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Nepal Chandra Banerji Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtKolkata High Court
Decided On
Case NumberC.R. Case No. 1601 (W) of 1969
Judge
Reported in[1977]40STC23(Cal)
AppellantNepal Chandra Banerji
RespondentCommercial Tax Officer and ors.
Appellant AdvocateD. Pal and ;Anil Kumar Roychoudhury, Advs.
Respondent AdvocateS.N. Dutta, Adv.
Cases ReferredCoffee Board v. Joint Commercial Tax Officer A.I.R.
Excerpt:
- t.k. basu, j.1. in this application, the petitioner challenges an order of assessment dated 21st august, 1963 and certain notices issued under the provisions of the bengal finance (sales tax) act, 1941 (hereinafter referred to as the act).2. the facts relating to the present application may be briefly noted. the petitioner was appointed as a contractor under the public works department of the government of west bengal for supply of stone materials of different sizes including boulderss chips and shingles after collecting them from river-beds, in terms of the directions of the public works department, jalpaiguri.3. the petitioner was appointed as a contractor as aforesaid in terms of a tender which was offered by the petitioner and accepted by the public works department, government of.....
Judgment:

T.K. Basu, J.

1. In this application, the petitioner challenges an order of assessment dated 21st August, 1963 and certain notices issued under the provisions of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act).

2. The facts relating to the present application may be briefly noted. The petitioner was appointed as a contractor under the Public Works Department of the Government of West Bengal for supply of stone materials of different sizes including boulderss chips and shingles after collecting them from river-beds, in terms of the directions of the Public Works Department, Jalpaiguri.

3. The petitioner was appointed as a contractor as aforesaid in terms of a tender which was offered by the petitioner and accepted by the Public Works Department, Government of West Bengal.

4. Some of the conditions of the tender, which are annexure C to the petition, are material for the purpose of deciding the controversy in the present case and may be set out below:

5. The material portion of Clause 2 of the tender is as follows :

The contractor is to deliver the materials on or before the dates mentioned in the tender....

6. Clause 6 runs as follows :

On the completion of the delivery of materials, the contractor shall be furnished with a certificate to that effect, but the delivery will not be considered complete until the contractor shall have removed all the rejected materials and shall have the approved materials stacked or placed in such position as may be pointed out to him.

7. Clause 7 provides as follows :

The material shall be of the best description and in strict accordance with the specification and the contractor shall receive payment for such materials only as are approved and passed by the Executive Engineer or the Sub-Divisional Officer.

8. Clause 6 of the conditions of the contract provides as follows:

On completion of the work, the contractor shall be furnished with a certificate by the Sub-Divisional Officer/Divisional Officer (hereinafter called the Engineer-in-charge) of such completion, but no such certificate shall be given, nor shall the work be considered to be complete until the contractor shall have removed from the premises on which the work shall be executed all scaffolding, surplus materials and rubbish and cleaned off the first from all wood-work doors, windows, walls, floors, or other parts of any building in, upon or about which the work is to be executed....

9. Clause 7 of the conditions runs as follows:

No payments shall be made for works estimated to cost less than rupees one thousand, till after the whole of the works shall have been completed and a certificate of completion given.

10. It may be mentioned that there was some additional conditions attached to the tender which as I have stated was accepted by the Public Works Department of the Government of West Bengal.

11. Clause 6 of the additional conditions provides as follows:

Contractors in the course of their work should understand that all materials (e. g., store and other materials) obtained in the work of dismantling, excavation, etc., will be considered Government property and will be disposed of to the best advantage of Government.

12. Another material document is a letter dated 24th December, 1962, from the Deputy Chief Engineer, West Bengal, Jalpaiguri, to the petitioner, which is as follows :

Dear Sir,

Your rate offered in the separate bid for the above-noted work at 5 per cent less (five per cent less) than the schedule of rates for 1961-62 of Northern Circle, P. W. D., for collection of stone boulders and shingles and at 5 per cent less (five per cent less) than the schedule of rates for 1962-63 for breaking of stone metal to stone chips (labour only) as well as for carriage of all stone materials, boulders, shingles, etc., i. e., amounting to Rs. 3,72,979 against the estimated amount of Rs. 2,98,383 put to tender has been accepted by me for and on behalf of the Governor of West Bengal subject to the maximum consolidated rate originally quoted for supply and collection of the following materials for 100 cft.

13. Then follows the details of the materials which are not necessary for our purpose.

14. The only other material document is a letter dated 6th January, 1969, written by the petitioner to the Divisional Forest Officer, Cooch Behar Division, which is as follows :

Sir,

In connection with the above flood damage repair work I am badly in need of collecting 453 cm. of stone bazree from the above river-bed and so, I would request you to kindly permit me to lift the aforesaid quantity of stone bazree immediately so that the work may be completed within the stipulated period.

Necessary royalty will be paid by me.

15. This letter was forwarded by the Assistant Engineer (Rates) to the Divisional Forest Officer, Cooch Behar Division, with the following note :

Forwarded in original for favour of his kind disposal. The applicant Sri N. C. Banerji has been entrusted with the work mentioned in the application and may kindly be allowed to collect 453 cm. of stone bazree from Basra river-bed on receipt of necessary royalty from the applicant as per rules.

16. The Commercial Tax Officer, Jalpaiguri, by an order dated 1st June, 1968, held that the supply of the stone materials in terms of the above contract amounted to 'sale' within the meaning of the Act and, as such, the petitioner was liable to pay sales tax under Section 4(2) of the Act from 28th July, 1961.

17. By an order of assessment dated 21st August, 1968, the same Commercial Tax Officer assessed the petitioner under Section 11(2) of the Act to sales tax for a sum of Rs. 25,035.90 on the basis that the supplies made by the petitioner to the Public Works Department, Government of West Bengal, amounted to a sale of goods within the meaning of the Act.

18. These two orders and certain specified notices for assessment under the provisions of the Act are the subject-matter of challenge before me in this application.

19. Dr. Debi Prosad Pal, appearing on behalf of the petitioner, contended before me that the transaction in question did not amount to a sale within the meaning of the Act. Relying on the letter dated 24th December, 1962, Dr. Pal submitted that the work that the petitioner was entrusted under the contract was the collection of certain stone boulders and shingles, breaking thereof into certain sizes and specifications and the carriage thereof to a particular place. This, according to Dr. Pal, did not amount to a sale. He further submitted on the basis of the letter dated 6th January, 1969, that the petitioner had to apply to the Divisional Forest Officer, Cooch Behar Division, for permission to collect a certain quantity of stone from the river-bed for the purpose of cutting them to a certain size and supplying them to the Public Works Department, Government of West Bengal. It was further pointed out that the permission was granted to the petitioner as asked for on payment of a certain sum as royalty.

20. According to Dr. Pal, the property in the goods, at all material times, belonged to the State of West Bengal and the fact that royalty was paid for collection of the stones before they were cut to particular size did not have the effect of transferring the property to the petitioner. In other words, the payment of royalty to the State of West Bengal for collection of the stones did not have the effect in law of making the petitioner the owner of the stones that were collected. According to Dr. Pal, as the petitioner never became the owner of the stones, there was no question of selling them to the Public Works Department, Government of West Bengal. Consequently, the Commercial Tax Officer was in error in holding that the transactions in question amounted to sale and imposing sales tax under the provisions of the Act on the basis thereof. The impugned notices, according to Dr. Pal, are also without jurisdiction as the transactions did not amount to a sale.

21. In support of his contention, Dr. Pal placed strong reliance on a decision of the Supreme Court in the case of Commissioner of Sales Tax, M. P. v. Purshottam Premji [1970] 26 S.T.C. 38 (S.C). This decision in my view is almost on all fours with the facts of the present case. As such, it will be necessary to set out some portions of the judgment. At page 39 of the Reports, Hegde, J., of the Supreme Court observed as follows:

The sole question that arose for decision in those references was whether the transactions referred to in those references are 'sales' within the meaning of the Madhya Pradesh General Sales Tax Act, 1958, or whether they were merely works contracts. The High Court has opined that they were works contracts and as such the turnovers relating to those transactions are not liable to be taxed under the Act.

The facts material for the purpose of deciding these appeals are: The assessee entered into two contracts with the S. E. Railway for breaking stones and supplying ballast. Under the first contract he was to break stones into ballast and supply approximately 60,00,000 cubic feet of ballast at Rs. 27-6-0 per cubic foot. Under the second contract, he was to supply in small slacks of a specified size at a flat rate of Rs. 35 per 100 cubic feet. The general and special conditions of those contracts were the same. The quarry from which the stones were to be quarried belonged to the railway administration. The assessee was merely to quarry stones from those quarries, break them into pieces of specified size and supply them to the railway administration.

22. Thereafter Hegde, J., goes on to observe as follows:

The main features of the contracts with which we are concerned in these appeals are : (1) the assessee was to quarry stones from the quarries belonging to the South Eastern Railway and (2) he was to break those stones into pieces and convert them into ballast of a specified size and thereafter supply them to the S. E. Railway. Prima facie, the S. E. Railway was the owner of the ballast. The assessee's duty was only to do some work on the stones belonging to the S. E. Railway administration. Hence it is difficult to accept the contention of the sales tax authorities that the transactions in question are sales within the meaning of Section 2(n) of the Act.

23. After setting out the definition of 'sale' in the Madhya Pradesh Act, Hegde, J., goes on to observe as follows :

From the above definition, it is clear that before a transaction can be considered as a sale, there must be a transfer of property in goods. Without such a transfer, there cannot be any sale. In the instant case, quite clearly, the property in the ballast at all relevant times was with the S. E. Railway. The ballast was never the property of the assessee. Therefore, there was no question of the assessee transferring any property in it to the S. E. Railway. Hence it is not possible to uphold the contention of the department that there was any sale within the meaning of Section 2(n) of the Act.

24. At page 41 of the Reports, Hegde, J., observed as follows :

The fact that the railway had provided in the agreement that the assessee shall pay the royalty due to the State Government does not in any manner detract from the legal position that the railway was the owner of the quarry. It is merely an arrangement for the payment of a royalty.

25. Relying on the above decision, Dr. Pal submits that the stones which were supplied to the Public Works Department, Government of West Bengal, never came under the ownership of the petitioner. As pointed out already, they were the property of the Forest Department, which is merely a department of the State of West Bengal. The petitioner sought for and obtained the permission of that department to collect the stones on payment of a royalty. This fact of payment of royalty, however, did not have the effect of transferring the property to the petitioner on the basis of the principle laid down by the Supreme Court in the above case.

26. Dr. Pal further points out that the Commercial Tax Officer in passing the impugned order of assessment has proceeded on an entirely fallacious proposition of law. Dr. Pal pointed out that the Commercial Tax Officer refers to the case of Calcutta Co. Ltd. [1964] 15 S.T.C. 554 and holds that the case is distinguishable from the facts of the present case on the ground that the river-bed from which the petitioner collected the stones were never leased out to the Public Works Department, Government of West Bengal. According to the Commercial Tax Officer, since the stones were collected and royalty was paid to the Forest Department and not to the Public Works Department of the Government of West Bengal the transaction amounted to a sale. Dr. Pal submits that whether it is the Forest Department or the Public Works Department, the ownership of the property must be held to inhere in the State of West Bengal of which these departments are merely administrative divisions.

27. In my view, this contention of Dr. Pal should be accepted. I do not see how the question as to whether the stones were collected by virtue of a permission granted by the Forest Department or the Public Works Department of the Government of West Bengal makes any difference to the legal position. In the eye of law, the stones must be held to be the property of the State of West Bengal. As the Supreme Court has pointed out in the case mentioned above, the payment of royalty for collection of these stones does not have the effect of transferring the property to the petitioner. Consequently, it must follow that the stones never became the property of the petitioner. As such there was no question of transferring the property in the stones to the Public Works Department by way of a sale. The inescapable conclusion therefore is that the transaction in question did not amount to a sale. Consequently, it must be held that the Commercial Tax Officer was in error in passing the impugned orders and issuing the impugned notices on the basis that the petitioner had effected the sale of the stones in question to the Public Works Department, Government of West Bengal, which was liable to sales tax under the provisions of the Act.

28. Mr. Dutta, the learned Advocate appearing on behalf of the State of West Bengal, sought to rely on a decision of the Madras High Court in the case of S. Bakthavatsalu v. State of Madras [1963] 14 S.T.C. 832, where it was held that under the contract entered into with the Neyveli Lignite Corporation, where the assessee had agreed to supply the corporation certain quantity of granite, it amounted to a sale liable to sales tax and not a contract for quarrying as contended by the assessee. Mr. Dutta invited me to hold on the basis of that decision that the transaction in the instant case should also be held to be not a works contract but a contract of sale.

29. In answer to this contention, Dr. Pal pointed out the very significant passage at page 834 of the Reports, which is as follows:

In amplification of these arguments, the learned counsel claims that the other contracting party, the corporation, insisted upon the quarrying of the materials from certain quarries indicated in the contract and that it was not open to the assessee to produce material quarried from any other place. It was no doubt conceded that the quarries wherefrom the materials were to be collected were quarries which belonged to the assessee himself; but, nevertheless, since the contract contains certain specific terms, it should be construed, so it was argued, that it was a contract for the supply of labour and execution of certain works.

30. Dr. Pal submits that since it was conceded as a question of fact that the quarry in question belonged to the assessee himself, this case is of no assistance in deciding the question before me.

31. In my view, this contention of Dr. Pal is also sound and should be accepted. In the present case, there can be no manner of doubt that the river-bed from which the stones were collected as aforesaid never belonged to the assessee. The narrow question which falls for determination is whether by virtue of the payment of royalty to the Forest Department, Government of West Bengal, the petitioner became the owner of the stones in question. In view of the proposition of law laid down by the Supreme Court in the case mentioned above, it must be held that the payment of this royalty did not change the ownership of the property in question. As such the petitioner never acquired the property in the stones in question from the State of West Bengal which at all material times remained the owner thereof. As such, it must be held that the petitioner did not effect any 'sale' of these stones to the Public Works Department, Government of West Bengal, within the meaning of the Act.

32. Before I conclude this judgment, I must point out that Mr. Dutta for the respondents raised a contention that apart from the supply of stones, which are the subject-matter of challenge in this application, the petitioner also supplied certain other materials like pipes, etc., to the Public Works Department, Government of West Bengal, which are also the subject-matter of the impugned order of assessment and the impugned notices. Dr. Pal for the petitioner conceded that if there are supplies of any other materials apart from stones by the petitioner to the Public Works Department, Government of West Bengal, he could not contend that they were not liable to sales tax under the provisions of the Act. That being the position the best order in my view would be to send the case back to the Commercial Tax Officer for reassessment in the light of my observations indicated above.

33. This contention of Dr. Pal therefore succeeds.

34. On the day when the matter was set down for judgment, Mr. S. N. Dutta, the learned Advocate appearing on behalf of the State of West Bengal, wanted to raise certain objections as to the maintainability of this application on the basis of certain provisions of the Constitution (Forty-second Amendment) Act, 1976 (hereinafter referred to as the Amendment Act). Therefore, I set down the matter for further hearing and both parties made their submissions.

35. As I have already mentioned, the challenge in this rule is directed against an order of assessment dated 21st August, 1968, under Section 11(2) of the Act and certain notices issued by the Commercial Tax Officer, which have been mentioned in the petition.

36. Mr. Dutta drew my attention in the first place to Section 58 of the Amendment Act, Sub-section (1) whereof provides as follows :

(1) Notwithstanding anything contained in the Constitution, every petition made under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to in this Section as a pending petition) and any interim order (whether by way of injunction or stay or in any other manner) made on or in any proceedings relating to, such petition before that day shall be dealt with in accordance with the provisions of Article 226 as substituted by Section 38.

37. On the strength of this provision it was submitted that the present case is a case of a pending petition and, as such, it would be governed by the provisions of Article 226 as substituted by Section 38 of the Amendment Act.

38. Although some argument might have been advanced as to whether the present case is a case of a 'pending petition' as contemplated by Section 58 of the Amendment Act, Dr. Pal, appearing for the petitioner, fairly conceded that in view of the law as it stands and since I had not actually delivered judgment, it would be a 'pending petition' within the meaning of Section 58 of the Amendment Act. In that view of the matter, it is to be considered whether the present petition is maintainable by virtue of the substituted Article 226, which came into force and effect on 1st February, 1977.

39. With regard to the notices which are challenged before me in this application, Mr. Dutta submits that the challenge is not maintainable in view of the provisions of new Article 226(3) of the Constitution. Article 226(3) provides as follows :

No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.

40. According to Mr. Dutta, the petitioner has other remedy for redress of his grievances against the notice under the provisions of the Act. Mr. Dutta submits that the petitioner has his remedy against the notice under the provisions of Section 20(3) and (4) of the Act.

41. Section 20(3), in so far as it is material for our purpose, provides as follows :

(3)(a) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner may, on his own motion, revise any assessment made or order passed by a person appointed under Section 3 to assist him.

42. Section 20(4) provides as follows :

Subject to such rules as may be prescribed, any assessment made or order passed under this Act or the Rules made thereunder by any person appointed under Section 3 or Section 3A may be reviewed by the person passing it upon application or of his own motion and subject as aforesaid, the Tribunal may, in like manner and for reasons to be recorded, review any order passed by it, either on its own motion or on application,

43. It is to be noticed that both Sections 20(3) and 20(4) of the Act speak of 'assessment made' or 'order passed'. Clearly the impugned notices in the present case cannot be contended to be 'assessment made' within the meaning of the above Sub-sections and Mr. Dutta did not contend them to be so. He, however, contended that I should read the expression 'order passed' in a wide manner so as to include the notices which have been impugned in the present case. Mr. Dutta was, however, entirely unable to cite any authority for the proposition that the expression 'order' can mean notice.

44. Dr. Pal submitted that an 'order' connotes some formal determination of right or liability of a party. He submitted that a notice which is merely an intimation asking a person to show cause why something should not be done can by no stretch of imagination be called an order, which, according to him, means a determination.

45. I am unable to accept the contention of Mr. Dutta on this point. In my view, a notice cannot come within the expression 'order', which necessarily means a formal expression of some opinion or the determination of some right or liability affecting a party. A notice is clearly a communication to a party asking him either to show cause or to do something before an order is passed. In that view of the matter, the impugned notices cannot be said to be 'orders' made within the meaning of Section 20(3) or Section 20(4) of the Act. As such, it cannot be said that the petitioner has any other remedy for redress of his grievances against the impugned notices within the meaning of new Article 226(3) of the Constitution of India.

46. Before I leave this aspect of the matter, I must mention that it was brought to my notice that an identical question came up before M. N. Roy, J., in the case of Surja Mohan Chakraborty v. State of West Bengal [1977] 39 S.T.C. 462 [Civil Rule No. 7935(W) of 1972]. In that case, an identical contention was advanced by Mr. Dutta with regard to a notice issued under Section 7(4a)(i) of the Act demanding a certain sum as security. Dealing with the contention that such a notice amounts to an order, M. N. Roy, J., observed as follows :

The impugned notice, not being either an assessment or order, finally determining the rights of the said petitioner, is not revisable under those provisions and, as such, Mr. Chakravartty is right in his submissions that the present provisions of Article 226(3) would not be a bar in maintaining the petition, the more so when the impugned notice or order in annexure B would not come within the category of the orders as mentioned in the several clauses of Sub-section (3) and of Sub-section (4) of Section 20 of the said Act. Thus, the preliminary point as raised by Mr. Dutta fails.

47. I am respectfully in agreement with the decision of M. N. Roy, J., on the same question. I, therefore, hold that the impugned notices cannot be said to be in any way barred or affected by the provisions of Article 226(3) of the Constitution of India.

48. With regard to the order of assessment which has been challenged in the present case, Mr. Dutta again relied on the provisions of Article 226(3) of the Constitution of India and contended that the petitioner has other remedy by way of appeal, revision and review under the provisions of Section 20 of the Act. The proposition that an appeal lies from the impugned order of assessment and that it is capable of being revised or reviewed under the various provisions of Section 20 of the Act was not disputed by Dr. Pal. He, however, submitted that the bar created by Article 226(3) of the Constitution will not be a bar to challenge the order of assessment in the present case. In order to appreciate this contention it is necessary to set out Article 226(1), which was introduced by the Amendment Act. Article 226(1) is as follows :

(1) Notwithstanding anything in Article 32 but subject to the provisions of Article 131A and Article 226A, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,-

(a) for the enforcement, of any of the rights conferred by the provisions of Part III; or

(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, byelaw or other instrument made thereunder ; or

(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (b), where such illegality has resulted in substantial failure of justice.

49. Mr. Pal pointed out that the bar created by Article 226(3) of the Constitution of India only applies to any injury referred to in Sub-clause (b) or (c) of Clause (1) of that article. To put it differently, if the petitioner is seeking to enforce any of the rights conferred by the provisions of Part III of the Constitution of India, the provisions of Article 226(3) do not constitute a bar to such a petition.

50. The question, therefore, arises whether the challenge to the order of assessment in the present case can be said to be for the enforcement of any fundamental right conferred by Part III of the Constitution.

51. Dr. Pal submitted that the order of assessment is challenged on the ground that the transaction in question not being a 'sale' within the meaning of the Act, the order of assessment is entirely without jurisdiction. Consequently, it was submitted that by the order of assessment, which is impugned in the present case, the petitioner is sought to be deprived of his property without the authority of law within the meaning of Article 31(1) of the Constitution, which is one of the rights conferred by Part III thereof. I need not elaborately discuss this aspect of the argument because I have already found in the earlier part of my judgment that the transactions in question do not amount to a sale and are, therefore, not covered by the provisions of the Act. The question for determination now is whether the passing of such order would amount to deprivation of the petitioner's property without the authority of law, which would amount to contravention of Article 31(1) of the Constitution.

52. In developing his argument, Dr. Pal relied on Article 265 of the Constitution, which provides as follows :

No tax shall be levied or collected except by authority of law.

53. Dr. Pal submitted that the assessment in question is clearly in contravention of Article 265 of the Constitution of India as by the impugned order of assessment tax is being sought to be levied and collected without any authority of law as according to my finding the transactions do not amount to a 'sale' within the meaning of the Act.

54. My attention was drawn in this connection to a decision of the Supreme Court in the case of Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras A.I.R. 1971 S.C. 870. Hidayatullah, C. J., who delivered the judgment on behalf of the majority of the learned Judges of the Supreme Court, observed in paragraph 1 of the report as follows :

These are petitions under Article 32 of the Constitution by the Coffee Board, Bangalore, directed against the Joint Commercial Tax Officer, Madras and the State of Tamil Nadu questioning the demand of sales tax on certain transactions of sales, which the Board claims are sales in the course of export of coffee out of India and thus not liable to sales tax. A preliminary objection was taken at the hearing that the petition do not lie since no question of fundamental right is involved.

55. In the Supreme Court, reliance was placed on behalf of the respondents on the case of Ramjilal v. Income-tax Officer, Mohindargarh [1951] 19 I.T.R. 174 (S.C.). Hidayatullah, C. J., at paragraph 10 of the report quoted the relevant portion of the judgment in Ramjilal's case2 mentioned above, which is as follows :

In our opinion, the protection against the imposition and collection of taxes save by authority of law directly comes from Article 265 and is not secured by Clause (1) of Article 31. Article 265 not being in Chapter III of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under Article 32.

56. Thereafter Hidayatullah, C. J., goes on to observe that the above proposition was not accepted by the majority in Ujjam Bai's case3. In Vjjam Bai's case [1963) 1 S.C.R. 778, it was observed as was noted in paragraph 11 of the report of the judgment of Hidayatullah, C. J., as follows :

If by these observations it is meant to convey that the protection under Article 265 cannot be sought by a petition under Article 32, I entirely agree. But if it is meant to convey that a taxing law which is opposed to fundamental rights must be tested only under Article 265, I find it difficult to agree. Articles 31(1) and 265 speak of the same condition.

57. Thereafter Hidayatullah, C. J., sets down the two articles and notes the similarity therein. At paragraph 13 of the report, Hidayatullah, C. J., observed as follows:

Das, J., (Sarkar, J., concurring) put the same thing differently. He observed that 'if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collateral fact and the resultant action threatens or violates a fundamental right, the question of enforcement of that right arises and a petition under Article 32 will lie'. He added that 'where a statute is intra vires but the action taken is without jurisdiction, then a petition under Article 32 would be competent'. Similar observations are to be found in the opinion of Kapur, J. Therefore, the majority view considered that a breach of fundamental right guaranteed by Article 32(1) is involved in a demand for tax which is not leviable under a valid law.

58. The above decision and the various decisions of the Supreme Court mentioned therein, in my view, seem to be an authority for the proposition that when a taxing authority acting under a statute which may be intra vires the Constitution of India makes a demand of a tax which is not leviable under that statute, such a demand amounts to a deprivation of property without the authority of law within the meaning of Article 31(1) of the Constitution. Unless their Lordships came to that view the application of the Coffee Board under Article 32 of the Constitution before the Supreme Court could not have been held to be maintainable as Article 32 can be invoked only for enforcing the fundamental rights guaranteed in Part III of the Constitution.

59. As I have already indicated, I have come to the conclusion that the transactions in the present case did not amount to a 'sale' within the meaning of the Act and, as such, no sales tax is leviable under the law in respect of those transactions. That being the position, it must be held on the basis of the proposition laid down by the Supreme Court in the case of Coffee Board v. Joint Commercial Tax Officer A.I.R. 1971 S.C. 870, that by virtue of the impugned order of assessment, the respondents are seeking to levy a tax which is not leviable in law. In that state of affairs, it must be held that the petitioner is being sought to be deprived of his property without the authority of law within the meaning of Article 31(1) of the Constitution of India. As such, the present application must be held to be for the enforcement of a right conferred by the provisions of Part III of the Constitution of India and, as such, comes under Article 226(1)(a) of the Constitution. Consequently, the bar imposed by Article 226(3) of the Constitution cannot be invoked by the respondents in the present case challenging the maintainability of the application against the order of assessment. This contention of Dr. Pal, therefore, succeeds. Dr. Pal further submitted that the remedy contemplated in Article 226(3) of the Constitution must be equally efficacious, speedy and adequate. This argument was based on the expression 'any other remedy for such redress' contained in Article 226(3) of the Constitution. Dr. Pal stressed the fact that the expression was not 'any remedy' but 'any other remedy'. According to this submission, some meaning has to be given to the expression 'other', which can only mean, according to Dr. Pal, an equally effective and adequate remedy. He submitted that in a fiscal statute, where, before an appeal can be heard, the petitioner has to pay the tax demanded by the order under appeal, it cannot be held to be 'any other remedy' as contemplated by Article 226(3) of the Constitution.

60. Having regard to my findings on the other points as to the maintainability of this application, I do not feel inclined to express any final opinion on this particular argument of Dr. Pal. The meaning of 'any other remedy' in Article 226(3) of the Constitution of India may be ascertained and decided in an appropriate case in future.

61. In the result, this application succeeds and the rule is made absolute.

62. There will be a writ in the nature of certiorari quashing the order of assessment dated 21st August, 1968 and the order dated 1st June, 1968 and a writ in the nature of prohibition restraining the respondents from giving effect to the said order and the notice dated 5th June, 1968 and all proceedings thereunder for the period from 1st April, 1962, to 31st March, 1963 and for the period from 1st April, 1967, to 31st March, 1968.

63. The matter will now go back to the respondents to be decided according to law in the light of my observations indicated above. There will be no order as to costs.

64. The operation of this order is stayed for a period of four weeks from date. Any further extension must be obtained from the appeal court.


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