Case: Ramsaran Das And Bros Vs. Commercial Tax Officer, Calacuttaand Others

original order of the Taxing Officer. It is claimed on behalf of the appellant that that decision completely covers the points in controversy in the present case also. It is contended that that was also a case, like the present one, of commission agents who had been charged sales tax. There are several reasons why the authority of that decision cannot be invoked in favour of the appellant on the preliminary question whether this Court should at all entertain the appeal. In that case, in the reported decision of this Court, no such question, as we have to determine, had been raised. Apparently; counsel for both the parties went anxious to have the final determination of the controversy by this Court. Secondly, there were special circumstances in that case, which are not present in the instant case. The most outstanding feature of that case was, as pointed out by this Court, that the Assessing Authority had not exercised its own judgment in the matter of the assessment in question. The Assessing Authority had, contrary to its own judgment, taken instructions from the Assistant Commissioner and followed those directions, This Court had also pointed out that even though the Assessing Authority was satisfied on the materials placed by the assessee that he was not liable to pay sales tax, he carried out the directions of a superior officer. This Court further pointed out that there had been complete failure of justice on account of the fact that the assessee had been given no opportunity to meet the points made by the Assistant Commissioner, and the assessment order was made behind his back. The Court was led to make the following very significant observations:"The procedure adopted was, to say the least, unfair and was calculated to undermine the confidence of the public in the impartial and fair administration of the sales-tax Department concerned. We would have, simply on this ground, set aside the assessment order made by the first respondent and remanded the matter back to him for his due consideration in accordance with law; but as the matter is old and a remand would lead to unnecessary harassment of the appellants, we have preferred to deal with the appeal on merits." (p. 560).It was in those circumstances that this Court went into the whole controversy on its merits and determined the appear in favour of the assessee. That case, therefore, is no precedent in favour of the appellant.4. The next case relied upon by the counsel for the appellant is State of Bombay v. M/s. Ratilal Vadilal Bros., AIR 1961 SC 1106 . That was a case in which the State of Bombay had appealed to this Court on special leave against the order of the Sales Tax Tribunal, Bombay, by which the Tribunal had allowed the appeal before it and set aside the order of the Collector of Sales Tax, under the Bombay Sales Tax Act. The respondents in that case were commission agents doing business as clearing and transport contractors. They had applied to the Collector of Sales Tax, Bombay, for the determination of the question if they could be called dealers within the meaning of the Act, after giving the facts and circumstances of their case. In that case also no steps had been taken to have a reference made to the High Court, and this Court observed that it had been frequently noticed that appeals had been filed to this Court without exhausting all the remedies open to appellants and that ordinarily this Court would not allow the High Courts to be bypassed and the appropriate course for an appellant was to exhaust all his remedies before invoking the jurisdiction of this Court under Art. 136 of the Constitution. But this Court went into the merits of the case because both the parties invited the court to do so and did not insist upon the preliminary issue being decided. It is clear, therefore, that neither of the two cases relied upon by counsel for the appellant is an authority for the proposition that he can come up to this Court on special leave directly against the judgment of the Assessing Authority without exhausting all his remedies under the Act.5. There are cases in which this Court was moved directly against the order of assessment, after ignoring the orders of the High Court refusing to have a reference made, or deciding the point referred, against the assessee. In those circumstances, this Court refused to entertain the appeal and held that the appellant was not entitled to invoke the jurisdiction of this Court under Art. 136, without coming up in appeal from the final decision inter parts given by the High Court. The latest decision of this Court on that question is the case of Chandi Prasad Chokhani v. State of Bihar, C. A. Nos. 170, 172 of 1959 D/- 24-4-1961 : (AIR 1961 SC 1708 ). In that case, the previous decisions of this Court have all been considered in extenso. We are in entire agreement with what has been laid down by this Court in trial batch of cases. Another decision of a Division Bench of this Court is the case of Kanhaiyalal Lohia v. Commissioner of Income-tax, West Bengal, C. A. Nos. 347-350 of 1960 D/- 17-7-1961 : (AIR 1962 SC 1323 ). In that case, this Court has taken the same view and dismissed the appeal as incompetent.6. The present case is a much simpler one, in which there are no special circumstances and in which the facts have not yet been finally determined. It may also be noted that the appellant has not challenged the vires of the Act or of any other law. We, therefore, think that we should dismiss this appeal as incompetent, without expressing any opinion on the merits of the controversy. It will be open to the appellant to take such steps as it may be advised, in pursuing such remedies as may be available to it under the law.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]. It is clear, therefore, that neither of the two cases relied upon by counsel for the appellant is an authority for the proposition that he can come up to this Court on special leave directly against the judgment of the Assessing Authority without exhausting all his remedies under the Act.5. There are cases in which this Court was moved directly against the order of assessment, after ignoring the orders of the High Court refusing to have a reference made, or deciding the point referred, against the assessee. In those circumstances, this Court refused to entertain the appeal and held that the appellant was not entitled to invoke the jurisdiction of this Court under Art. 136, without coming up in appeal from the final decision inter parts given by the High Court. The latest decision of this Court on that question is the case of Chandi Prasad Chokhani v. State of Bihar, C. A. Nos. 170, 172 of 1959 D/- 24-4-1961 : (AIR 1961 SC 1708 ). In that case, the previous decisions of this Court have all been considered in extenso. We are in entire agreement with what has been laid down by this Court in trial batch of cases. Another decision of a Division Bench of this Court is the case of Kanhaiyalal Lohia v. Commissioner of Income-tax, West Bengal, C. A. Nos. 347-350 of 1960 D/- 17-7-1961 : (AIR 1962 SC 1323 ). In that case, this Court has taken the same view and dismissed the appeal as incompetent.6. The present case is a much simpler one, in which there are no special circumstances and in which the facts have not yet been finally determined. It may also be noted that the appellant has not challenged the vires of the Act or of any other law. We, therefore, think that we should dismiss this appeal as incompetent, without expressing any opinion on the merits of the controversy. It will be open to the appellant to take such steps as it may be advised, in pursuing such remedies as may be available to it under the law.