Challenges to assessment and tax liability under the M.P. General Sales Tax Act, 1958 are beyond the competence of the Civil Court and should be addressed through the Act's machinery.

R.C. Lahoti, J.

1. The plaintiff has come up in appeal aggrieved by the judgment and decree of the trial Court dismissing its suit as not maintainable.

2. The plaintiff sought for a declaration that recovery of Rs. 53,914/-sought to be made by the defendant/State was illegal and void. The case of the plaintiff was that the impugned amount was assessed as sales-tax payable by the plaintiff on certain transactions entered into by him which, in his submission, did not amount to transactions of sale and hence were beyond the ken of M.P. General Sales Tax Act, 1958. The State objected to the maintainability of the suit. A preliminary issue was framed. Having heard the parties, the trial Court has held that the suit of the nature brought by the plaintiff-appellant was barred under Section 37 of M.P. General Sales Tax Act, 1958 (hereinafter referred to as 'the Act').

3. Section 37 of the Act reads as under: --

"37. Bar to certain proceedings. -- Save as provided in Section 44, no assessment order or the determination of liability to pay any tax or penalty or the recovery of any tax or penalty made under this Act or the rules made thereunder by the Commisioner or any person appointed under Section 3 to assist him shall be called into question in any Civil Court and save as provided in Sections 38 and 39, no appeal or application for revision shall lie against any such assessment or order."

4. It cannot be denied that the M.P. General Sales Tax Act, 1958 is a special enactment dealing with sales tax as applicable to the State of M.P. It provides a complete machinery for assessment of sales-tax, also forums of appeal and revision -- before which challenge can be laid to the correctness of the assessment made seeking setting aside or modification of the assessment made by the assessing authority.

5. In the leading authority of Dhulabai v. State of M.P. 1969 MPLJ 1 = AIR 1969 SC 78, their Lordships have held inter alia: -

"Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry."

6. In Firm I.S. Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322, their Lordships have held that a suit claiming simpliciter a refund or recovery of money against the State alleging the recovery of tax to be illegal was incompetent. Their Lordships defined the expression "any asessment made under the Act" to include all assessments whether correct or not. Their Lordships held that the questions touching the correctness or setting aside or modification of the assessment were beyond the forum of Civil Court; the Civil Court could not enter into the controversy as to the taxable character of the transaction in which the remedy lay only under the said statute.

7. Recntly one of us (R.C. Lahoti, J.), in State of M.P. v. Smt. Mathura Devi, 1991 MPJR 416, having reviewed the law available on the point, summed up the principle in the following terms: --

"To sum up, a mere challenge to the correctness of the assessment or a suit requiring adjudication upon the nature or character of the transaction -- whether it would be taxable or not -- is beyond the competence of the Civil Court, but a suit raising a question of constitutionality of any provision in or under the enactment would lie in a Civil Court." (Para 15) We find ourselves in entire agreement with the view so taken.

8. In the case at hand, there is no challenge laid to the constitutionality of any provision. The suit proceeds on the ground that correctly construed, the transactions entered into by the plaintiff would not be transactions of sale liable to tax