M.HIDAYATULLAH - (1.) THIS is an appeal with a certificate under Art. 132 (1) of the Constitution granted by the former High Court at Nagpur. During the course of the hearing, the appellant applied under Article 132 (3) for leave to appeal to this Court on the ground that other questions had been wrongly decided. We shall refer to that petition later.
(2.) THE appellant is the proprietor of a firm called C. P. General Agency, and held a sales tax registration certificate for the period, 13/11/1947 to Nov 1/11/1948. For that period, he filed a return under the Central Provinces and Berar Sales Tax Act, showing a gross turnover of Rs. 73,713-6-0, as sales of goods mentioned in Sch. I of the Act, and Rs. 1,28,923-7-3, as sales of other goods. He also paid an advance tax of Rs. 2,239-6-6. He was assessed on 17/03/1953, by the Assistant Commissioner of Sales Tax. His total turnover was computed at Rs. 13,93,635-10-6, and a total tax of Rs. 44,153-3-6 was assessed. In the return filed by the appellant, he had claimed exemption on sales of bidis amounting to Rs. 12,99,389-9-9 on the ground that they were exported from the taxable territories before the contract for sale was entered into. THE case of the appellant for exemption was that he had two godowns for bidis at Ujhani and Haldwani in Uttar Pradesh, which were managed by the Central Bank of India on his behalf, and that the goods were stored at these godowns, and were delivered against orders by the Central Bank of India, who also acted as the appellant's bankers. Against the order of assessment, an appeal was filed before the Commissioner. By that time, the Sales Tax Act was amended making it incumbent upon the appellant to deposit the assessed tax as a condition precedent to the admission of the appeal. The appellant did not comply with this requirement of the law, and the appeal was dismissed.
(3.) THE appellant then moved the High Court at Nagpur under Art. 226 of the Constitution for a writ of mandamus compelling the Commissioner to hear and determine the appeal, without the deposit of the assessed tax as required by the amendment. In the grounds which were mentioned in the petition, the appellant had stated that the sales from the godowns in Uttar Pradesh were exempt both by virtue of Explanation to S. 2 (g) of the Sales Tax Act and Art. 286 of the Constitution. THE petition however, was for the only relief that the appeal should be ordered to be re-heard. THE petition of the appellant was heard with others, in which the constitutional point was in the forefront. THE High Court disposed of all the petitions by a common order, and dismissed them, relying upon the United Motors case, 1953 SCR 1069: (AIR 1953 SC 252). It appears that the special point involved in this case was overlooked completely, and nothing was said about the competency of the appeal. It may be mentioned that when the petition was filed in the High Court, the decision of this Court in Hoosein Kasam Dada's case, 1953 SCR 987: ( AIR 1953 SC 221); was already given and was known.;