M.R. Sharma, J.
1. The petitioner-firm is a registered dealer under the Punjab General Sales Tax Act, 1948 (hereinafter called the Act). It filed the returns for the year 1975-76 as also the revised returns in form S. T. VIII-A alleging therein that the purchases of paddy by its commission agents were not to be deemed as purchases made by the petitioner-firm and so, on these transactions, it was not liable to pay sales tax. The Assessing Authority, however, rejected this contention advanced on behalf of the petitioner-firm and framed the assessment. Against that order, the petitioner-firm filed an appeal before the Deputy Excise and Taxation Commissioner (A), Punjab, Patiala. Along with the appeal, an application was also filed under Section 20(5) of the Act praying therein that the appeal be entertained and decided without payment of tax. This matter came up before Shri K.S. Jaspal, Deputy Excise and Taxation Commissioner (1), Punjab, Patiala, on 26th October, 1976, who declined the request made by the petitioner-firm in its petition. Against that order, the petitioner-firm filed C.W.P. No. 8547 of 1976, which came up for decision before my learned brother A. S. Bains, J., on 22nd July, 1977. Before the learned Judge, it was submitted on behalf of the petitioner-firm that since the Deputy Excise and Taxation Commissioner had no authority under the law to deal with the matter inasmuch as he had not been invested with the powers to hear appeals, the order passed by him should be set aside. The learned Judge did not agree with this submission and dismissed the petition on the ground that since the main appeal filed by the petitioner-firm was pending and against the appellate order another appeal and a revision before the Tribunal were competent, it was not a fit case for exercise of discretion under Article 226 of the Constitution. The petitioner-firm then filed L.P.A. No. 262 of 1977 against the decision rendered by A. S. Bains, J., in C.W.P. No. 8547 of 1976. That petition came up for motion hearing before us on 1st August, 1977. On that date we issued notice in that appeal and also stayed the recovery of tax in the meanwhile. On 29th August, 1977, the case came up for confirmation of the stay order before a Division Bench of this Court when it was brought to the notice of the learned Judges that the main appeal had also been dismissed by Shri K.S. Jaspal, Deputy Excise and Taxation Commissioner. The learned counsel for the petitioner-firm states that since the L.P.A. had been filed against the interim orders on the petition filed by the petitioner-firm for hearing of the appeal without payment of tax, the Bench hearing the appeal dismissed the same on the ground that since the main cause had been disposed of, another interlocutory matter cannot be challenged in proceedings under Article 226 of the Constitution. This position stated by the learned counsel for the petitioner-firm has not been contested before us.
2. Faced with this situation, the petitioner-firm filed this petition in which notice of motion was issued by us for 19th September, 1977. Written statements were filed on behalf of the respondents yesterday and the case was ordered to come up for today.
3. Two questions arise for our decision :
(1) Whether, in the facts and circumstances of this case, the petitioner-firm should be directed to avail of the statutory remedies of appeal and revision or not ?
(2) Whether the order passed by a quasi-judicial authority, which was not invested with the powers of appeal on the date of the decision, should be allowed to stand or not ?
4. Article 265 of the Constitution lays down that no taxes shall be levied and collected from a citizen except by authority of law. It is also settled law that when a tax is imposed and collected without authority of law, it places an unreasonable restriction on the right of a citizen to hold property. The existence of another remedy available under a statute debars this court to hear a petition under Article 226 of the Constitution only in those cases where the petitioner does not claim enforcement of any of the fundamental rights conferred by the provisions of Part III of the Constitution. In these circumstances, it must be held that, if the appellate authority was incompetent to decide the appeal, a fundamental right of the petitioner-firm to hold property was being violated and it was entitled to invoke the jurisdiction of this court under Article 226 of the Constitution.
5. For determining the second question, we have to make a brief survey of the statutory provisions. Section 2(b) of the Act defines a 'Commissioner' to mean the Excise and Taxation Commissioner, appointed under Sub-section (1) of Section 3 of the Act. Section 3(1) of the Act lays down that, for carrying out the purposes of the Act, the State Government may appoint a person to be Excise and Taxation Commissioner and such other persons to assist him as it thinks fit. Sub-section (2) of Section 3 lays down that persons appointed under Sub-section (1) shall exercise such powers as may be conferred upon him. Section 11 of the Act relates to the jurisdiction of the Assessing Authority to frame an assessment. Section 20 of the Act provides for an appeal against an order of assessment. When all these provisions are read together, it becomes obvious that before an appellate authority can exercise jurisdiction to hear an appeal against an order of assessment, it must not only be appointed as an Excise and Taxation Commissioner under Section 3(1) of the Act but it must also be invested with the jurisdiction to hear appeals under Section 20 of the Act by the State Government in exercise of its powers under Section 3(2) of the Act. Any decision rendered by an authority which has not been conferred upon appellate jurisdiction would be regarded as a nullity in the eyes of law. Even otherwise, the scheme of the Act shows that the appellate authority has to exercise quasi-judicial functions while hearing an appeal and an assessee has an important right to have the legality of the assessment re-examined by a properly constituted appellate authority. If such an authority is not invested with the powers to decide an appeal, its decision cannot be enforced and can be challenged even at the stage of execution. In Ajit Singh v. State of Punjab A.I.R. 1967 S.C. 856, it was held that before a person can start acting as a Consolidation Officer, he must be appointed as such and before he is appointed he has no authority to exercise any of the functions of a Consolidation Officer. The ratio of that case aptly applies to the facts and circumstances of the instant case.
6. The matter whether Shri K.S. Jaspal was invested with the appellate powers or not came up before my learned brother A.S. Bains, J., in Aggarwal Mills, Moga v. State of Punjab (C.W.P. No. 8011 of 1976 decided by him on 22nd July, 1977). In that case, it was held that the appellate jurisdiction had been conferred on this officer with effect from 3rd March, 1977. I would also like to observe that the learned Deputy Advocate-General, Punjab, who appeared before the learned Judge had conceded this point on the basis of a notification issued by the State Government. In these circumstances, it must ba held that, as Shri K.S. Jaspal decided the application for the petitioner-firm under Section 20(5) of the Act on 26th October, 1976 and the appeal of the petitioner-firm on 20th December, 1976, he was under the law not competent to decide them. It is also clear that the appellate authority did not decide the appeal on merits and dismissed the same in default on the ground that the amount of tax had not been paid as ordered by it. In the circumstances of this case, it is obvious that the petitioner-firm has been denied a statutory right of appeal under Section 20 of the Act. I accordingly allow this petition, set aside the aforementioned orders passed by the appellate authority and remand the case to it for a fresh decision in accordance with law. I would also like to make it clear that in accordance with an earlier decision given by this Bench in Surindera Rice and General Mills, Morinda, District Rupnagar v. Deputy Excise and Taxation Commissioner (C.W. No. 7874 of 1976 decided on 7th December, 1976), it would be incumbent upon the appellate authority to dispose of the application under Section 20(5) of the Act before deciding the appeal on merits. The petitioner-firm will also have its costs which are assessed at Rs. 300. The parties through their counsel are directed to appear before the appellate authority on 10th October, 1977.
S.S. Sidhu, J.
7. I agree.