# 276 SUPREME OOURT REPORTS [1962] SUPP. RAMSARAN DAS AND BROS v. COMMERCIAL TAX OFFICER, CALCUTTA AND OTHERS

- **Citation:** [1962] Supp. 1 S.C.R. 276
- **Court:** Supreme Court of India
- **Decided:** 1959-09-07
- **Bench:** B. P. Srmu, J. L. K.u>UR, !If. HIDAYATULLAH, J.C. Srah, J. R. MuoHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/276-supreme-oourt-reports-1962-supp-ramsaran-das-and-bros-v-commercial-tax-2418
- **Pages:** 7

## Headnote

Supreme Courl-Practia-Appeal by special leave from
or.Ur of a.ausmmt-Maintainability-Statut-Ory remedies t-0
be uhaUBtt4ftrat-Conalilution of India, Art. 136.
In respect of its business as a middleman relating main.
ly to sales of coal and coke in the course of inter-State trade,
'
the appellant finn was assessed to Central sales tax under
s. 8(2) of the Central Sales Tax Act, 1956, by the Commercial Tax Officer. The appellant without availing itself of
~
the remedies under the Act, applied for and obtained special
leave to appeal under Art. 136 of the Constitution of India
direct! y against the order of assessment. When the appeal
was taken up for hearing, the question was raised as to
whether it should be enterained, when even the facts had
not been finally determined by the final fact-finding authority
under the Act, nor had the jurisdiction of the High Court
been invoked to exercise its powers under the Act.
H.Id, that an assessee is not entitled ordinarily to come
up to the Supreme Court directly against the judgment of
the A5'essing Authority and invoke the Court's jurisdiction
under Art. 136 of the Constitution without fir.t exhausting
the remedies provided by the taxing statutes.
Ma/ladayal
Prtmchandra• v.
Commucw l Tax Officer,
Calcutta, (1959] S. c,. R. 551 and Tht Stall of Bombay v.
M/s. RatilalVtdilal, (1961] 2 S. C.R. 367, explamed.
Chandi Prasad Clwkhani v. The State of Billar, [ 1962]
2 S. C. R. 276 and Kanhaifl<l[al Lohia v. Commiaaiontr of
Inoome-tax, Wut Bengal, [1962]2 S. C.R. 839, followed.
Held, ruthcr, that in the present case, in which th~re
were no special circumstances and in which the facts had
not yet been finally determined, the appeal must be considered to be incompetent.
CIVIL APPELLATE Jun1SDICTIO!'I: Civil Appeal
No, 592 of 1960.
Appeal by special leave from the judgment
and order dated June 17, 195!J, of the Commercial
Tax Officer, Calcutta, in caso No. 54{c) of
1959-60.
,-
<1) S.C.R.
SUPREME COURT REPORTS
277
N. 0. Okatterjee and S. 0. Mazumrlar, for the
appellants.
B. Sen and P. K. Bose, for respondents Nos. 1
and 2.
K. N. Rajagopal Sastri and T. M. Sen, for
respondent No. 3.
1961. October 31. The Judgment of the Court
was delivered by
SrNHA, C. J.-This is a direct appeal by
special leave granted by this Court on September
7, 1959, against the order, dated June 17, 1959,
passed by the first respondent-the Commercial
Tax Officer-assessing the appellant to central sales
tax amounting to Rs. 42,647 odd, for the period
July 30, 1957 to March 31, 1958, under the Central
Sales Tax Act (LXXIV of 1956)-which here·
inafter will be referred to as the Act. The second
respondent is the State of West Bengal, and the
third respondent is the Union of India.
In view of the order we propose to make in
this case, it is not necessary to state in any detail
the faots and circumstances leading up to this
appeal. The 11.ppellant is a partnership firm, under
the Indian Partnership Act, with its principal place
of business at 18, Netaji Subhas Road, Calcutta,
within the jurisdiction of the first respondent. The
appellant alleges that he carries on business of two
kinds, namely, (1) of a dealer in coal and coke,
and (2) of a middleman bringing about sales of
coal and ooke between colliery owners and consu·
mers. In respect of its business as a dealer, the
appellant is a registered dealer under the Bengal
Finance (Sales Tax) Act (Bengal Act VI of 1941).
lts second business as a middleman relates mainly
to sales of coal and coke in the course of inter~
State trade or commerce, and-the tax in question
relates to this second branch of its business. The
Act came into operation in the State of West
Bengal
on July 1, 1957, when the appellant
Bamsl!fan Das
v.
<Amnurcfal Tax
0 jfu:er CalcuJta
Sinh• C. J.
IHI
~INJ
v.
c..-sn.ir ...
0 fKD 1 WJ~~(J
Bi""" C. J.
I
278 SUPREME COURT REPORTS [1962] SUPP.
11
applied for and obta.ined;a certificate of registration
under tho Act on July 30. l 57. I1 l\fay 1958, the
apriella.nt made its

## Text

276 SUPREME OOURT REPORTS [1962] SUPP.
RAMSARAN DAS AND BROS.
v.
COMMERCIAL TAX OFFICER, CALCUTTA
AND OTHERS
(B. P. Srmu., c. J., J. L. K.u>UR, !If. HIDAYATULLAH,
J.C. SRAH and J. R. MuoHOLKAR, JJ.)
Supreme Courl-Practia-Appeal by special leave from
or.Ur of a.ausmmt-Maintainability-Statut-Ory remedies t-0
be uhaUBtt4ftrat-Conalilution of India, Art. 136.
In respect of its business as a middleman relating main.
ly to sales of coal and coke in the course of inter-State trade,
'
the appellant finn was assessed to Central sales tax under
s. 8(2) of the Central Sales Tax Act, 1956, by the Commercial Tax Officer. The appellant without availing itself of
~
the remedies under the Act, applied for and obtained special
leave to appeal under Art. 136 of the Constitution of India
direct! y against the order of assessment. When the appeal
was taken up for hearing, the question was raised as to
whether it should be enterained, when even the facts had
not been finally determined by the final fact-finding authority
under the Act, nor had the jurisdiction of the High Court
been invoked to exercise its powers under the Act.
H.Id, that an assessee is not entitled ordinarily to come
up to the Supreme Court directly against the judgment of
the A5'essing Authority and invoke the Court's jurisdiction
under Art. 136 of the Constitution without fir.t exhausting
the remedies provided by the taxing statutes.
Ma/ladayal
Prtmchandra• v.
Commucw l Tax Officer,
Calcutta, (1959] S. c,. R. 551 and Tht Stall of Bombay v.
M/s. RatilalVtdilal, (1961] 2 S. C.R. 367, explamed.
Chandi Prasad Clwkhani v. The State of Billar, [ 1962]
2 S. C. R. 276 and Kanhaifl<l[al Lohia v. Commiaaiontr of
Inoome-tax, Wut Bengal, [1962]2 S. C.R. 839, followed.
Held, ruthcr, that in the present case, in which th~re
were no special circumstances and in which the facts had
not yet been finally determined, the appeal must be considered to be incompetent.
CIVIL APPELLATE Jun1SDICTIO!'I: Civil Appeal
No, 592 of 1960.
Appeal by special leave from the judgment
and order dated June 17, 195!J, of the Commercial
Tax Officer, Calcutta, in caso No. 54{c) of
1959-60.
,-
<1) S.C.R.
SUPREME COURT REPORTS
277
N. 0. Okatterjee and S. 0. Mazumrlar, for the
appellants.
B. Sen and P. K. Bose, for respondents Nos. 1
and 2.
K. N. Rajagopal Sastri and T. M. Sen, for
respondent No. 3.
1961. October 31. The Judgment of the Court
was delivered by
SrNHA, C. J.-This is a direct appeal by
special leave granted by this Court on September
7, 1959, against the order, dated June 17, 1959,
passed by the first respondent-the Commercial
Tax Officer-assessing the appellant to central sales
tax amounting to Rs. 42,647 odd, for the period
July 30, 1957 to March 31, 1958, under the Central
Sales Tax Act (LXXIV of 1956)-which here·
inafter will be referred to as the Act. The second
respondent is the State of West Bengal, and the
third respondent is the Union of India.
In view of the order we propose to make in
this case, it is not necessary to state in any detail
the faots and circumstances leading up to this
appeal. The 11.ppellant is a partnership firm, under
the Indian Partnership Act, with its principal place
of business at 18, Netaji Subhas Road, Calcutta,
within the jurisdiction of the first respondent. The
appellant alleges that he carries on business of two
kinds, namely, (1) of a dealer in coal and coke,
and (2) of a middleman bringing about sales of
coal and ooke between colliery owners and consu·
mers. In respect of its business as a dealer, the
appellant is a registered dealer under the Bengal
Finance (Sales Tax) Act (Bengal Act VI of 1941).
lts second business as a middleman relates mainly
to sales of coal and coke in the course of inter~
State trade or commerce, and-the tax in question
relates to this second branch of its business. The
Act came into operation in the State of West
Bengal
on July 1, 1957, when the appellant
Bamsl!fan Das
v.
<Amnurcfal Tax
0 jfu:er CalcuJta
Sinh• C. J.
IHI
~INJ
v.
c..-sn.ir ...
0 fKD 1 WJ~~(J
Bi""" C. J.
I
278 SUPREME COURT REPORTS [1962] SUPP.
11
applied for and obta.ined;a certificate of registration
under tho Act on July 30. l 57. I1 l\fay 1958, the
apriella.nt made its return under the Act in respect
or the period aforesaid, showing the turnover as
nil. But in spito of its showing cause against the
proposed assosRment, the first respondent determined Rs.9,l 7,l 9G as th,, appellant's turnover in respect
o( tho periorl aforesaid and assessed central sales
tax thereon at Rs. 42,6! i·ll2nl'. under s. 8(2) or
the Act, and issued Dcm11.11d Notice. The appellant
moved this Court and obtain~d tho special leavo to
appeal from the ord!'r of ! he first respondent making assessment, and later a demand on the basis
of the it~srssment.
From th<' statement of fads ~iven above, it is
clear that the appcllimt did uot exhaust all his
remedies under the Act itself, and came directly
to this Court as if the Order of Assessment passad
by the first respondent was final.
The question,
therefore, arises wethcr this Courl should entertain
the appeal. when enn the facts have not been
finally deter mined by the firn1l fact-finding authority under the Act, nor has the jurisdiction of
the High Court beeu invoked to exercise its power
under tho Act. But Mr. Chatterjee,
on behalf of
the appellant, has contended in the first instance
that the powers of this Court arc wide enough to
enable him to approach this Court direct, when
according to him, there had been an assessment of
tax without the authority of law. There is no
doubt that the powers of this Court under Art. 136
of tho Constitution arc as wi1le as they could be,
because, unlike tho preceding articles of the
Constitution, there is no limitation that the Judgment, decree or order should he final in the sense
that the appellant in this Court has exhausted all
the remedies provided by law before invoking the
jurisdiction of thi~ Court to grant "special leave
to appeal from any judgment, decree determination
sentence or order in any case or matter passod or
,_
•
(1) S.C.R.
SUPREME OUURT REPORTS
27!'l
made by any Court or Tribunal in the territory of
India.'' In spite of the wide amplitude of the
jurisdiction of this Conrt to entertain appeals by
special leave, this Coul't has imposed certain limitatiODB on its own powers for very good reasons,
and has refused ordinarily to entertain such appeals
when the litigant has not availed himself of the
ordinary remedies available to him at law. Rut
Mr. Chatterjee, on behalf of the appellant, invited
onr attention to the decision of this Court in
Mahadayal Premchandra v. Commercial Tax Officer,
OalcuUa (1) in which this Court interfered with the
order of assessment passed by the Commercial Tax
Officer of Calcutta, and this Court had been moved
by way of special leave to appeal against the
original ·order of the Taxing Officer. It is claimed
on behalf of the appellant that that decision
completely covers the points in controversy in the
present case also. It. is contended that that was
also a case, like the present one of commission
agents who had been charged sales tax. There are
several reasons why the authority ofth'!.t decision
cannot ·be invoked in favour of the appellant on
the preliminary question whether this Court should
at all entertain the appeal. In that case, in the
reported decision, of thiK Court, no such question,
aa we have to determine, had been raised, Apparently, cuunsel for both the parties were anxious to
have the fin't.l determination of the controversy by
this Court. Secondly, there were special circumstances in that case, which are not present in the
instant case. The most outstanding feature of that
caae was, as pointed out by this Court, that the
.Assessing Authority had not exercised its own
judgment in the matter of tho assessment in question. The Assessing Authority had, contrary to
its own judgment, taken instructions from the
ABSistant Commissioner and followed those directions. This Court had also pointed out that l;lVen
(I) [1959] S. C.R. 551.
Ram5aran Das
v.
Commeuir.l Tax
OJ}ictr, "Ca/c'ltfa
Sinha C. J,
1961
Ham,nrnn Das
••
G"mmu,iaJ 1·a.t
0 ff ct"' c.Jeulta
Sinha C. J,
•
280
SUPREME COURT REPORTS [1962) SUPP.
\,..
though the Assessing Authority was satisfied on the
materials placed by the assessee that he waa not
liable to pay sales tax, he carried out tho directions
of a superior officer. This Court further pointed
out that there had been complete failure of justice
on account of tho fact that the assessee had been
given no opportunity to meet the points made by
the Assistant Commissioner, and the assessment
order was made behind his back.
Tho Court was
led to make the following very significant observations:
"The procedure adopted was, to say that
least, unfair and was calculated to undermine
the confidence of the public in tho impartial
and fair administration of the sales-tax
Department concerned.
We would have,
simply on this
ground,
set a.side
the
assessment order made by tho first respondent and remanded tho matter back to him
for his duo consideration in accordance with
law, but as the matter is old and a remand
would load to unnecessary harassment of the
appellants, we have preferred to clea.l with the
appeal on merits." (p. 560).
It was in those circumstances that t.his Court went
into the whole controversy on its merits and determined tho appeal in favour of tho assessee. That
case, therefore, is no precedent in favour of tho
appellant.
The next case relied upon by the counsel for
the. appell~ut is The State of Bombay v. M/a,
Ratilal Vadilal ('). That was a case in which tho
State of Bombay had appealed to this Court on
special leave against tho order of the Sales Tax
Tribunal, Bombay, by which the Tribunal had
allowed tho appeal before it and set aside t.he order
of tho Collector of Sales Tax, under the Bombay
Sales Tax Act.
Thti respondents in that case were
commission a.gents doing business as clearing and
(I) (1961]25.C.R,367.
-
{1) S.C.R,
SUPREME COURT REPORTS
281
transport contractors. They had applied to the
Collector of Sales Tax, Bombay, for the determination of t'ie question if they could be called "dealers"
within the meaning of the Act, after giving the
facts and circumstances of their case.
In that case
also no steps had been taken to have a reference
made to the High Court, and this Court observed
that it had been frequently noticed that appeals
had been filed to this Uourt without exhausting all
the remedies open to appellants and that ordinarily
this Court would not allow the High Courts to be
bypassed and the appropriate cousre for an appel·
!ant was to ex:1aust all his remedies before invoking the jurisdiction of this Court under Art. 136 of
the Constitution. But this Court went into the
merits of the case because both the parties invited
the Court to do so and did not insist upon the
preliminary issue being decided. It is clear, there·
fore, that neither of the two cases relied upon by
counsel for the appellant is an authority for the
proposition that he can come up to this Court on
special leave directly against the judgment of the
Assessing Authority, without exhausting all his
remedies under the Act.
There are cases in which this Court was moved
directly against the order of assessment, after ignoring the orders of the High Court refusing to have a
reference made, or deciding the point referred,
against the assessee. In those circumstances, this
Court refused to entertain the appeal and held that
the appellant was not entitled to invoke the jurisdiction of this Court under Art. 136, without coming
up in appeal from the final decision inter partes
given by the High Court. The latest decision of this
Court on that question is the case of Chandi Prasad
Chokhani v. The State of Bihar (1). In that case, the
previous decisions of the Court have all been con.
sidered in extenso. We are in entire agreement with
what has been laid down by this Court in that batch
of cases. Another decision of a Division Bench of
(I) [1962] 2 S, C.R. 276,
U61
Ramsar«n Das
"
Commerc;al Tax
Officer, Calcutta
Sinha C. J.
1961
Rc11uara11 DaJ
v,
C'Jfllm~r(lr,/ Toi
Ojf1ar, C'..clrllttt.-J
Sinh4 C. J.
1961
Octoitf JJ.
.282 SUPREME COURT REPORTS [1962] stJl»i> ..
this Cturt is the <'llS<' of Ka11hai11alal Lohia v. Com·
ir.i-<sio11er of ITU"ome Tax, West Bengal('). In that
cas<', this Court has taken the same view and dismissed the appeal as •incompetent.'
Tho pri>sent case is a muc·h simpler one, in
which there arc no special
cireum~tances and in
which the facts have not yet he<-n finally determined. It may also he noted that the appellant haa
not challenged the vires of the Act or of any other
law.
We, therefore, think thitt we should dismiss
this appeal ae 'incompetent', without oxpressingany
opinion on the merits of the controversy. It will
be open to tho appollant to take such at.cps as it
may Le advised, in pursuing such remedies as may
be available to it under the law. The appeal is
accordingly dismissed, but in tho circumstances
without costs.
Appeal dismissed.
THE JIYAJEEHAO COTTON MILLS LTD.
v.
STATE OF MADHYA PRADESH
(B. P. S1NHA, C. J., J. L. KAPua, M. HmAYATULLAH,
J.C. SHAH a.nd J. R. MuDHOLKAR, JJ.)
Electricity-Levy of duty-J'roduar, if liabk lo pay duly
on ckcricity ronmmd by him&elj-S,.ch Iffy. if ultra vircs the
Constitution-Got:tmmenl of India Acl, 1935 (26 Geo. 5 Ch. 2),
List II Entry 48H-Con.1titulion of India, /Ml I Entry 81,
Liat II, Emry 53-Central PromnCf's and Berar Electricity
Duty Act, 1919 (C. P. dJ Berar JO of 1949), as amen<k.d by
Madilya Pradeah Taxalion l IJW8 Amc11dment Acl, 1956 (JI. P.
7 of 1956), SB, Z, 8.
The appellant mill produced electricity over 100 volts
exclusively for its own consumption. It challenged the levy
of the electricity duty by the Government of Madhya Pradesh
(I) (1962) 2 S. C.R. 839.
.L
-