Decided on March 04,1955

J. L. MORISON Appellant


- (1.) THIS is a petition under Article 226 of the Constitution for relief against an assessment order of the Sales Tax Officer, Banaras, dated 16th March, 1952, under section 21 of the U.P. Sales Tax Act, 1948.
(2.) THE petitioner is a company incorporated under the Indian Companies Act of 1913 with its registered office in Bombay and branch offices at Calcutta, Madras and Delhi, but none in Uttar Pradesh carrying on the business of sale of toilet goods, patent medicines and goods of general merchandise. Its allegation is that it has no place of business nor any agent in this State. The method adopted by the petitioner company in effecting sale of its goods is the following : Payments are received by the petitioner in Calcutta and goods are despatched to this State, the railway receipts in respect of the goods being sent to the purchasers concerned according to their instructions, and railway receipts are drawn on "self" but actually endorsed in Calcutta according to the usual business practice of the company. It is therefore contended that the petitioner company is not a dealer within the definition of that term as given in section 2(c) of the said Act. The petitioner was assessed to sales tax in respect of the assessment year 1949-50 by an order of the Sales Tax Officer, Banaras, dated 9th March, 1953. The petitioner went up in appeal against that order, and the Judge, Sales Tax (Appeals), Allahabad, allowed the appeal and set aside the order of the Sales Tax Officer on 4th December, 1953, holding that the petitioner company was not a dealer as defined in the Act. With a view to assessing the petitioner company with tax for the assessment year 1948-49 under section 21 of the Act the said Sales Tax Officer demanded a return from it by a communication dated 6th March, 1952. The petitioner company did not submit a return but wrote to the Sales Tax Officer that it was not liable to taxation as it did not carry on business in this State. No reply was received by the petitioner to this letter, but on 1st April, 1952, it received a notice with an order of assessment of the year in question, and also a notice of demand for a sum of Rs. 7,812 as sales tax. On 10th April, 1952, the petitioner company's solicitors again sent a letter of protest to the Sales Tax Officer to which the latter replied by a communication dated 2nd May, 1952, requiring the petitioner to comply with the order of assessment and the notice of demand attached thereto or, in case it felt aggrieved by that order, to have recourse to an appeal against that order. There was further correspondence between the petitioner's solicitors and the Sales Tax Officer ending with the petitioner's letter dated 8th May, 1952. On 21st April, 1954, the petitioner received a notice from the Certificate Officer, Alipur, West Bengal, showing that certificate proceedings had been started by the Collector of Banaras against the petitioner for realization of the said sum Rs. 7,812. Thereupon the present petition was filed on 11th June, 1954, against the Sales Tax Officer, Banaras, the Collector of Banaras, State of U.P. and the Certificate Officer, 24 Parganas, Alipur, Calcutta. The reliefs prayed for are the quashing of the Sales Tax Officer's order of assessment and the order of the Collector of Banaras initiating certificate proceedings by a writ of certiorari and directing the opposite parties 1 to 3 to withdraw the certificate proceedings initiated by the opposite party No. 2 and restraining them from realising the said sum of Rs. 7,812 from the petitioner by a writ of mandamus. An ad interim order was obtained by the petitioner from this court on 11th June, 1954, restraining the opposite parties 1 to 3 from taking any further steps in the matter of realising the sum of Rs. 7,812 as sales tax on the basis of the assessment order dated 16th March, 1952, from the petitioner.
(3.) THE present petition has been opposed by the opposite parties 1 to 3. There is no appearance on behalf of the opposite party No. 4 The counter affidavit filed by the present Sales Tax Officer (not the Sales Tax Officer who passed the assessment order in question) relates mostly to matters which would show whether the sales effected by the petitioner did or did not take place within this State.;

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