Appeal No 196 of 1958
Appeal by special leave from the judgment and order dated April 27 1953 of the Assam High Court in Civil Rule No 66 of 1953
Sukumar Mitter and Sukumar Ghose for the appel
Veda Vyasa and Naunit Lal for the respondents
October 18
The Judgment of the Court was delivered by SHAH J
The appellants are dealers registered under the Assam Sales Tax Act XVII of 1947 hereinafter referred to as the Act
For the account period April 1 1948 to September 30 1948 the appellants submitted a return of their turnover which included sales in Assam of all goods other than jute
The Superintendent of Taxes Dhubri summarily assessed the appellants under sub section
4 of section 17 of the Act to pay tax on sales of jute despatched by them to Calcutta during the account period
Appeals against the order of assessment to the Assistant Commissioner of Taxes and to the Commissioner of Taxes Assam proved unsuccessful
The appellants then applied to the Commissioner of Taxes to refer certain questions arising out of the assessment to the High Court in Assam under section 34 of the Act
The Commissioner referred the following questions and another to the High Court of Judicature in Assam 1 Whether in view of the aforesaid facts and circumstances the turnover from 20515 maunds of 6 42 jute mentioned under item i is taxable under the Act  2 Whether in view of the aforesaid facts and circumstances the turnover from 5500 maunds of jute mentioned under item ii is taxable under the Act  3 Whether in view of the aforesaid facts and circumstances the turnover from 25209 maunds of jute mentioned under item iii is taxable under the Act  In respect of each of the three questions 1 to 3 the High Court recorded the following answer section  Not being a sale within the meaning of sub12 of section 2 of the Act the consignments are riot taxable 
The High Court however observed  As to whether these consignments can hereafter be assessed if they fall within the purview of the Explanation to sub section
12 of section 2 we express no opinion 
As required by section 328 of the Act the Commissioner of Taxes by his order dated August 1 1952 directed the Superintendent of Taxes to dispose of the case in accordance with the judgment of the High Court
The Superintendent of Taxes thereafter issued on January 30 1953 the following notice to the appellants  In view of the Hon ble High Court s order in Sales tax Reference No 3 of 1951 the assessment order dated 30th September 1950 for the return period 30th September 1948 has been set aside and you are directed to produce necessary evidence con
tract papers account books etc   in order to see whether the contract of sale involved in this case come within the purview of the Explanation to subs
12 of section 2 of the Act 
By their letter dated March 23 1953 the appellants called upon the Commissioner of Taxes to direct the Superintendent of Taxes not to proceed with the notice
The Commissioner having failed to direct as requested the appellant petitioned the High Court in Assam under article 226 of the Constitution for a writ 43 prohibiting the Superintendent of Taxes from re opening and proceeding with the assessment of the appellants under the Assam Sales Tax Act and for a writ quashing the order dated August 1 1952 passed by the Commissioner
The High Court summarily dismissed the petition
Against the order passed by the High Court this appeal is filed with special leave under article 136 of the Constitution
The High Court in answering the questions submitted to it was exercising an advisory jurisdiction and could not and did not give any direction to the sales tax authorities to proceed to assess or not to assess the appellants to sales tax  it merely recorded its opinion that the transactions referred to in the questions were not sales within the meaning of section 2 sub section 12 of the Act and were accordingly not taxable
Pursuant to the opinion of the High Court the Commissioner directed the Superintendent of Taxes to dispose of the case  in accordance with the judgment of the High Court but the Superintendent of Taxes thought that he was entitled to re open the assessment proceedings and to assess the appellants in the light of the Explanation to section 2 sub section 12
In so doing the Superintendent of Taxes in our judgment acted without authority
The Superintendent had made the assessment and that assessment was confirmed in appeal by the Assistant Commissioner
On the questions arising out of that assessment the High Court had opined that the transactions sought to be assessed were not liable to tax
The Superintendent of Taxes on this opinion was right in vacating the order of assessment
But any further proceeding for assessment which he sought to commence by issuing a notice requiring the appellants  to produce evidence contract papers account books etc
so as to enable him to determine whether the transactions were taxable under the Explanation to sub section
12 of section 2 had to be supported by some authority under the Act
The Superintendent of Taxes has not referred to the authority in exercise of which he issued this notice
It is true that tinder section 19 of the Act the  taxation Officer  if satisfied upon information coming into his possession that any 44 dealer has been liable to pay tax under the Act in respect of any period and has failed to apply for registration and to make the return required of him may at any time within three years of the end of the aforesaid period serve on the dealer a notice containing all or any of the requirements which may be included in a notice under sub section 2 of section 16 and may proceed to assess the dealer in respect of such period
But admittedly the appellants were registered as dealers and had submitted their returns the power to reassess could not therefore be exercised by virtue of section 19 of the Act
Under section 19 A the Commissioner has also power if satisfied upon information coming into his possession that any turnover in respect of sales of any goods chargeable to tax has escaped assessment during the return period to serve at any time within three years of the aforesaid period on the dealer liable to pay the tax in respect of such turnover a notice containing all or any of the requirements which may be included in a notice under sub section 2 of section 16 and may proceed to assess or reassess the dealer in respect of such period
But the Commissioner bad not issued any such notice under section 19A Nor had the Commissioner in exercise of his revisional authority under section 31 of the Act set aside the original order of assessment
The Commissioner merely directed under section 32 sub section 8 that the case be disposed of in accordance with the judgment of the High Court and acting under that direction the Superintendent of Taxes had no power to reopen the assessment and to call upon the appellants to produce documentary evidence with a view to commence an enquiry whether the sales involved in the case fell  within the purview of the Explanation to section 2 sub section 12 
In any event the account period as has already been observed was April 1 1948 to September 30 1948 and three years from the end of that period expired before the date on which the notice was issued
Fresh proceedings for reassessment could not be initiated by the Superintendent of Taxes under section 19 after the expiry of three years from the assessment period assuming that this could be regarded as a case of failure to apply for 45 registration and to make a return required of the appellants
In support of his contention that the Superintendent of Taxes had authority to proceed to reassess the appellants in the light of the observations made in the judgment of the High Court counsel for the appellants invited our attention to the judgment of the Privy Council in Commissioner of Income Tax Bombay Presidency and Aden and others vs Bombay Trust Corporation Ltd 1
In that case a foreign company was assessed by the Income Tax authorities in the name of a resident company for profits and gains received by the latter as its agent under sections 421 and 43 of the Indian Income tax Act 1922
In a reference under section 66 of the Income tax Act the High Court at Bombay opined that the assessment was illegal
The Commissioner of Income tax thereafter sent back the case with a direction to set aside the assessment and to make a fresh assessment after making such further enquiry as the Income tax Officer might think fit
Acting upon that order the Income tax Officer requir ed the resident company as agent of the foreign company to produce or cause to be produced books of account for the year of assessment and also to produce such other evidence on which it might seek to rely in respect of its return and the resident company having failed to produce the books of the foreign company he proceeded to make an assessment under section 234 of the Income tax Act 1922
By its petition under section 45 of the Specific Relief Act filed in the High Court at Bombay the resident company prayed for an order for refund of the taxes already Paid under the original assessment and for an order for disposal of certain proceedings initiated by it before the Assistant Com missioner and the Income tax Officer
The High Court made an order directing refund of tax paid and further directing cancellation of assessment
In an appeal preferred by the Commissioner of Income tax against the order of the High Court it was observed by the Privy Council that the Commissioner was not obliged to discontinue proceedings against the resident 46 company as agent of the foreign company in respect of the year of assessment and it was within the jurisdiction of the Commissioner under section 332 of the Income tax Act to direct further enquiry if he thought such an enquiry to be reasonable and to be profitable in the public interest
The principle of this case has in our judgment no application to the present case
The High Court at Bombay in its advisory jurisdiction had declared the assessment already made to be illegal
But the Commissioner was under section 33 of the Indian Income tax Act invested with jurisdiction to direct further enquiry and he purported to exercise that jurisdiction
The Privy Council rejected the challenge to the exercise of that jurisdiction
In the present case no proceedings were started by the Commissioner of Taxes in exercise of his revisional authority
The Commissioner of Taxes had directed the Superintendent of Taxes merely to dispose of the case according to the judgment of the High Court and the Superintendent had to carry out that order
If he was competent and on that question we express no opinion he could if the conditions precedent to the exercise of his jurisdiction existed proceed to reassess the appellants
But the proceedings for reassessment were clearly barred because the period prescribed for reassessment had expired
The Superintendent therefore had no power to issue a notice calling upon the appellants to produce evidence to enable him to start an enquiry which was barred by the expiry of the period of limitation prescribed by the Act
In the Bombay Trust Corporation case supra the Income tax Officer acted in pursuance of the direction of the Commissioner lawfully given in exercise of revisional authority and reopened the assessment
In the present case no such direction has been given by an authority competent in that behalf and the Superintendent had no power to reassess the income under section 19 assuming that the section applied to a case where the assessee though registered had failed to include his sales in a particular commodity in his turnover because the period of limitation prescribed in that behalf had expired
47 The appeal must therefore be allowed and the order passed by the High Court set aside
In the circumstances of the case no useful purpose will be served  by remanding the case to the High Court
We accordingly direct that a writ quashing the proceedings commenced by the Superintendent of Taxes Dhubri by his notice dated January 30 1953 be issued
The appellants will be entitled to their costs of the appeal
Appeal allowed


Summary:
A settlement was arrived at between the management of Mankatha Distillery and the workmen s union before the con ciliation officer
The Union was not registered under the Indian Trade Unions Act on the date of the said settlement
The terms of the settlement not having been carried out by the management the respondent who was the proprietor and the manager of the said distillery were prosecuted and were convicted by the Magistrate
The Sessions Court on appeal by the respondent confirmed the Magistrate s order
On an appeal to the Patna High Court by the respondent the High Court set aside the order of conviction and acquitted the respondent holding that there was no recognised union and that because the conciliation officer had visited the Distillery without giving a reasonable notice on 18 3 1954 there could be no agreement between the proprietor on one side and the workmen as a whole on the other on the date and it was wrong to suppose that because somu workmen had signed the settlement that it bound all the workmen Held that for a dispute to constitute an industrial dispute it is not a requisite condition that it should be sponsored by a recognised union or that all the workmen of an industrial establishment should be parties to it
A settlement arrived at in course of conciliation proceedings falls within section 183a and d of the Industrial Disputes Act and as such binds all the workmen though an unregistered union or only some of workmen may have raised the dispute
The absence of notice under section 112 by the Conciliation Officer does not affect the jurisdiction of the conciliation officer and its only purpose is to apprise the establishment that the person who is coming is the conciliation officer and not a stranger
Any contravention of section 126 in not submitting the report within 14 days may be a breach of duty on the part of the conciliation officer  it does not affect the legality of the proceedings which terminated as provided in section 202 of the Act
1 2 Where a fresh settlement is arrived at between the parties and all disputes are settled then  public interest does not require that the stale matter should be resuscitated 
Newspapers Limited Allahabad vs State Industrial Tribunal Uttar Pradesh  referred to
Andheri Marol Kurla Bus Service vs The State of Bombay AIR and State of Bihar vs Hiralal Kejrilal 1960 1 SCR 726 approved