TMI Blog1954 (3) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... aksha, Agent, for the Intervener. N.P. Engineer, Senior Advocate (R.S. Dabir and I.N. Shroff, Advocates, with him), for the appellant. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN, J.- This is an appeal by leave from a judgment of the High Court of Judicature at Nagpur dated the 25th of April, 1952, dismissing a petition under Article 226 of the Constitution of India filed by the appellant questioning the vires of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947. The appellant represents a concern C. Parakh and Company (India) Limited, a company registered under the Indian Companies Act, 1913, having its head office at Bombay, and several branches in the State of Madhya Pradesh. The mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at Nagpur praying for an appropriate writ or writs which may secure to the company protection from the impugned Act and its enforcement by the State. It was alleged that Explanation II to Section 2(g) of the Central Provinces and Berar Sales Tax Act, 1947, as further amended by Act XVI of 1949 was ultra vires and illegal. This petition, along with a reference in another case (Miscellaneous Civil Case No. 258 of 1951: A.I.R. 1952 Nag. 378; 3 S.T.C. 343),* was heard by a Division Bench of the Nagpur High Court and it was held that Explanation II to Section 2(g) of the Act was not enforceable because under the Constitution sales tax could only be collected in the State where the goods were delivered for consumption. It was further held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumption the decisive factor for determining which State should have the right of taxing such sales, and having thus found the provision of the Explanation to the definition of "sale" unconstitutional, should have issued a writ of mandamus restraining the respondent State from enforcing that part of the Act. To appreciate the contentions of the learned counsel it is necessary to set out the relevant provisions of the Act which the High Court has declared ultra vires the State Legislature. Act XXI of 1947 defines the expression "sale" in Section 2(g) of the Act in these terms: "'Sale' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then, if the goods are actually produced or found in this Province at any time after the contract of sale or purchase in respect thereof was made." Certain amendments were made in the Act by Act IV of 1951 which came into force on the 1st of April, 1951, but these are not relevant to the present inquiry. As pointed out above, the High Court held that the new Explanation II was ultra vires the State Legislature and that the mere production of goods was not enough to make the tax payable unless the goods were appropriated to a particular contract. The correctness of this view can no longer be questioned by reason of the majority decision of this Court in The State of Bombay v. The United Motors (India) Ltd. [1953] S.C.R. 1069; 4 S.T.C. 133. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not to be allowed to be used for evading the provisions of the Act, especially a fiscal Act. It was also said that the conditions requisite for the issue of a writ of mandamus were not present in the case and that it was not within the scope and purpose of Article 226 of the Constitution to decide an academic question. In our opinion, the contentions raised by the learned Advocate-General are not well founded. It is plain that the State evinced an intention that it could certainly proceed to apply the penal provisions of the Act against the appellant if it failed to make the return or to meet the demand and in order to escape from such serious consequences threatened without authority of law, and infringing fundamental rights, relief by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226. Moreover, the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy. For the reasons given above, we are of the opinion that the High Court, having held that Explanation II to Section 2(g) of the Act was ultra vires, was in error in dismissing the application on the ground that it was not entitled to relief under the provisions of Article 226 of the Constitution. In the result therefore we allow this appeal with costs and direct an appropriate writ to issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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