TMI Blog1957 (3) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the provisions of section 4(1), must get himself registered and obtain a registration certificate. The certificate is granted under section 7(3). So far as is material, that section provides that when granting the certificate, the prescribed authority "shall specify the class or classes of goods for the purposes of sub-clause (ii) of clause (a) of subsection (2) of section 5" in the certificate itself. Sub-clause (ii) of clause (a) of sub-section (2) of section 5 provides for the exemption of certain sales from the liability to sales tax, but the provision contained in roundabout character. The whole of section 5(2) is concerned with the computation of the taxable turnover and the provision contained in sub-clause (ii) of clause (a) of the sub-section is that in computing the taxable turnover of a dealer, sales made by him to a registered dealer "of goods of the class of classes specified in the certificate of registration of such dealer, as being intended for re-sale by him, or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract" shall be deducted from his gross turnover. Since that portion of the gross turnover which is cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking an entry in a registration certificate under section 7(3) regarding goods which come within section 5(2)(a)(ii), adds a further condition that, in the case of every sale, the goods purchased must be certificated by the purchasing dealer as required for one or other of the uses contemplated by the Act. The appellant company was registered in 1941 and obtained its registration certificate on the 29th of September of that year. Among the goods specified in the certificate under section 7(3) were "building or plumbing materials, or fixtures required for construction, fitting out or repair of any building." This entry was made under number (iii), other goods similarly specified being assigned earlier numbers under the general heading (a) and there being also certain goods specified immediately after the general heading without any sub-heading by means of any numeral. The entry to which I have already referred was supplemented by another made on the right side which reads as follows: "Certified by the purchasing dealer to be required for use in any process in the manufacture of pig iron, blast furnace and coke oven by products, iron and brass castings, steel and timber components ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry No. (a)(iii) was deleted. Subsequently, by a letter dated the 19th of March, 1955, the Commercial Tax Officer informed the appellant company of the amendment made. On the 10th of June, 1955, the appellant company filed an application for revision before the Assistant Commissioner of Commercial Taxes under section 20(3) of the Act. It was complained that the appellant's letter of the 12th of March had not been replied to and it was prayed that the order of the Commercial Tax Officer might be annulled. Five grounds were taken in the application, but by them it was only urged that the amendment had been illegal, inasmuch as section 5(2)(a)(ii) of the Act did not require that the goods concerned should be used in the manufacture of goods for sale "directly" and that there was no reason to withdraw the exemption which had been enjoyed for thirteen years. An allegation of a breach of rule 79 of the Bengal Sales Tax Rules, 1941, was undoubtedly made, but it was not relevant at all, because the rule deals with only appeals, revisions or reviews and not with proceedings in the first instance. The grounds taken in the petition were supplemented by three further grounds taken by a letter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th of September, 1955, and sent it to the appellant company by a special messenger. As he says that he issued his letter and sent it by a special messenger "immediately on receipt of the letter of Messrs. Orr, Dignam Co. dated 5th September, 1955", it is reasonable to hold that the letter of the solicitors did not reach him on the 5th, but reached him on or about the 9th. By his letter, the Commissioner asked the appellant company to send an authorised representative on the 20th of September next when the question of the alleged amendment of its registration certificate would be considered by him. In the meantime, however, other things had happened. It appears that after sending the letter, to which I have just referred, to the Commissioner on the 5th of September, 1955, the appellant company had an application under Article 226 of the Constitution, addressed to this Court, made ready and affirmed on the very next day. The affirmation at the bottom of the application out of which the present proceedings have arisen shows that the application was affirmed by one F.G. Liversedge, a director and the principal officer of Martin Burn Limited, Managing Agents of the appellant company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rule. It was said that since the amendment of the certificate had been made without hearing the appellant company and without giving it any opportunity for making representations as to why such amendment should not be made, there had been a violation of the rules of natural justice. The learned Judge had no difficulty in disposing of that complaint and he did so by simply pointing out that ample opportunity had been given to the appellant to be heard. It was next argued that section 7(4) of the Act, under which the amendment had been made, was ultra vires, because it conferred upon the Commissioner or officers, to whom he might delegate his functions, an arbitrary power of amending the certificate from time to time. Sinha, J., repelled that ground as well and pointed out that the power of amendment conferred by the section was by no means arbitrary, but was circumscribed on all sides by safeguards, both in the nature of several requirements to be satisfied before an amendment could be made and in the nature of provisions for revision by higher authorities. It was lastly argued that section 7(4) had been wrongly applied to the case and the amendment had been wrongly made. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd notified the date on which the application for revision would be heard and did not mention that it had not appeared before either officer, but said, on the other hand, that the amendment had been made without hearing it or without giving it any opportunity for making any representation, the meaning which it wanted to convey to the Court must have been that although the appellant was present, the order was made without listening to it at all and without permitting it to make any representations. If that indeed was the meaning sought to be conveyed-and I cannot put any other construction on the application-what was stated to the Court was obviously not the truth, but the reverse of the truth which was calculated to mislead the Judge's mind. The statement that the amendment was made without hearing the appellant and without giving it any opportunity for making representations is contained in paragraph 6 of the application and repeated in a way in paragraph 15. The affirmation with regard to paragraph 6 is that the statements contained therein are based on information derived from records kept at the office of the appellant. Whether or not the appellant was given a hearing or afford ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular date and in spite of being so informed, he does not care to appear and then he approaches a higher Court for relief against the order passed against him and on being notified of the date on which his application would be heard, again fails to appear and the decision goes against him, it can hardly lie in his mouth to say that he had been given no hearing and had been denied natural justice. If, to make matters worse, he comes to the Court and makes a statement on oath in those circumstances that the order had been made against him without giving him any hearing and without giving him any opportunity for making any representation, he does not pursue a course of con- duct which entitles him to any consideration at the hands of a Court, approached for relief by means of a writ. Writs are extraordinary remedies and relief by way of the issue of one or the other of writs is not to be sought for except on statements made to the Court with the utmost fullness and candour. If, in the application made to this Court, the appellant had stated that neither before the Commercial Tax Officer, nor before the Appellate Assistant Commissioner had it appeared, it is extremely doubtful whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternative remedy is not an absolute bar to the maintenance of an application under Article 226, but it seems to me that if a party has chosen to betake itself to the alternative remedy provided by the relevant statute itself, it cannot possibly be allowed to abandon that remedy in the middle of the way, as it were, and elect to proceed from that point of the road by way of Article 226. The position becomes worse when the fact that the party had gone to a tribunal provided by the relevant statute and that the matter was still pending decision before it, is not disclosed to the Court. Ordinary laws of the country, ordinarily speaking, themselves provide remedies to parties who may require to enforce their rights or seek relief against liabilities created by such laws. If the aid of a Court or a tribunal is required in respect of such laws, the parties must, ordinarily speaking, seek them in the various Courts and tribunals administering the ordinary laws in the ordinary way. They will be justified in coming to the High Court and invoking its extra- ordinary jurisdiction under Article 226, only when there is either no alternative remedy at all or the alternative remedy is bound, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officers of the State and a certain Departmental Circular had been issued. The appellant was still withholding from the Court the information that it had been an applicant before the Commissioner and that the application was pending on the date on which it had made its application to this Court. To us it was said by Mr. Das that the letter of the 5th of September, 1955, was only the usual demand for justice, but if that was so, one would expect a pleading to that effect in the application and a statement that although justice had been demanded by a letter dated the 5th of September, 1955, none had been accorded and consequently justice had been refused. All that is stated in the application about the demand of justice is contained in paragraph 24 which simply says that "in spite of demands the respondents have denied the petitioner justice". In my opinion, the second ground on which the appellant's application was liable to be dismissed forthwith was that it had itself made an application before the Commissioner of Commercial Taxes and had come to this Court before that application had been disposed of, not to speak of the further impropriety of making no mention of that applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y powers on the Commissioner of Commercial Taxes or persons to whom he may delegate his functions, it exposes all registered dealers equally to the arbitrariness of his decisions. The section makes no discrimination as between registered dealer and registered dealer and, therefore, it cannot be said that by its provisions equals are treated unequally. Nor do I see that Article 19 is any way infringed on. The only relevant clause of sub-article (1) of that Article is clause (g) which deals with the right "to practice any profession or to carry on any occupation, trade or business." It was said that the section authorises the Commissioner to withdraw an exemption by amending a registration certificate and since he could do so at his pleasure, it imposed an unreasonable restriction on the pursuit of trade. Sinha, J., has already pointed out that the Commercial Tax Officer, who exercised the power of amendment in practice, was not empowered by section 7(4) to amend a certificate at his pleasure. Various requirements had to be complied with and if he went wrong, there were two authorities above him who could correct his error. Since we are considering the validity of the section, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the application of section 7(4) to the facts of the present case. His contention was that under section 7(4) the Commissioner could amend a certificate in accordance with information furnished under section 16 or information otherwise received, but if he acted not in accordance with such information but on the other grounds, he would not be acting within the limits of his power, as given to him by the section. It does not appear that this ground was taken before the learned trial Judge, but apart from that, I am unable to see how Mr. Das could possibly establish on what information or grounds the Commercial Tax Officer or the Assistant Commissioner of Commercial Taxes had in fact proceeded. Even assuming, as Mr. Das contended, that the information "otherwise received" must be information of the nature described in clauses (a), (b) and (c) of section 16, we ourselves have been given no information by the affidavits that such information was not in the possession of the taxing authorities. The appellant's affidavits with regard to this matter are again vitiated by obvious inaccuracy. It was stated in paragraph 14 of the application that the amendment had been made by the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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