- (1.) THIS is a petition under Article 226 of the Constitution of India wherein the petitioner has prayed for a writ of certiorari or direction in the nature thereof for quashing the order of assessment dated 20th December, 1956, and consequent demand notice by the Sales Tax Officer, City Circle, Jaipur, the respondent No. 1.
(2.) THE circumstances which give rise to this petition, briefly stated, are these. The petitioner is a public limited Company with its head office at Calcutta and it carries on business for the supply of coal throughout India. It has a branch office at jaipur. This office at Jaipur, besides the supervision of the supply of coal made directly by the collieries to the consumers through the petitioner also carries on the business of selling coal in retail. For the purposes-of retail sale the petitioner is registered with the Sales Tax Officer, Jaipur. On 2nd September, 1948, the petitioner entered into an agreement with the Equitame Coal Company Ltd. , (hereinafter called the 'collieries') whereby monopoly was granted to the petitioner for arranging the sale of their coal in the specified area. The collieries could effect the sale of their product through the ' petitioner and none else. According to the Colliery Control Order, 1945, the Government of India imposed certain restrictions on the sale and distribution of coal. Inter alia it provided that no person other than the owner of a colliery shall sell, despatch or transport coal to a purchaser unless sanction was accorded by the prescribed authority of the Government of India. A colliery could charge only the price fixed under clause 4 of the Order and if a broker was employed by the colliery such brokerage was not to exceed as -/6/-per ton. Likewise, if a consumer purchased coal through a del credere agent he could also charge from the consumer certain specified commission. On 28th April, 1955, the petitioner for the first time entered into a contract with the Government of Rajaslhan for the supply of coal from collieries for consumption by the Jaipur Electric Power House. An agreement was executed between the petitioner and the Rajpramukh of Rajasthan (Ex. p-3 ). Until May, 1958, the petitioner continued to supply coal for Jaipur and kota Power Houses on the terms of the agreement, the agreement having been renewed from time to time. According to the agreement the petitioner charged no commission from the State of Rajasthan but only got brokerage from the collieries @-/6/- per ton on the supply of coal made by the collieries to the various Electric power Houses in Rajasthan directly.
(3.) THE procedure for such supply as stated by the petitioner, was that the Chief engineer, Electrical ana Mechanical Department, Government of Rajasthan, Jaipur informed the Deputy Coal Controller, Calcutta, for a monthly ad hoc allotment of coal through the petitioner. A copy was marked to the petitioner's office at Jaipur. The petitioner through its head office at Calcutta would submit a programme to the Deputy Coal Commissioner (Distribution) Calcutta, for the supply of coal from the collieries Who issued a sanction according to the programme and sent copies of such sanction to the Railway Allotment authorities so that adequate wagons might be allotted and the supplies made. On receipt of the sanction from the deputy Coal Commissioner (Distribution), Calcutta, the collieries supplied coal directly to the Executive Engineer of the Power House concerned, in Rajasthan, and the Railway Receipt was sent to the consignee, through the petitioner, so that he might take the delivery of the coal from the Railways. The bill for the sale of coal supplied to the State of Rajasthan along with the copies of Railway Receipts through the petitioner's head office at Calcutta reached their jaipur office and the latter office collected the sale price from the State for the supply made to the State of Rajasthan by the collieries. The above arrangement is not disputed by the Sales Tax Department or the State. The petitioner submits that the aforesaid arrangement had the effect of making the petitioner vis-a-vis the collieries a broker and vis-a-vis the State a del credere agent.;