- (1.) This is an appeal by leave from a judgment of the High Court of Judicature at Nagpur dated 25-4-1952 dismissing a petition under Art. 226 of the Constitution of India filed by the appellant questioning the 'vires' of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947.
(2.) The appellant represents a concern C. Parakh and Company (India) Limited, a company registered under the Indian Companies Act, 1913, having its head office at Bombay, and several branches in the State of Madhya Pradesh. The main business of the appellant company is that of cotton. The head-office of the appellant at Bombay sells cotton bales to several mills and individuals under the control and the system regulated by the Textile Commissioner at Bombay, and upon a contract of sale being completed the goods after being ginned and pressed are sent from Khamgaon and other places in the State of Madhya Pradesh and are actually delivered in Bombay and such other places outside the State of Madhya Pradesh as directed by the head office. The cotton bales are sent by rail under an insurance in favour of the appellant, and are delivered to the buyer by tender of railway receipt against the payment of price in Bombay.
(3.) Under the central Provinces and Berar Sales Tax Act, 1947 (Act 21 of 1947), cotton was declared liable to sales tax on 11-4-1949, and since that date the appellant commenced paying the tax in respect of the purchases made by it, and continued to pay it till 31-12-1950. For the quarter ending on 31-3-1951 the appellant declined to pay the tax in respect of the purchases made during that quaterr, realizing that it could not be made legally liable for the payment of this tax in the State of Madhya Pradesh, the transactions done or effected in Madhya Pradesh not being "sales" within that State. Apprehending that the Company may be subjected to the payment of the tax without authority of law, an application was preferred in the High Court of Judicature at Nagpur praying for an appropriate writ or writs which may secure to the Company protection from the impugned Act and its enforcement by the State. It was alleged that Explanation II to section 2(g) of the Central Provinces and Berar Sales Tax Act, 1947 as further amended by Act 16 of 1949 was 'ultra vires' and illegal.;