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TMI Blog1965 (1) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... the account books of the petitioners were with the Sales Tax Authorities of Bombay, they could not furnish the returns. For the two years in question, the Deputy Commercial Tax Officer made assessments on a best of judgment basis, fixing the turnover for the two years at Rs. 15 lakhs and Rs. 7 lakhs respectively. The petitioners preferred appeals. By this time, the account books had been returned to the party by the Sales Tax Authorities of Bombay, and on the basis of those accounts, the Appellate Assistant Commissioner accepted the returns of the petitioners and fixed the turnover at Rs. 5,72,000 for 1954-55 and Rs. 2,06,000 for 1955-56 up to the 6th of September, 1955. Shortly thereafter, the decision of the Supreme Court in the Bengal I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance in all cases, expect those in which non-resident dealers had not collected the tax or had collected and refunded it. " It may be mentioned here that the Sales Tax Laws Validation Ordinance of 1956 had been passed validating the collection of sales tax on inter-State sale transactions up to 6th September, 1955, the date of the judgment of the Supreme Court in the Bengal Immunity case[1955] 6 S.T.C. 446. The government order in question had been issued with a view to give relief to dealers who might not have collected sales tax on inter-State sale transactions, or who, after such collection, might have refunded it. The petitioners' claim that their case came within the purview of the above government order and that they should not be ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory proof of having refunded the amounts of tax collected by the petitioners was not produced is wholly erroneous. In so far as the Board was concerned, the petitioners were not called upon to produce any proof before it. It was also alleged that the very books upon which the turnover had been computed contained evidence of the refund of the tax collected and that the Appellate Assistant Commissioner refused to look into those parts of those account books in deciding against the petitioners. The question that is before me is whether this Court cannot issue a direction to the Sales Tax Authorities to give effect to a government order in the matter of assessment and levy of sales tax. The position is somewhat like this. The Madras General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales tax on interState transactions validated by the Ordinance. The government order accordingly directed the subordinate assessing authorities not to assess to tax non-resident dealers who fell within the category indicated above. That the Board did not deal with the question on merits is clear. It is not in dispute before me that the Board did not call upon the petitioners to produce any documents or records in order to prove that the case of the dealers fell within the purview of the government order in question. The contention of the Board that since the matter was disposed of on merits and the Board was satisfied that there was no acceptable evidence in support of the petitioners' claim is certainly untenable. The order of the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal had applied the provisions of the Act, and not whether it should have applied any executive direction of the Government. In dealing with the present matter, I am not considering the impact of the provisions of the Sales Tax Act. I am called upon to examine whether, when the State in the exercise of its lawful authority had granted a particular concession and had issued instructions to the subordinate authorities to give effect to the terms of the government order, it is open to the subordinate authorities to refuse to give effect to or misapply those directions. While the case I have referred to above was one which went upon an examination of the provisions of the Sales Tax Law, I am dealing in the present instance with the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner had no statutory right. This contention was repelled in the following words: "Here the Commercial Tax Officer is not exercising any independent or statutory jurisdiction of his own. He as a subordinate of the Government was directed to do a public duty, and if he failed to do that duty on a misapprehension of the scope of the very direction given to him, it should be open to this Court to issue the appropriate writ. " The principle followed was that where a public authority has been directed by a superior authority to perform a particular act, the refusal by that public authority to perform that act is capable of correction in the writ jurisdiction of this Court. The learned Judges refers to an earlier Bench decision in W.P. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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