.J.C. No. 2156 of 1988 (Ram Kishun Singh V/s. State of Bihar)
(18) C.W.J.C. No. 1765 of 1988 (Baleshwar Singh V/s. State of Bihar)
(19) C.W.J.C. No. 2095 of 1988 (Kumar Singh V/s. State of Bihar)
(20) C.W.J.C. No. 1580 of 1988 (Sona Construction V/s. State of Bihar)
(21) C.W.J.C. No. 1597 of 1988 (Anand Shankar Tiwary V/s. State ofBihar)
(22) C.W.J.C. No. 1501 of 1988 (Lal Babu Tiwary V/s. State of Bihar)
(23) C.W.J.C. No. 1596 of 1988 (Harendra Prasad Sharma V/s. State ofBihar)
(24) C.W.J.C. No. 1576 of 1988 (Ram Swarath Singh V/s. State of Bihar)
(25) C.W.J.C. No. 1538 of 1988 (Ajay Kumar Singh V/s. State of Bihar)
(26) C.W.J.C. No. 1542 of 1988 (Bijendra Kumar Singh V/s. State of Bihar)
(27) C.W.J.C. No. 1543 of 1988 (A.K. Engineering V/s. State of Bihar)
(28) C.W.J.C. No. 1579 of 1988 (Ajex India V/s. State of Bihar)
(29) C.W.J.C. No. 1574 of 1988 (Arvind Kumar V/s. State of Bihar)
(30) C.W.J.C. No. 1570 of 1988 (Uday Kumar Singh V/s. State of Bihar)
(31) C.W.J.C. No. 4689 of 1988 (Nagendra Mishra V/s. State of Bihar)
(32) C.W.J.C. No. 1549 of 1988 (Hare Ram Upadhayaya V/s. State of Bihar)
(33) C.W.J.C. No. 2092 of 1988 (Rabindra Construction V/s. State of Bihar)
(34) C.W.J.C. No. 1583 of 1988 (R.N. Lahiri and Company V/s. State ofBihar)
(35) C.W.J.C. No. 1537 of 1988 (Ram Suyash Singh V/s. State of Bihar)
(36) C.W.J.C. No. 1670 of 1988 (Gulab Mistri V/s. State of Bihar)
(37) C.W.J.C. No. 1644 of 1988 (Prem Kumar Singh V/s. State of Bihar)
(38) C.W.J.C. No. 1646 of 1988 (Satya Narain Ram V/s. State of Bihar)
(39) C.W.J.C. No. 1207 of 1988 (Konark Construction V/s. State of Bihar)
(40) C.W.J.C. No. 1901 of 1988 (Ashok Kumar Choudhary V/s. State ofBihar)
(41) C.W.J.C. No. 1963 of 1988 (A.K. Singh V/s. State of Bihar)
(42) C.W.J.C. No. 1917 of 1988 (Gopal Himat Singhka V/s. State of Bihar)
(43) C.W.J.C. No. 1920 of 1988 (Lal Babu Yadav V/s. State of Bihar)
(44) C.W.J.C. No. 1924 of 1988 (Kameshwar Pd. Singh V/s. State of Bihar)
(45) C.W.J.C. No. 1928 of 1988 (Palamau Construction V/s. State of Bihar)
(46) C.W.J.C. No. 1930 of 1988 (Shri Shital Prasad Jaiswal V/s. State ofBihar)
(47) C.W.J.C. No. 1938 of 1988 (Vijay Construction V/s. State of Bihar)
(48) C.W.J.C. No. 1952 of 1988 (Rajendra Singh V/s. State of Bihar)
(49) C.W.J.C. No. 1959 of 1988 (Bindeshwari Singh V/s. State of Bihar)
(50) C.W.J.C. No. 1958 of 1988 (Sri Sukhraj Kumar V/s. Union of India)
(51) C.W.J.C. No. 1954 of 1988 (Maurya Construction V/s. Union of India)
(52) C.W.J.C. No. 1992 of 1988 (Ram Sanjivan Chaudhary V/s. State ofBihar)
(53) C.W.J.C. No. 1500 of 1988 (Nripendra Kumar Sinha V/s. State of Bihar)
(54) C.W.J.C. No. 1546 of 1988 (Sushil Kumar Sinha V/s. State of Bihar)
(55) C.W.J.C. No. 1502 of 1988 (Cha
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