TMI Blog1962 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... DAYAL JJ. R.J. Kolah, Advocate, and J.B. Dadachanji, O.C. Mathur and Ravinder Narain, Advocates of J.B. Dadachanji Co., for the petitioners (in both the petitions). C.L. Daphtary, Solicitor-General of India (R. Gopalakrishnan and P.D. Menon, Advocates, with him), for the respondents. -------------------------------------------------- The Judgment of the Court was delivered by SARKAR, J. -These are two petitions, under Article 32 of the Constitution asking for writs to quash certain assessment orders imposing sales tax and for consequential reliefs preventing the levy and collection of that tax. The petitioners allege that the assessment orders are wholly void and therefore affect their fundamental rights unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere taxed under the 1948 Act and those that took place between October 1, 1957 and March 31, 1958, under the 1957 Act. Both the assessment orders are challenged by the petitioners. The tax was levied under State laws. Now Article 286(2) of the Constitution as originally framed laid down that except in so far as Parliament by law otherwise provided, a State could not pass a law taxing an inter-State sale or purchase. This provision was deleted by the Constitution (Sixth Amendment) Act, 1956, which came into force on September 11, 1956. The Constitution (Sixth Amendment) Act also amended Article 269, the relevant portion of which after such amendment reads as follows: Article 269(1)-"The following duties and taxes shall be levied and coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale as defined in section 3 of the Central Sales Tax Act. That section defined an inter-State sale in two ways, one of which is in these terms: "A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase-(a) occasions the movement of goods from one State to another." The petitioners contend that the disputed sales were of this variety and the respondents, therefore, could not tax them. The question then is, did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition. In Tata Iron and Steel Co., Ltd. v. S.R. Sarkar [1961] 1 S.C.R. 379, 391; 11 S.T.C. 655., it was held that a sale occasions the movement of goods f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... named in it. We are concerned with sales in which the permits required supplies to be made from factories outside Mysore. These permits were issued to the purchasers and the supplier named in them was the Marketing Company. On receipt of the permit the purchaser placed an order with the Marketing Company and later a firm contract with it was made. In making the orders of assessment, the Taxing Officer observed that the firm contracts did not provide for any supplies being made from any particular factory and the supplies had actually been made from factories outside the State of Mysore only to suit the convenience of the supplier, the Marketing Company, and not because of any covenant in the contracts. It is true that the written contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk that that case is clearly distinguishable. Das, J., there stated 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 also said that where a statute is intra vires but the action taken is without jurisdiction, then a petition under Article 32 would be competent. That is the case here. There is no dispute that the Taxing Officer had no jurisdiction to tax inter-State sales, there being a constitutional prohibition against a State taxing them. He could not give himself jurisdiction to do so b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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