Comprehension
If a tax is ultra vires or unconstitutional then the party is entitled to have a refund of it from the government whether it has been paid under protest or not. This Court has held that the payment of tax which is without authority of law is payment made under a mistake within the meaning of Section 72 of the Indian Contract Act. Then, in such a case, question would arise, whether the government to whom the payment had been made by mistake must repay it. Thus, the principle of restitution or repayment of the tax simpliciter has been considered in light of the doctrine of unlawful enrichment. The doctrine envisages that when the State collects a tax from the tax-payer without authority of law, but if the taxpayer has already passed on the burden of the tax money paid by him to the State to someone else and has recouped the money then the taxpayer is not entitled to ask for the restitution from the State the money paid by him as unauthorized tax. In such circumstances, the State cannot be asked to refund the tax money to the taxpayer on the principle of unlawful enrichment.
Question: 1
Doctrine of Unjust Enrichment implies:
Doctrine of Unjust Enrichment implies:
Updated On: Jul 11, 2024
- Obtaining benefit from another (which is not a gift) without legal justification
- Restoration of the benefits obtained without legal justification
- Neither (A) nor (B)
- Both (A) and (B)
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The Correct Option is D
Solution and Explanation
The Correct Answe is option (D): Both (A) and (B)
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Question: 2
Doctrine of Unjust Enrichment is applicable to:
Doctrine of Unjust Enrichment is applicable to:
Updated On: Jul 19, 2024
- Contractual Matters
- Tax Matters
- Both (A) and (B)
- None of these
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The Correct Option is C
Solution and Explanation
The Correct Answe is option (C): Both (A) and (B)
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Question: 3
A business entity can claim refund of tax on the ground of unjust enrichment in which of the following cases?
A business entity can claim refund of tax on the ground of unjust enrichment in which of the following cases?
Updated On: Jul 11, 2024
- When the tax has been levied without the authority of law and the burden of tax is borne by the business entity
- When the tax has been levied without the authority of law and the burden of tax has been passed on to the consumer.
- When levy of tax is under the authority of law and the business entity has not passed the burden to the consumer.
- Both (A) and (C)
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The Correct Option is A
Solution and Explanation
The Correct Answe is option (A): When the tax has been levied without the authority of law and the burden of tax is borne by the business entity
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Question: 4
When can tax be declared as unconstitutional?
When can tax be declared as unconstitutional?
Updated On: Jul 11, 2024
- If tax has been levied without the authority of law.
- If the legislature does not have legislative competence to levy that tax.
- Both (A) and (B)
- When the assessment of tax by assessing officer is contrary to facts and evidence on record.
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The Correct Option is C
Solution and Explanation
The Correct Answe is option (C): Both (A) and (B)
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Question: 5
In which of the following cases, challenge to constitutionality of the Goods and Service Tax (Compensation to States) Act, 2017 on the ground of lack of legislative competence was rejected?
In which of the following cases, challenge to constitutionality of the Goods and Service Tax (Compensation to States) Act, 2017 on the ground of lack of legislative competence was rejected?
Updated On: Jul 11, 2024
- Union of India v. Mohit Minerals Pvt. Ltd. (2019) 2 SCC 599.
- Sudhir Kumar Atrey v. Union of India (2022) 1 SCC 352.
- Hindustan Construction Co. Limited v. Union of India (2020) 17 SCC 324.
- Union of India v. A. Shainamol 2021 SCC OnLine SC 262.
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The Correct Option is A
Solution and Explanation
The Correct Answe is option (A): Union of India v. Mohit Minerals Pvt. Ltd. (2019) 2 SCC 599.
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Question: 6
Additional tax, in the form of tax on tax, for a specified purpose is called:
Additional tax, in the form of tax on tax, for a specified purpose is called:
Updated On: Jul 11, 2024
- Cess
- Fee
- Tax
- None of the above
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The Correct Option is A
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The Correct Answe is option (A): Cess
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- The Hon’ble Supreme Court in the case of ‘Nil Ratan Kundu and another v. Abhijit Kundu’ 2008(3) Apex Court Judgements 232 (SC), while granting the custody to the maternal grandparents observed: In our judgement, the law relating to custody of a child is fairly well settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem in live in relationship and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, may bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favorable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable consideration. If the minor is old enough to form an intelligent preference or judgement, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
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The impugned constitutional amendments by which Article 16 (4-A) and 16 (4-B) have been inserted, flow from Article 16 (4). They do not alter the structure of Article 16 (4). They retain the controlling factors or the compelling reasons which enables the State to provide for reservation keeping in mind the overall efficiency of the state administration under article 335. Sub-categorization within a class is a constitutional requirement to secure substantive equality in the event that there is a distinction between two sections of a class; Sub-classification must not lead to the exclusion of one of the categories in the class. A model that provides sufficient opportunities to all categories of the class must be adopted; and Sub-classification among a class must be on a reasonable basis.
Justice Bela Trivedi opined, in dissent, that presidential list of scheduled castes notified under Article 341 cannot be altered by the States. Any change to this list can only be made by a law enacted by Parliament. Sub-classification, according to her would amount to tampering with the Presidential List and undermine the object Article 341, which aims to eliminate political influence in the SC-ST List. Further, she emphasised the importance of adhering to the rule of plain and literal interpretation. She mentions that any preferential treatment for a sub-class within the presidential list would deprive other classes within the same category of their benefits. In the absence of executive or legislative power, state lack the competence to sub-classify castes and the benefit reserved for all SCs. Allowing states to do so would constitute a colourable exercise of power, which is impermissible under law. Justice Trivedi concluded by affirming that affirmative action by States must remain within constitutional boundaries and held that the law laid down in E.V. Chinnaiah case was correct and should be upheld.
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