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Banwarilal and Co. (Private) Ltd. Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberAppeal From Original Order No. 39 of 1958
Judge
Reported in[1959]10STC68(Cal)
AppellantBanwarilal and Co. (Private) Ltd.
RespondentCommercial Tax Officer and ors.
DispositionAppeal dismissed
Excerpt:
- .....officer did not proceed in the manner required by statute. there is, therefore, no scope for any issue of writ of mandamus or of prohibition, unless, of course, the order made by him has to be called up and quashed under a writ of certiorari. clearly, certiorari could issue either if the sales tax officer acted without jurisdiction or there is an error apparent on the face of the record. the sales tax officer would have the duty of deciding the question whether the sales took place in the course of export out of india. even if he decided the question wrongly, that would not be a decision without jurisdiction. there is, therefore, no scope for an argument that the order was without jurisdiction.4. as regards the other question whether there is any error apparent on the face of the.....
Judgment:

K.C. Das Gupta, C.J.

1. This appeal is against an order of Sinha, J.. discharging a Rule which he had earlier issued on the respondents, directing them to show cause why a writ in the nature of certiorari or a writ in the nature of prohibition or mandamus should not issue for quashing an order in sales tax assessment proceedings of the 26th June, 1956, and some consequential orders. It appears that tax had been assessed by a Sales. Tax Officer in respect of certain sales of aircraft. It is now said that these sales were in course of export out of India and consequently no tax under the Sales Tax Act was leviable in respect of these. The Sales Tax Officer in his affidavit pointed out that this objection that sales tax was not leviable because the sales were in course of export had not been taken before him. That in fact no such objection was taken was not disputed. The learned Judge, however, addressed himself the question whether this was a case of sale in course of export, but came to the conclusion that it was impossible to decide this question without determination of facts which were disputed and so he refused to issue any of the writs.

2. That in my judgment is a good ground for his refusal. While in the exercise of his discretion he has not thought fit to issue these writs, we ought not to interfere with that exercise of discretion, unless there is good reason.

3. Mr. Mitra has tried to convince us that on the admitted facts, it would be possible and proper to hold that the sales were in course of export. Before, however, it can be proper for this Court to go into that question, it is necessary to see whether there is any scope for issue of a writ of certiorari or prohibition or mandamus in regard to the proceedings before the Sales Tax Officer, in. view of the position taken by the parties before the Sales Tax Officer. It is not suggested that the Sales Tax Officer did not proceed in the manner required by statute. There is, therefore, no scope for any issue of writ of mandamus or of prohibition, unless, of course, the order made by him has to be called up and quashed under a writ of certiorari. Clearly, certiorari could issue either if the Sales Tax Officer acted without jurisdiction or there is an error apparent on the face of the record. The Sales Tax Officer would have the duty of deciding the question whether the sales took place in the course of export out of India. Even if he decided the question wrongly, that would not be a decision without jurisdiction. There is, therefore, no scope for an argument that the order was without jurisdiction.

4. As regards the other question whether there is any error apparent on the face of the record, I find it impossible to see how this question can even be raised when the sole point on which there is said to be an error was not raised before the Sales Tax Officer. If it was the appellant's case that he was not lible to sales tax, because the sales were in the course of export out of India, it was his duty to raise that point. If he had raised that point and the Sales Tax Officer had decided it erroneously, there might be scope for an argument that in coming to the decision, he had made an error which is apparent on the face of the record. The question was not raised at all. If the question was not raised, how could there be a question of any error in the decision of that question. There is, therefore, in my opinion not even any scope for an argument of an error apparent on the face of the record.

5. Quite apart from the reasons given by the learned Judge himself, I am of opinion that the appellant was not entitled to any of the reliefs under Article 226 of the Constitution which he asked for.

6. I would, therefore, dismiss this appeal with costs.

BACHAWAT, J.

7. I agree.


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