RAJA BHAIRABENDRA NARAYAN BHUP Vs. SUPERINTENDENT OF TAXES DHUBRI

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India, praying for appropriate writs against the opposite parties, preventing them from enforcing the provisions of the Assam Sales Tax Act, 1947 (Assam Act XVII of 1947, as amended) against the petitioner, and compelling him to get himself registered as a "dealer" and to submit returns. The petitioner is the holder of what is known as the Bijni Raj Estate.

(2.) WITHIN the ambit of his zamindari, there are sal forests, which are divided into coupes, and standing sal trees are settled every year in different coupes and lots by auction - usually to the highest bidder. The settlement-holders are permitted to fell the sall trees and market them by sawing and other processes, for sale. The Superintendent of Taxes, Dhubri, issued a notice on the petitioner under section 10 of the Assam Sales Tax Act, 1947, on 14th September, 1953, requiring him to apply for registration as a "dealer" under the said Act, or to show cause why he should not be so registered. The petitioner showed cause stating, inter alia, that he was not a dealer, as defined in section 2(3) of the Act, and that he did not carry on any business of selling or supplying goods, as defined in the Assam Sales Tax Act. The disposal of the sal trees in the manner indicated earlier, according to the contention of the petitioner, did not attract the provisions of the Act. He further asserted that the disposal of standing sal trees was, in effect, disposal of immovable property, and, as such, beyond the scope of the Act. The Superintendent of Taxes, however, insisted that the petitioner should get himself registered as a dealer. The petitioner then filed a written objection before that officer reiterating the grounds mentioned above. The objection was not entertained by the officer as he persisted in the view that the petitioner was liable to be taxed under the provisions of the Act, and, by his letter, dated 6th February, 1954, called upon this petitioner to apply for registration, and also to submit returns for various periods beginning from 31st March, 1951, and ending with 30th September, 1953. The officer further observed that in case of the petitioner's failure to comply with his directions and to submit returns, he would be liable to be summarily assessed and compulsorily registered.

(3.) THE learned Advocate-General appearing on behalf of the Taxing Department, has raised a preliminary objection to the entertainment of the application. He contends that the remedy of the petitioner was to apply to the Board of Sales Tax, Assam, for a reference to the High Court on any question of law arising out of the order of the Commissioner, and the petitioner not having done that, this application should fail in limine. He relies upon a decision in Dharam Chand Kishore Chand Puri and Brothers v. The Excise and Taxation Commissioner ([1953] 4 S.T.C. 1; A.I.R. 1953 Punj. 27) where it has been observed that an application for a writ under Article 226 of the Constitution should not be allowed to short-circuit the procedure which is laid down under the Sales Tax Act itself. The appropriate remedy for the party concerned is to follow the procedure provided by the Act itself, and if he fails to avail himself of it, the High Court would not interfere under Article 226 of the Constitution. The learned Advocate-General also refers to the judgment of the Supreme Court in the well known case of Bengal Immunity Co., Ltd. v. State of Bihar ([1955] 6 S.T.C. 446; A.I.R. 1955 S.C. 661) and contends that even if a remedy were available to the petitioner under Article 226 of the Constitution, it could be only available where the constitutionality of the legislation itself was in question, and that where the vires of the legislation is not in question, there is no reason why the petitioner should not be compelled to seek his ordinary remedies under the Act itself.