D.Basu, J. - (1.) Though this Application under Article 226 is a voluminous document, the case of the petitioner may be briefly stated as follows: The petitioner, Associated Electrical Industries (India) Private Ltd., a registered dealer, submitted its return on 29-12-58 to the Sales Tax Authorities in respect of the financial year ending 31-10-58, in which return he claimed exemption from sales tax for the sum of 56 lakhs and odd, being the amount invoiced in respect of transactions which took place prior to July, 1957, on two-fold grounds, viz., that there was no transaction of sale in respect of this amount, or, if there was any such transaction it was a sale in course of the import of the goods into the territory of India and that, accordingly, no sales tax was payable on the amount referred to.
(2.) The Commercial Tax Officer (Respondent No. 1), by his order dated 20-2-61 (Annexure 'C' to the application--page 26), rejected the claim for exemption and made the impugned assessment and demanded a tax of Rs. 2,31,867.95 nP. The petitioner by the letter in (Annexure 'J' page 118), demanded justice from the Commercial Tax Officer and this letter summarises, in brief, his case in the present Application. Its grievance is that out of the sum claimed for exemption before respondent 1, the sum of Rs. 33,70,831.18 nP. represented the C. I. F. value of the goods imported by the petitioner for and on behalf of the Punjab State Electricity Board and that the impugned order of the Commercial Tax Officer rejecting the exemption with respect to this amount was illegal and! without jurisdiction on the following grounds--(1) That it did not constitute a "sale" inasmuch as (a) the petitioner was never the owner of the said goods and never transferred property in goods to the Punjab State Electricity Board and (b) it was an indivisible contract for supply of work, labour and materials and for the erection of immovable property and not a transaction or sale of goods. (2) That even if it was a "sale", such sale took place in the course of the import of the goods into the territory of India and shall accordingly be exempted from sales tax by virtue of Article 286(1)(b) of the Constitution. (3) That the "sale" did not take place within the State of West Bengal and accordingly, it was a sale taking place outside the State within the meaning of Article 286(1)(a), read with Section 4 of the Central Sales Tax Act, 1956.
(3.) The petitioner, accordingly, prays that the impugned order of the respondent No. 1 as well as the notice issued by the respondent No. 1 dated 21-2-61 after rejection of the claim for exemption (Vide Aunexure 'C' page 31) be quashed by a writ of certiorari and the respondents be directed not to give effect to the said order or notice or to demand or collect say sales tax from the petitioner in respect of the impugned transaction, referred to above. In the Application the Commercial Tax Officer has been impleaded by his official designation as respondent No. 1. The officer who is at present holding his office has been impleaded as respondent No. 2, Respondent No. 3 is the Punjab State Electricity Board which, it is stated in the petition, has been impleaded as a proper party, without any relief being claimed against it. Respondent No. 2 has filed a counter-affidavit on behalf of the respondent No. 1 and himself. In this affidavit it is denied that the petitioner imported the goods for and on behalf of the Punjab State Electricity Board and it is contended that the petitioner imported these goods for selling the same to the East Punjab Government. It is also contended that it is the petitioner who had property in the goods and not the Chief Engineer of the Government of Punjab. There was according to the counter-affidavit, a transaction of sale with respect to the amount referred to in the application and the transaction involved a contract for the sale of goods as well as for rendering services, the two contracts being separable from each other. It is also averred that the sale took place within the State of West Bengal after the goods had been imported from the U. K. from the manufacturer and that, accordingly, exemption under Article 286 was not available. It has also been contended that the application under Article 226 is not maintainable because the petitioner has failed to resort to its statutory remedies.;