Hegde, J. - (1.) The respondent-original plaintiff (which will hereinafter be referred to as the 'plaintiff') is a company having its registered office at Calcutta. It was a registered dealer under the Bihar Sales Tax Act, 1947 (in brief the Act). On or about December 14, 1953, the plaintiff issued a cheque to the defendant-appellant for a sum of Rs. 10,000/- drawn on the Oriental Bank of Commerce Ltd., Calcutta towards the sales tax due from it for the years 1950-51. 1951-52 and 1952-53. That cheque was sent to Calcutta for encashment and encashed at that place. On September 25, 1954, the Assistant Superintendent of Sales-tax passed assessment orders in respect of the years mentioned earlier. According to those orders, the plaintiff was liable to pay sales tax amounting to Rs. 2803/2/- in respect of the year 1950-51; Rs. 3670/5/- for the year 1951-52; Rs. 4623/6/- for the year 1952-53, thus a total of Rs. 11,096 /-13/-. As seen earlier, it had already paid a sum of Rs. 10,000/- earlier. On July 23, 1955, it paid the balance of Rupees 1096/13/-; this again by a cheque on the bank mentioned earlier. This was also encashed at Calcutta.
(2.) Aggrieved by the assessment orders made by the assessing authority, the plaintiff went up in appeal to the Assistant Commissioner of Sales Tax, Chhotanagpur Division, Bihar. Those appeals were heard by the appellate authority at Calcutta. The appellate authority by its order of September 24, 1955 allowed the appeals and set aside the orders of assessment. Before that order was made, this Court had ruled in Bengal Immunity Co. Ltd. v. State of Bihar (1955) 2 SCR 603 that until Parliament by law made in exercise of the powers vested in it by clause (2) of Art. 286 provides otherwise, no State can impose or authorise the imposition of any tax on sales or purchases of goods when such sales or purchases take place in the course of inter-State trade or commerce. On the basis of that conclusion this Court held that the charging section of the Act read with the relevant definitions cannot operate to tax inter-State sales or purchases and as the Parliament has not otherwise provided, the Act, in so far as it purports to tax sales or purchases that take place in the course of inter-State trade or commerce, is unconstitutional, illegal and void. Evidently that decision was brought to the notice of the appellate authority at the hearing of the appeals and that authority purported to act on the basis of that decision. The appeals in question were allowed with these observations: "These three appeals are directed against assessment order for the years 1950-51, 1951-52 and 1952-53. The only point pressed before me is that since this is a case of non-resident dealers, there should have been no assessment. The lower Court records show that the workshop of the plaintiff is situate in Barakar which is outside Bihar. From here he supplies goods to collieries in Bihar. In other words, he is a non-resident dealer and so, according to the latest decision of Supreme Court, he cannot be assessed to pay any tax in Bihar. These appeal are accordingly allowed in full." Sd/- M. Ahmad, 24-9-195, Assistant Commissioner of Sales Tax."
(3.) It is rather difficult to understand this order. But before the High Court Counsel for both the parties agreed that the decision referred to in the order is the decision in the Bengal Immunity's case, (supra).;