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Jashoda Factories (Private) Ltd., Bombay Vs. Assistant Commissioner of Sales Tax (Adm.), Eastern Division, Regions I and Ii, Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 50 of 1958 and Appeal Case No. 9-A of 1954
Judge
Reported in[1959]10STC508(Bom)
ActsConstitution of India - Articles 226 and 227; Sales Tax Act - Sections 22
AppellantJashoda Factories (Private) Ltd., Bombay
RespondentAssistant Commissioner of Sales Tax (Adm.), Eastern Division, Regions I and Ii, Nagpur and ors.
Appellant AdvocateR.J. Bhave, ;J.M. Thakar and ;M.N. Phadke, Advs.
Respondent AdvocateN. L. Abhyankar, Special Government Pleader
Excerpt:
.....operation. but the presumption against retrospective construction has no application to enactments which affect only the procedure and practice of courts or tribunals. - - 4. having heard counsel we are satisfied that this objection must prevail. 375 of 1954. in the view that we take of this matter, the petition must fail on the short ground that it is bound by the order in miscellaneous petition no......that the petitioner-company has filed a second appeal before the commissioner of sales tax, nagpur, which appeal is pending, and in view of this it is not entitled to prosecute this petition. 3. the agrument is twofold, namely, first that the petitioner has another remedy, and secondly, that in this very matter between the same parties a previous order was passed by mr. justice sen of the then high court at nagpur. by that order the petitioner was ordered to exhaust its remedies against the impugned order under section 22 of the sales tax act. 4. having heard counsel we are satisfied that this objection must prevail. quite apart from the question whether the petitioner has another remedy open or not and mr. phadke appearing on behalf of the petitioner has urged that the remedy is.....
Judgment:

Kotval, J.

1. This is a petition preferred against an order of the Deputy Commissioner of Sales Tax (Appeals), Eastern Division, Nagpur. The petitioner claims that certain orders passed by the Assistant Commissioner of Sales Tax and the order of the Deputy Commissioner refered to above be quashed.

2. A preliminary objection was raised on behalf of the State by the learned Special Government Pleader that the petitioner-company has filed a second appeal before the Commissioner of Sales Tax, Nagpur, which appeal is pending, and in view of this it is not entitled to prosecute this petition.

3. The agrument is twofold, namely, first that the petitioner has another remedy, and secondly, that in this very matter between the same parties a previous order was passed by Mr. Justice Sen of the then High Court at Nagpur. By that order the petitioner was ordered to exhaust its remedies against the impugned order under section 22 of the Sales Tax Act.

4. Having heard counsel we are satisfied that this objection must prevail. Quite apart from the question whether the petitioner has another remedy open or not and Mr. Phadke appearing on behalf of the petitioner has urged that the remedy is not an equally efficacious remedy because he has been asked to deposit a large sum of money as a condition precedent to the hearing of his appeal, we think that in view of the order passed in the previous proceedings before the Nagpur High Court this petition cannot lie and we need not consider the first question raised.

5. In Miscellaneous Petition No. 374 of 1954 which was heard along with Miscellaneous Petition No. 375 of 1954 by the same learned Judge, it was observed in paragraph 4 of the order that the petitioner must exhaust the remedy open to it under sub-section (1) of section 22. It has already filed an appeal to the Commissioner. It may urge before the Commissioner that the Deputy Commissioner had no jurisdiction to decide the first appeal. This order was an order between the same parties and made in a petition preferred by the same petitioner. The judgment in that petition is therefore a judgment inter partes and binding upon the petitioner. The matter is no longer res integra and the petitioner cannot now be heard to urge that the remedy was not an equally efficacious remedy.

6. Mr. Phadke on behalf of the petitioner urged that the remarks in paragraph 4 of the order in Miscellaneous Petition No. 374 of 1954 have reference to an earlier decision in Miscellaneous Petition No. 347 of 1953 wherein a similar objection was overruled on the ground that the petitioner had already deposited the amount demanded from him as a condition precedent to the hearing of his appeal and therefore the principle in Himmatlal v. State of Madhya Pradesh : [1954]1SCR1122 did not apply. We have considered this objection but we are unable to see how the remarks in Deoji's case (Miscellaneous Petition No. 347 of 1953) can possibly affect the clear decision given in paragraph 4 of the order in Miscellaneous petition No. 374 of 1954. In Miscellaneous Petition No. 375 of 1954, which was the case of the petitioner, the same learned Judge referred to the reasons given by him in paragraph 4 of the order in Miscellaneous Petition No. 374 of 1954 as the reasons for the order passed in Miscellaneous Petition No. 375 of 1954. In view of this, the reasons given in Miscellaneous Petition No. 374 of 1954 became part of the order in Miscellaneous Petition No. 375 of 1954. In the view that we take of this matter, the petition must fail on the short ground that it is bound by the order in Miscellaneous Petition No. 375 of 1954 and must exhaust its remedies as ordered therein.

7. The petition is accordingly dismissed. In the circumstances there shall be no order as to costs.

8. Petition dismissed.


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