TMI Blog1952 (4) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... is State, but in the matter of sales tax, the company is registered in Buldana district and all returns in respect of sales tax are made to the Sales Tax Officer, Buldana (non-applicant No. 2). 3.. The petitioner states that he buys raw cotton and gets it ginned and pressed and keeps it in stock to be sent to the head office at Bombay or to such other places under the directions of the head office as may be necessary. When cotton was declared liable to sales tax, the petitioner paid the tax on sales of cotton up to 31st December, 1950. 4.. The petitioner states that the head office of the petitioner's firm at Bombay sells cotton bales to mills and individuals under the control of the Textile Commissioner at Bombay and that on the com- p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to pay the sales tax upto that date. Apprehending that he would have to pay the tax for the quarter ending 31st March, 1951, he filed the present peti- tion for a writ of prohibition against the above-named non-applicants to restrain them from enforcing against him the provisions of the C.P. and Berar Sales Tax Act, 1947, and in particular, the explanations to the definition of "sale" contained in Section 2(g) of the Act, together with the amended explanations introduced by the C.P. and Berar Act No. XVI of 1949. 8.. The petitioner admitted that he has not yet filed his return for the quarter ending 31st March, 1951, during which period transactions of the value of Rs. 32,52,940-13-3 had been entered into. He states that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petition is premature because no action has so far been taken against the petitioner and no tax has been demanded from him. It is further contended that even if the tax had been demanded, the peti- tioner had ample remedies by way of appeals and revisions and by asking for a reference of the matter to the High Court under the Act itself. The petitioner has forestalled all this by rushing to the High Court under Article 226 of the Constitution for a writ of prohibition, which cannot be issued in such circumstances. On the question of the vires of the legislation, the return joins issue and avers that the legislation is perfectly valid. 11.. In answer to the return, the petitioner filed a further affida- vit stating that the consistent vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Honourable the Chief Justice had asked for a reference in another case on certain questions by the Board of Revenue and that the questions common to both these cases were likely to arise. At the request of counsel, we waited to see whether the case would be referred to the same Bench or not and when it was, we heard arguments afresh in the two cases because the other case was concerned with the unamended Explanations and the present case with the Explanations as amended. Shri Engineer was also present and at his request we heard some addi- tional arguments, particularly in relation to Article 286 of the Constitu- tion to which we need not refer in the present case, because our decision will appear from the other case. 14.. While we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en laid down in several cases that a mandamus should not be issued in such circumstances. 16.. The offer of the petitioner to deposit the entire tax does not alter the position. There is a machinery provided in the Act itself (see M.C.C. No. 258 of 1951* decided today), under which the petitioner after making his return can urge that he is not liable for the tax and if the taxing authority does not agree he can appeal against the decision and also move this Court ultimately. Article 226 of the Constitution is not enacted to negative all existing procedure and law and whatever may be done in an urgent case involving fundamental rights (where other remedies become ineffective due to delay or otherwise) is not appro- priate in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
