TMI Blog1948 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... r under the Act, but the plaintiff denied that he was a dealer within the meaning of the Act. The Superintendent of Commercial Taxes, Darbhanga Circle, however, called upon the plaintiff to produce the papers by his notice dated the 1st June, 1945, apparently under Section 9 of the Act. The plaintiff again denied his liability to furnish the returns or produce the papers, and accordingly the plaintiff served a notice dated the 20th of June, 1945, on the defendant, who is the Province of Bihar, requesting the Superintendent for the withdrawal of the aforesaid notice. As the Sales Tax Officer appeared to be unwill- ing to withdraw the notice, the plaintiff instituted the suit giving rise to this appeal on the 7th of September, 1945, for the following reliefs: That a declaration be made in the plaintiff's favour that he is not a dealer under the Sales Tax Act and so need not get himself registered under the Act and is not liable to assessment of sales tax; and that a permanent injunction be granted restraining the defendant from ever pro- ceeding with the assessment and realising any tax under the Sales Tax Act from the plaintiff. The suit was valued at Rs. 5,001. The defendant's co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have no jurisdiction to do what they did. They would then have done all that was entrusted to them under circumstances when that jurisdiction which was to be entrusted to them did not exist-the preliminary facts did not exist; but they had not to decide upon the preliminary facts, they had no jurisdiction to decide upon the preliminary facts; but there is another state of things. The Legisla- ture may, if the matter will present some doubt, entrust them not with two jurisdictions, in my opinion-with one jurisdiction-but a jurisdiction which comprises and includes two sets of facts. They have the jurisdiction given to them to decide whether the preliminary set of facts exist, which, if they do exist, will entitle them to go farther, and to do something more. If the Legislature gives them that, I do not call it a double jurisdiction, but that comprehensive jurisdiction, it is all one jurisdiction. They have jurisdiction with regard to what you may call the preliminary facts, the first set of facts-the same jurisdiction and just as much jurisdiction as they have with regard to the second. When the Legislature gives to an inferior body of any kind by Act of Parliament for the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Legislature intended that the assessment of the assessors appointed by the Commissioners should be final and conclusive, unless appealed from in the first place, to the Commissioners, and further, if necessary, to the Judges of the superior courts", and a little later he added: "Without referring to the Statutes, I should say, a priori, that the object of the Legislature was to make the decision of the assessor final and binding, unless disputed in the manner pointed out. " Avory, J., in the agreeing judgment refers to the above quotation from Esher, M.R. I have, however, come across some cases in the English courts where writs of prohibition have been issued, e.g. The King v. The Kensington Income Tax Commissioners(3). See also House of Lords The King v. The Kensington Income Tax Commissioners(4). In Rex v. Inspector of Taxes for Parish of Kingsland(5), a notice was issued to the General Commissioners and the Inspector of Taxes to show cause why a writ of prohibition should not issue, prohibiting them from proceeding with the additional assessments, like Section 34 proceeding in India. Lush, J., observed at page 330: "I wish to preface what I am about to say by pointing out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess or occupation was such as to satisfy them that it came within Section 39. But in many cases it is quite impossible for them to have this previous knowledge. How without investigation of the books on the subject or information supplied by him could they, for instance, say what amount of capital was required for the purpose of his profession, or whether his profits are de- pendent mainly upon his personal qualifications, or whether his business is that of an agent whose remuneration consists wholly of a fixed sum (1) (1919) 12 Tax Cas. 166. not dependent on the amount of business done or any other contingency, or whether he takes commissions? The Legislature in passing this Act can hardly have contemplated that questions of this kind were to be removed from the consideration of the Commissioners, who are the appropriate body for the purpose of investigating facts of this description. Nor can it be said that the question in this case can only be determined in an action of this sort. The plaintiff might have followed the course which has been accepted in other cases. He might have made a return and at the same time raised the question whether he was chargeable at all under the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he liability of Mr. Caesar Schlesinger to pay income-tax depends is a question of the kind which, in the clearest terms, the Legislature has appointed the General Commissioners of Income Tax to determine." Avory, J., in a concurring judgment adopted a passage from the judgment of Lord Chancellor, Lord Selborne in the case of the Denaby Main Colliery Company(1) that the Railway Commissioners "have acted within their jurisdiction. They have not done anything which is shown to be prohibited by any law or statute, and they have not omitted anything which is shown by any law or statute to be made a condition of the exercise of their jurisdiction." The most recent pronouncement of the Judicial Committee in Raleigh Investment Co., Ltd. v. Governor-General in Council(2) is probably a settler of this question. It was decided that where the Act (Income- tax Act in that case) provides a complete remedy a civil suit is not maintainable, even if the officer violates the provisions of this Act. Applying this to the present case the assessee has a complete remedy under the provisions of the Sales Tax Act and, therefore, no relief should be granted to him in the civil suit. There is a most exhaust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 16 Vict. c. 86, which is similarly worded, has received from the English Courts. In the last of these decisions the English and Indian cases on the subject were reviewed, and it was laid down that a declaratory decree ought not to be made unless there is a right to some consequential relief which, if asked for, might have been given by the Court, or unless in certain cases a declaration of right is required as a step to relief in some other Court. (Kathma Natchier v. Dorasinga Tever(2)". See also Fischer's case(3) and Sheoparsan Singh's case(4). In this case Sir Lawrence Jenkins pointed out that the plaintiff coming under Section 42, Specific Relief Act, must be entitled to a legal character or to a right as to property. The plaintiff in the present case does not ask for any declaration of any right; but he asks for a declaration that he is not a dealer, and therefore, cannot be assessed by the Sales Tax Authority, i.e., the require- ments of Section 42 are not satisfied. But this is an appealable case and we are bound to give our finding on the question whether the plaintiff is a dealer or not within the meaning of the Sales Tax Act. Now the word "dealer" is defined in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brown v. Watt(1), a seed merchant took a farm and worked it in connection with the business which was that of selling the seeds. Their Lordships pointed out that there may be engrafted upon that, no doubt, as in many cases there is, the occupation of producing that which the merchant sells, and then he is a manufacturer as well as a merchant, and in such a case the occupation which he was carrying on at the farm is really the manufacturing of seeds to be used in his business. It will be noticed that the business existed apart from the farm operations. In the present case before me all that I find is that the plaintiff owns agricultural zirat lands which he cultivates and from which he produces the goods. This is one operation. Now he (1) (1806) 2 Tax Cas. 143. cannot consume all the goods and he must sell the excess if he does not require all for his own consumption. How can the mere fact of selling the excess make the plaintiff carry on a business of selling the produce? See the case of Kokine Dairy, Rangoon(1), where a dairy business was being carried on by an assessee owning agricultural lands. In the Privy Council case of Commissioner of Income-tax, Madras v. Diwan Bahadur S.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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