- (1.) This is a direct appeal by special leave granted by this Court on September 7, 1959, against the order, dated June 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 Central Sales Tax Act (LXXIV of 1956) - which hereinafter will be referred to as the Act. The second respondent is the State of West Bengal, an the third respondent is the Union of India.
(2.) In view of the order we propose to make in this case, 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 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 inter-State 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 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. 42,647.82 nP. under S. 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.
(3.) From the statement of fact 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 invoked to exercise its powers 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 Art. 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 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 v. Commercial Tax Officer, Calcutta, 1959 SCR 551 : (AIR 1958 SC 667), 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 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.;