Case ID: 1347

Judgment:
Civil Appeal No. 592 of 1960. Appeal by special leave from the judgment and order dated June 17	 1959	 of the Commercial Tax officer	 Calcutta	 in case No. 54(c) of 1969 60. 277 N. a. Chatterjee and section a. Mazumdar	 for the appellants. B. Sen and P. E. Bose	 for respondents Nos. 1 and 2. K. N. Rajagopal Sastri and T. M. Sen	 for respondent No. 3. 1961. October 31. The Judgment of the Court was delivered by SINHA	 a. J. This is a direct appeal by special leave granted by this court on September 7	 1969	 against the order	 dated July 17	 1959	 passed by the first respondent the Commercial Tax officer assessing the appellant to central sales tax amounting to Rs. 42	647 odd	 for the period July 30	 1957 to March 31	 1958	 under the (LXXIV of 1956) which hereinafter will be referred to as the Act. The second respondent is the State of West Bengal	 and the third respondent is the Union of India. In view of the order we propose to make in this ease	 it is not necessary to state in any detail the facts and circumstances leading up to this appeal. The appellant is a partnership firm	 under the Indian Partnership Act	 with its principal place of business at 18	 Netaji Subhas Road	 Calcutta	 within the jurisdiction of the first respondent. The appellant alleges that he carries on business of two kinds	 namely	 (1) of a dealer in coal and coke	 and (2) of a middleman bringing about sales of coal and coke between colliery owners and consumers. In respect of its business as a dealer	 the appellant is a registered dealer under the Bengal Finance (Sales Tax) Act (Bengal Act VI of 1941). Its second business as a middleman relates mainly to sales of coal and coke in the course of interstate trade or commerce	 and the tax in question relates to this second branch of its business. The Act came into operation in the State of West Bengal on July 1	 1957	 when the appellant 278 applied for and obtained a certificate of registration under the Act on July 30	 1957. In May 1958	 the appellant made its return under the Act in respect of the period aforesaid	 showing the turnover as nil. But in spite of its showing cause against the proposed assessment	 the first respondent determined Rs.9	17	196 as the appellant 's turnover in respect of the period aforesaid and assessed central sales tax thereon at Rs. 42	617.82nP. under section 8(2) of the Act	 and issued Demand Notice. The appellant moved this Court and obtained the special leave to appeal from the order of the first respondent making assessment and later a demand on the basis of the assessment. From the statement of facts given above	 it is clear that the appellant did not exhaust all his remedies under the Act itself; and came directly to this Court as if the order of Assessment passed by the first respondent was final. The question	 therefore	 arises whether this court should entertain the appeal	 when even the facts have not been finally determined by the final fact finding authority under the Act	 nor has the jurisdiction of the High Court been involved to exercise its power under the Act. But Mr. Chatterjee	 on behalf of the appellant	 has contended in the first instance that the powers of this Court are wide enough to enable him to approach this Court direct	 when according to him	 there had been an assessment of tax without the authority of law. There is no doubt that the powers of this Court under article 136 of the Constitution are as wide as they could be	 because	 unlike the preceding articles of the constitution	 there is no limitation that the Judgment	 decree or order should be final in the sense that the appellant in this Court has exhausted all the remedies provided by law before invoking the jurisdiction of this Court to grant "special leave to appeal from any judgment	 decree determination sentence or order in any case or matter passed or 279 made by any Court or Tribunal in the territory of India. " In spite of the wide amplitude of the jurisdiction of this Court to entertain appeals by special leave	 this Court has imposed certain limitations on its own powers for very good reasons	 and has refused ordinarily to entertain such appeals when the litigant has not availed himself of the ordinary remedies available to him at law. But Mr. Chatterjee	 on behalf of the appellant	 invited our attention to the decision of this Court in Mahadayal Premchandra vs Commercial Tax officer	 Calcutta (1) in which this Court interfered with the order of assessment passed by the Commercial Tax officer of Calcutta	 and this Court had been moved by way of special leave to appeal against the original order of the Taxing officer. It is claimed on behalf of the appellant that decision completely covers the points in controversy in the present case also. It is contended 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 were 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 (1) 280 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 that 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 appeal in favour of the assessee. That case	 therefore	 in no precedent in favour of the appellant. The next case relied upon by the counsel for the appellant is The State of Bombay vs M/s. Ratikal Vadilal(1). 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 (1) ; 281 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 has 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 article 136 of the constitution. But this Court went into the merits of this case because both the parties invited the Court to do so and did not insist upon the preliminary is an 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. 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 decision 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 article 136	 without coming up in appeal from the final decision inter parties given by the High Court. The latest decision of this Court on that question is the case of Chandi Prasad Chokhani vs The State of Bihar (1). In that case	 the previous decisions of the Court have all been considered on extenso. We are in entire agreement with what has been laid down by this Court in that batch of cases. other decision of a Division Bench of (1) ; 282 this Court is the case of Kanhaiyalal Lohia vs Commissioner of Income tax	 West Bengal (1). In that case	 this Court has taken the same view and dismissed the appeal as 'incompetent. ' The present case in a much simpler one	 in which there are no special circumstances and in which the facts have not yet been finally deter mined. 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. The appeal is accordingly dismissed	 but in the circumstances without Costs. Appeal dismissed.

Summary:
In respect of its business as a middleman relating mainly to sales of coal and coke in the course of inter State trade	 the appellant firm was assessed to Central sales tax under section 8(2) of the 	 by the Commercial Tax officer. The appellant without availing itself of the remedies under the Act	 applied for and obtained special leave to appeal under article 136 of the Constitution of India directly against the order of assessment When the appeal was taken up for hearing	 the question was raised as to whether it should be entertained	 when even the facts had not been finally determined by the final fact finding authority under the Act	 nor had the jurisdiction of the High Court been invoked to exercise its powers under the Act. Held	 that an assessee is not entitled ordinarily to come up to the Supreme Court directly against the judgment of the Assessing Authority and invoke the Court 's jurisdiction under article 136 of the Constitution without first exhausting the remedies provided by the taxing statutes. Mahadayal Premchandras vs Commercial Tax Officer Calcutta	 and The State of Bombay vs M/s. Ratilal Vedilal	 [1961] 2 section C. R. 367	 explained. Chandi Prasad Chokhani vs The State of Bihar	 [1962] 2 section G. R. 276 and Kanhaiyalal Lohia v	 Commissioner of Income Tax Bengal	 [1962] 2 section C. R. 839	 followed. ^ Held	 further	 that in the present case	 in which there	 were no special circumstances and in which the facts had not yet been finally determined	 the appeal must be considered to be incompetent.