TMI Blog1966 (5) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt books, sales tax registers and other papers before him for enabling him to assess sales tax on them for 1953-54, 1954-55 and for the period between 1st April and 6th September, 1955. They did not obey the notices and filed writ petitions in this Court. In the petitions they challenged the competence of the Sales Tax Officer to proceed to assess them to sales tax on several grounds. The learned Judge accepted their contention and accordingly quashed the notices. Before us counsel for the respondents has sought to support the judgment of the learned Judge on two grounds. Firstly, it is said that Sri Musharraf Husain was not competent to issue notices to them. Secondly, it is contended that they were not dealers and could not therefore be assessed to sales tax. The first argument is double-barrelled. Firstly, it is contended that the notification appointing Sri Musharraf Husain as an assessing authority is ineffective. The notification is annexure E to the counter-affidavit of Sri Musharraf Husain. It was issued by the State Government on 6th February, 1957. It states that Sri Musharraf Husain is appointed as an assessing authority "with coextensive jurisdiction extending ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidation Act. The surrounding circumstances clearly evince this intention. It is our duty to so construe the notification as to give effect to this unambiguous intention of the State Government with the help of the maxim ut res magis valeat quam pereat. We would accordingly read the notification as appointing Sri Musharraf Husain as an assessing authority for the levy and collection of sales tax in terms of the Sales Tax Laws Validation Act, 1956. If the notification is so read, as, in our view, it should be, then the argument regarding its ineffectiveness could not succeed. The next part of the first argument is that the notification is issued in contravention of rules 3, 3A and 6 of the Sales Tax Rules made under the U.P. Sales Tax Act. Rule 2(c) defines a circle as a Sales Tax Circle notified under rule 3(a). Rule 2(h) defines the Sales Tax Officer as a Sales Tax Officer of a certain circle appointed by the State Government to perform the duties and exercise the powers of an assessing authority in such circle. Sub-rule (1) of rule 3 provides that the State Government may fix the limits of a circle and appoint officers to circles. Sub-rule (2) states that where there are more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a person directly as an assessing authority over any part or the whole of the territory of the State. Even if there is inconsistency between the rules and section 2(a), the latter would prevail and preserve the power of the State Government to appoint a person directly as an assessing authority over a part or the whole of Uttar Pradesh. We are, therefore of opinion that the notification does not contravene the rules and is not invalid. On the view that we are taking regarding the validity of the notification the subsidiary argument of the respondents based on rule 6(c) would also fail. It was pointed out that Sri Musharraf Husain could not issue the first notice dated 26th December, 1956, because on that date the State Government had issued no notification appointing him as an assessing authority over the whole of Uttar Pradesh. That is true, but there is no such flaw in the second notice of 2nd March, 1957. The second main argument is that the respondents were not dealers. This argument was accepted by the learned Judge. To establish this argument they had described the modus operandi of their business in their petitions. It was this: They were commission agents. The princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it jurisdiction, the Court may in a suitable case interfere at the threshold of the enquiry. But these cases are not of that type. Here there is some evidence which would prima facie indicate that Sri Musharraf Husain has jurisdiction to issue notices to the respondents. The respondents were registered as dealers under section 8A of the U.P. Sales Tax Act for the years 1953-54 and 1954-55. Their applications for registration are annexures A and B to the counter-affidavit. The applications were made to the Sales Tax Officer, Calcutta Circle. The applications declared that their "estimated turnover for the assessment year" ending 31st March, 1954, and 31st March, 1955, is not less than Rs. 15,000. It is further stated therein that the information given in the application was true and complete to the best of their knowledge and belief. These are their own admissions that they were dealers. Then the record also bears out that M/s. Duli Chand Kashi Prasad sent a crossed cheque for Rs. 500 on 2nd March, 1955, in part payment of sales tax dues for the period between 1st October and 31st December, 1954. No doubt, they had sent the cheque with a protest. In the other case, M/s. Behari Lal H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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