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TMI Blog1964 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 with the requisition, but the appellants failed to do so. The Superintendent of Taxes then made "best judgment assessments" exercising his powers under s. 17(4) of the Act and issued demand notices for the tax determined. Against the orders passed by the Superintendent of Taxes appeals were preferred to the Assistant Com- missioner of Taxes. Before the appellate authority the appellants produced some but not all their books of account and documents in support of their returns. Before the appellant authority it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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(12) was. in respect of the period prior to the Constitution, not ultra vires the authority of the Provincial Legislature, and that no attempt was made to establish before the appellate authority that the books of account supported the contention that the goods were not actually in existence in the State of Assam at the time of the contracts of sale. Holding that the reasons which the Commissioner had given in support of his finding were not "altogether unjustified" and that the taxing authorities being "fully consciou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 writing, require the Board of Revenue or the Commissioner, as the case may be, to refer to the High Court any question of law arising out of such order, and if the Board or the Commissioner decline to state the case, the dealer may apply to the High Court calling upon the Board or the Commissioner to state the case, and the High Court may if it be not satisfied with the correctness of the decision of the Com- missioner, require the authority concerned to state the case and refer it and on receipt of any such requisition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 revision application filed by the appellants it was urged that part of the goods the price of which was sought to be included in the turnover were not within the Province at the time of the contract of sale and therefore the price of those goods could not be taken into account in computing the taxable turnover. The Commissioner held having regard to the "time-table of cultivation of jute" and the time when the jute is brought into the market for sale, that the goods sold were within the Province on the dates of the contracts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the claim. If after a proper trial, the claim is negatived, because the facts on which it is founded are not proved, the proceeding must end. If, however, the adjudication of the Commissioner is vitiated because there is no evidence to support it or it is based on conjectures, suspicions or irrelevant materials, or the proceedings of the taxing authorities are otherwise vitiated so that there has been no fair trial, the High Court may undoubtedly advise the Com- missioner on questions properly referred to it in the manner pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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