Ajit Nath Roy, J.
1. This Rule was obtained by the petitioners against the Additional Commissioner of Commercial Taxes, Assistant Commissioner of Commercial Taxes, Commercial Tax Officer and the State of West Bengal requiring the opposite parties, respondents, to show cause as to why a writ of certiorari should not issue calling upon the respondents to return all records relating to orders dated 30th April, 1965, passed by the Additional Commissioner 6i Commercial Taxes, West Bengal, in Revision Cases Nos. 533 and 534 of 1964-65 so that conscionable justice may be administered by quashing the orders and also to show cause why a writ of prohibition should not issue commanding the respondents not to proceed on the basis of the orders and/or notice in Form VI dated 22nd February, 1964.
2. The order dated 30th April, 1965, is to be found in annexure H to the petition. The order was made on a petition for revision under Section 20(3) of the Bengal Finance (Sales Tax) Act, of the order dated 26th November, 1964, passed by the Assistant Commissioner of Commercial Taxes rejecting the petition of objection against the propriety of the Commercial Tax Officer in the matter of determination of the dealer's liability to pay tax under Section 4(2) of the Act with effect on and from 15, Baisakh 1366 B.S. By the order dated 30th April, 1965, the Additional Commissioner of Commercial Taxes, rejected the petition of the applicant.
3. The impugned notice dated 22nd February, 1964, is to be found in annexure E to the petition. By that notice the petitioners were called upon to produce accounts and documents for the purpose of assessment and the date of assessment was fixed on 9th July, 1964, at 11-30 A.M.
4. The petitioners' case is that on 2nd February, 1962, the petitioners applied for clearance certificate under the Bengal Finance (Sales Tax) Act, 1941. On 7th March, 1962, the certificate was issued by Arunabha Sen Gupta, Commercial Tax Officer, by which the petitioners had no sales tax liability up to Akshoy Tritia 1369 B.S. In the month of September, 1963, the petitioners applied for sales tax registration and on 16th October, 1963, the petitioners' application was rejected by Sudhir Kumar Sen, Commercial Tax Officer. On 4th November, 1963, the petitioners made a fresh application for registration. On 13th February, 1964, Sudhir Kumar Sen, Commercial Tax Officer, determined liability under Section 4(2) of the Act and held that the taxable quantum of rupees fifty thousand exceeded on 15, Falgoon 1365 B.S. corresponding to 27th February, 1959, and that the petitioners were liable to pay tax from 15, Baisakh 1366 B.S. corresponding to 29th April, 1959. On 22nd February, 1964, the notice in Form VI under Sections 11(2) and 14(1) of the Bengal Finance (Sales Tax) Act was issued. On 12th June, 1964, the petitioners filed a petition for revision of the order dated 13th February, 1964. On 9th July, 1964, the petitioners produced books before the Commercial Tax Officer. On 4th November, 1964, the petitioners' application for revision of the order dated 13th February, 1964, was rejected as time-barred. On 25th November, 1964, the petitioners' application dated 2nd September, 1964, for revision of the order dated 9th July, 1964, was rejected. On 20th January, 1965, the petitioners made application for revision of the orders dated 4th November, 1964, and 26th November, 1964, and those petitions were rejected by the order dated 30th April, 1965.
5. The petitioners impeached the order dated 30th April, 1965, and the notice dated 22nd February, 1964.
6. The first contention on behalf of the petitioners is that Arunabha Sen Gupta on 2nd February, 1962, made an order that the petitioners had no liability and Sudhir Kumar Sen had no jurisdiction to revise that order and determine any liability by the order dated 13th February, 1964. Reliance is placed on Sub-section (4) of Section 20 of the Bengal Finance (Sales Tax) Act, where it is said that any assessment made or order passed under this Act or the rules made thereunder by any person appointed under Section 3 may be reviewed by the person passing it upon application or of his own motion. Extracting that provision of the Act it is contended that Arunabha Sen Gupta was the only person who could review any assessment order and Sudhir Kumar Sen had no jurisdiction to make any order.
7. The second contention is that under rules 79 and 81 it is contemplated that before any order in appeal, revision or review is made likely to affect any person a notice in Form IX should be sent and that no notice in Form IX was sent in the present case and thereby Rule 79 was violated. Then it is said on behalf of the petitioners that under Rule 81 it is contemplated that when any Commercial Tax Officer reviews any order he shall send a copy of the order and of the statement of reasons to the Assistant Commissioner and that was not done in the present case.
8. The third contention on behalf of the petitioners was that under Section 4(2) of the Act the liability of a dealer is determined, and Rules 4 and 6 of the Bengal Finance (Sales Tax) Act deal with applications for certificate of registration and Rule 71 shows the powers which the Commissioner can delegate or has delegated and it will appear that the power under Section 4(2) has not been delegated and, therefore, the Assistant Commissioner had no jurisdiction to pass any order.
9. Under Section 20 of the Act it will appear that any dealer has a right to appeal against any assessment within sixty days. In the present case there was an assessment made. Under Section 3 and Section 3A it will appear as to who the taxing authorities are. The Commissioner of Commercial Taxes and the Additional Commissioner or Additional Commissioners of Commercial Taxes are the taxing authorities. Section 4 deals with incidence of taxation-that is a statutory liability. The statute determines the liability. That is, a liability created by the statute and it is a fallacy to contend that incidence of taxation is a power of the Commercial Tax Officer. Section 5 of the Act deals with the rate of tax. Section 7 deals with registration of dealers. Section 11 deals with assessment of tax. There is ample power under Section 11 to assess dealers where the Commissioner is satisfied that any dealer is liable to pay tax. Section 15 deals with delegation of Commissioner's powers. Section 20 deals with appeal, revision and review.
10. In the present case, the petitioners were assessed by the order dated 13th February, 1964. No appeal was preferred. Revision was sought of the orders. Those applications for revisions were rejected. The petitioners now contend that the order dated 13th February, 1964, is without jurisdiction and is illegal.
11. A contention was advanced on behalf of the respondents that the petitioners had not impeached the order dated 13th February, 1964. In answer the petitioners contend that the order dated 13th February, 1964, has merged in subsequent orders. Counsel on behalf of the petitioners relies on the decision of the Supreme Court in The Collector of Customs, Calcutta v. The East India Commercial Co. Ltd., Calcutta and Ors. (1963) 1 S.C.A. 348, in support of the contention that once an order of an original authority is taken to the higher authorities, it is the order of the higher authority which is the operative order. In the East India Commercial Company case (1963) 1 S.C.A. 348, the order was passed by the Collector of Customs, Calcutta, and an appeal was taken to the Central Board of Revenue. The Central Board of Revenue was situated at Delhi. The question arose as to whether any writ could issue against the Central Board of Revenue which was located outside the jurisdiction of the Court and, if no writ could issue against the Central Board of Revenue whether any writ could be issued against the authority which passed the original order. In the East India Commercial Company case (1963) 1 S.C.A. 348, it was held that the appellate order was the operative order after the appeal was disposed of because that was the last order. The ratio of the decision in East India Commercial Company case (1963) 1 S.C.A. 348 appears to be that if an appeal is provided against an order passed by a Tribunal, and an appeal is preferred the decision of the appellate authority is the operative order in law. The decision of the Supreme Court in State of U. P. v. Mohammad Nooh  S.C.R. 595 was distinguished in the East India Commercial Company case (1963) 1 S.C.A. 348 on the ground that Mohammad Nooh's case  S.C.R. 595 was not concerned with the territorial jurisdiction of the High Court where the original authority was within the territorial jurisdiction and the appellate authority was not.
12. In Mohammad Nooh's case  S.C.R. 595, there was an order of dismissal passed in the year 1948. Thereafter representations in the nature of appeals were made. The order made in the year 1948 was not impeached and it could not be impeached because the Constitution did not speak retrospectively in relation to such orders. A contention was advanced in Mohammad Nooh's case  S.C.R. 595 that inasmuch as decrees of the appellate court wiped out decrees of the original court, the order passed by departmental authorities subsequent to the order of dismissal made in the year 1948, wiped out the order made in the year 1948. That contention was negatived by holding that the parity of reasoning on appellate decrees did not apply to departmental proceedings.
13. The principles deduced from both the decisions of the Supreme Court are these. If an appeal has been preferred, the appellate order would be operative. On the other hand, the departmental orders passed at different stages remain effective by virtue of their own existence if they are not subject-matter of appeals. In the present case the order dated 13th February, 1964, was not taken upon appeal. Applications were made for revision. The orders passed upon such applications did not touch the order dated 13th February, 1964. The order dated 13th February, 1964, has not been modified, reversed or confirmed. In other words, the orders passed on revision, as I have already indicated, were rejected as they were barred by time. The result is that the order dated 13th February, 1964, remains and remains effective by propriety of its own vigour. It is also manifest that the petitioners have also not challenged the order passed on 9th July, 1964, as also the order passed on 4th November, 1964, and the order passed on 26th November, 1964. The order made on 30th April, 1965, which has been impeached indicates that the petitioners' plea of relief from limitation in regard to appeal was rejected and it was held that the petitioners could not ask for review of the order by the Commercial Tax Officer after the petitioners had preferred an application before the higher authority. Counsel for the State, in my opinion, rightly contended that in matters affecting assessment where the statute provides relief and remedy, applications under Article 226 of the Constitution are not ordinarily entertained. It is only in a rare case where there is a. breach of fundamental rights or there is violation of principles of natural justice or there is excess of jurisdiction that such applications are entertained. In view of the fact that the order dated 13th February, 1964, has not been impeached, it is not open to the petitioners to contend on the impropriety of the order. Further, I am of opinion, that even if this question could be gone into in accordance with the contention of the petitioners that Sudhir Kumar Sen could not pass an order, the statute confers ample and adequate authority or power on the Commercial Tax Officer to make an assessment and such an order of assessment is perfectly valid and justified.
14. The other contention as to lack of delegation is not one of the grounds taken in the petition and, therefore, it is not open to the petitioners to canvass this at all. Assuming, this could be gone into, the fallacy is, as I have already indicated, to equate statutory law with the power of Commissioner of Commercial Taxes.
15. It was contended that there was violation of Article 265 of the Constitution. Article 265 of the Constitution enacts that no tax shall be levied or collected except by the authority of law. I am unable to accept the contention on behalf of the petitioners that there is any violation of Article 265. The assessment is made in accordance with the provisions of the statute. The petitioners invited the jurisdiction of the authority under the Bengal Finance (Sales Tax) Act for redress of the petitioners' grievances. The petitioners failed. The petitioners thereafter turned round and started these proceedings. In my opinion the petitioners are not entitled to do so because one of the principles of applications under Article 226 of the Constitution is that the petitioners must come in aid of redress of bona fide and legitimate grievances. In the present case it is apparent that the petitioners having lost in the several rounds of revisions of the various orders passed by the assessing authorities, tried to reopen some of the orders in a circuitous manner. That is not a bona fide application.
16. For these reasons I am of opinion that the petitioners are not entitled to succeed. The application is dismissed. The Rule is discharged. The petitioners are to pay costs to the respondents being assessed at three gold mohurs.