TMI Blog1964 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... nts praying for writs of certiorari or other appropriate writs quashing orders relating to assessment of sales-tax, and prohibiting the Superintendent of Taxes, Dhubri and other officers from taking action in enforcement of the said orders. The appeals raise common questions and may be disposed of by a common judgment. The appellants are merchants carrying on business as dealers in jute, and have their principal place of business at Calcutta. The appellants have a branch office at Dhubri in the State of Assam and are registered dealers under the Assam Sales Tax Act, 1947 (17 of 1947). The appellants purchased jute at Dhubri and other places in the State of Assam and despatched bales 'of jute to diverse factories ,outside the Province of Assam. The appellants submitted returns of turnover for purposes of sales-tax before the Superintendent of Taxes, Dhubri, under the Assam Sales Tax Act in respect of transactions of sale during the period between March 1948 to March 1950. The Superintendent of Taxes called upon the appellants under s. 17(2) of the Act to produce their books of account and other evidence in support of their returns and granted them time to enable them to comply w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore in respect of the last year's crop and the goods sold must actually have been in the Province of Assam at the date of the contracts. The Commissioner made certain modifications in the assessment order, but with those modifications we are not concerned in these appeals. Against the order passed by the Commissioner, petitions under Art. 226 of the Constitution were filed by the appellants for writs of certiorari and prohibition. Amongst the grounds urged before the High Court were the following two grounds, which alone survive for determination in these appeals: (1) that the Explanation to s. 2(12) of the Act was ultra vires the Assam Legislature under the provisions of the Government of India Act, 1935, and therefore tax could not be levied on sales irrespective of the place where the contracts were made merely relying upon the circumstance that at the time of the contracts of sale the goods contracted to be sold were actually in the Province of Assam; and (2) that the finding recorded by the Commissioner that the goods were actually in the Province of Assam at the time when the contracts were made was speculative . The High Court held that the Explanation to s. 2(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Explanation the manager or agent of a dealer who resides outside the Province and carries on the business of selling or supplying goods in the Province is in respect of such business to be deemed a dealer for the purpose of the Act. Clause (12) of s. 2 defines 'sale'. Section 3 is the charging section and s. 4 prescribes the rates of tax. The sales-tax authority may, if he is not satisfied that the return furnished by the dealer is correct and complete, serve on the dealer a notice requiring him either to attend in person and to produce or cause to be produced any evidence on which he may rely in support of his return [sub-s. (2) of s. 17], and may make an assessment to the best of his judgment if the dealer fails to make a return or fails to comply with the terms of the notice issued under sub-s. (2) of s. 17. Section 30 confers a right of appeal to an aggrieved dealer to the authority prescribed by the rules, and by s. 31 revisional jurisdiction may be exercised by the Commissioner of Sales Tax against the order of the sales-tax authorities. By s. 32, within sixty days from the date of service of any order in appeal or revision, the dealer may, by application in wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed. The appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Art. 226 and sought to reopen the decision of the taxing authorities on questions of fact. The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restric- tions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Sale of Goods Act, a sale takes place when property in the goods passes. But, for the purposes of the Assam Sales Tax Act situation of the goods is seized by the Legislature for the purpose of fictionally regarding the sale as having taken place within the Province of Assam if at the time of the contract of sale the goods are within the Province. Liability to sales tax in respect of the goods where the transfer in the property of the goods has taken place outside the Province of Assam undoubtedly arose if the conditions prescribed by the Explanation, exist : viz. the goods are actually in the Province when the contract of sale is made, and not otherwise. But the question whether the goods at the date of the contract of sale were actually in the Province is a question of fact which had to be determined by the sales tax authorities. Before the Superintendent of Taxes liability to pay tax was challenged but it does not, appear to have been contended that at the time of the contract of sale, :the goods were not actually within the Province, and no such contention appears to have been even raised before the Assistant Commissioner of Taxes. Before the Commissioner in the revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was broadly urged that the goods in respect of the con-tracts could not have been in existence within the Province at the date of the respective contracts of sale but that argument was for reasons already mentioned rejected by the Commissioner and the High Court declined to allow the question whether the findings of the Commissioner were speculative to be agitated. The appellants now seek to plead that the taxing authorities were in error in holding that the goods conformed to the conditions as to the sites of the goods at the dates of the contracts of sale, prescribed by s. 2(12) so as to make the price liable to be included in the taxable turnover. The Legislature has entrusted power to ascertain facts on which the price received on sales becomes taxable, to the authorities appointed in that behalf with right of recourse to the High Court on questions of law arising out of the order of the Commissioner of Taxes. It is therefore contemplated by the Legislature that all material evidence on which a tax-payer relies to justify his claim that his transactions are not taxable, should be placed before the taxing authorities so that they may have an opportunity to adjudicate upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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