Rajagopala Aiyangar, J.
1. This is an application for the issue of a Writ of Certiorari to quash an order of assessment assessing the petitioners to sales tax under the Madras General Safes Tax Act. The facts giving rise to the petition are as follows:
2. The petitioners are wholesale consignees as also wholesale dealers in piece goods. As wholesale consignees they obtained goods from mills at Ahmedabad during the year 1949-50 for sale, to dealers according to their allotments. Certain goods indented for by them were sold directly to wholesalers, i.e., wholesalers clearing the goods allotted to them by the Provincial Textile Commissioner; but goods of the value of about 11 lakhs of rupees were not cleared by the wholesalers with the result that the petitioners had to sell them to retailers. The total turnover of the petitioners for the year was a sum of Rs. 33,32,000 odd, and out of this, as stated before, Rs. 11,61,433, represents sales to the retailers. The Deputy. Commercial Tax Officer not only levied assessment on the footing of a sale to the extent of Rs. 33 lakhs odd by the petitioners but held that in respect of the sale of goods to the extent of Rs. 11 lakhs odd there was first a notional sale to wholesalers and then a further sale by the petitioners themselves to the retailers with the result that the tax due upon Rs. 11 lakhs odd was duplicated. The basis for this method of dealing is stated by the Deputy Commercial Tax Officer in his order of assessment dated 7-6-1950 in these terms:
'These dealers were wholesale consignees arid wholesalers and some of the goods that they were not able to sell as consignees were sold by them as wholesalers. Although there was only one sale effected by them they had earned a stage of sales tax due on sale as consignee as there was a provision for it is the price structure. This amount has to be related to the sale as wholesalers.'
On this reasoning he added up tax on the Rs. 11 lakhs odd twice over. The matter was taken up 'by the petitioners to the Commercial Tax Officer, and when they got no relief, they applied to the Board of Revenue in revision and here also their petition was dismissed. They have now filed this petition for a writ of certiorari to quash the assessment based on them.
3. When the writ petition originally came on for hearing before one of us sitting singly, the learned Special Government Pleader raised a preliminary objection to the writ based upon the fact that the petitioners had a remedy by way of suit and that consequently, the remedy by way of writ was not open to them. On this, the petition itself was posted for being heard by a Bench.
4. On the facts narrated by us earlier, it is clear that there is only one sale involved in the transaction of sale, by the petitioners to the retailers and not two sales, one notional and another actual, as construed by the Deputy Commercial Tax Officer. On these facts, it is clear that the assessment in question cannot he sustained on the merits. Subsequent to the present assessment and its attaining finality by reason of the order of the Board of Revenue, the Appellate Tribunal constituted under the Sales-tax Act has held in similar cases that there was only one sale which could be the subject of taxation under the Sales-tax Act.
5. Mr. Veerasami, learned counsel for the Government Pleader does not support the assessmenton the merits. But he raised before us a preliminary objection that under Article 226 of the Constitution this Court has no power to issue a writ in cases where no fundamental right is involved or where no question of vires of any particular section is raised in the petition. As authority for this position, he referred to -- 'Raleigh Investment Co. Ltd. v. Governor-General in Council AIR 1947 PC 78 (A). But that was before the Constitution and has no bearing upon the proper' construction of Article 226, The question has received consideration at the bands of the Supreme Court in the latest decision on the point in -- 'Himmatlal Harilal Mehta v. State of Madhya Pradesh', : 1SCR1122 (B). The learned Chief Justice lays it down that when a petitioner comes forward with an allegation that a tax liability is illegally sought to be imposed upon him, his fundamental right to properly would be seen to be affected and that as a Consequence even if a narrow view of Article 226 were to be taken, the petition would be entertained and relief afforded.
In the present case, it is sufficient to state that if, as admitted there was no sale at all to the whole-saler, there cannot be any tax liability not merely on the terms of the General Sales-tax Act but even under the Constitution, so that really a question of the ultra vires nature of the tax would arise for consideration. In addition if the tax was illegal in the sense of not imposed by the Sales-tax Act at all the petitioners' right to property would be affected, so that even if a limited construction were to be adopted in regard to the scope of Article 226, such a condition would be satisfied in the present case. Having regard to the facts here, it is not necessary for us to lay down the exact scope of Article 226 or the cases to which it would apply. Suffice it to say that on any construction of the Article the present case falls within it and it would be open to us to interfere with the assessment order, which we are satisfied was improper and illegal. The petitioners have further exhausted all the remedies which were available to them under the General Sales-tax Act, as it then stood. There can, therefore, be no technical objection to this Court interfering to quash this assessment.
6. The result is that the petitioners are entitled to the issue of a writ of Certiorari quashing the order passed by the Deputy Commercial Tax Officer dated 7-6-1950 as confirmed by the Commercial Tax Officer and the Board of Revenue, in so far as it relates to the levy of a double tax on the sum of Rs. 11 lakhs odd, as mentioned before and such an order will issue. The petitioners will be entitled to their costs of this petition. (Advocate's fee Rs. 150).