# Sdh Ganga Dhar v. Slta11kar ·Lal 6' Others - **Citation:** [1959] 1 S.C.R. 520 - **Court:** Supreme Court of India - **Decided:** 1959 - **Bench:** S. Il. DAS C. J, Venkatarama Aiyah, S. K. Das, A. K. Sarkar, VIVIAN BosE - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sdh-ganga-dhar-v-slta11kar-lal-6-others-1521 - **Pages:** 32 ## Headnote Sales Tax-l\1otification e11jorci11g the charge not wholly in consnnance tf'ith t.lze charging provision-Validity-Assessn1cnt for periods both before .and aftci· the Constituti.011-Legality:-Orissa Sales Tax Act, r947 (Omsa XIV of r947), s. 4-Consl1tution of India, Art. r86. This appeal by the Sales Tax authorities was directed against the judgment and order of the Orissa High Court, passed under Art. 226 of the Constitution, quashing five orders of assessment covering five quarters made against the rPspondents \Vho carried on the business of collection and sale of l{endu leaves in the erst- \vhile Feudatory State of Pallahara to \vhich, on its 1nerger into the province of Orissa on January 1, i948, the provisions of the Orissa Sales Ta.x Act, 1947, were extended on March r, 1949· On the same date the Government of Orissa issued a notification under s. 4(1) of the Act which was in the following terms: "In exercise of the powers conferred by sub-section (1) of Section 4 of the Orissa Sales Tax Act, 1947 (Orissa Act XIV of 1947), as applied to Orissa State, the Government of Orissa are . pleased to appoint the 31st March, 1949· as the date with effect from \Vhich every dealer \vhose gross turnover during the year ending the 31st Marci], 1949· exceed~d Rs. ~,ooo shall be liable to pay • • • < • ' • ,, SUPREME COURT REPORTS 521 under the said Act on sales effected after the said date". Section 4 of the Act, inter alia, provided: '' (r) . ·" . with effect frrm .such date as the Provincial Governmrnt ·may by notification in the Gazette, appoint, being not earlier thari thirty days after the date of the said notification; every dealer· whose gross turnover during the year immediately preceding the commencement of this Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notifi~d .... (2) Every dealer to w~om sub-section (I) does not apply shall be liable to pay under this Act \l'ith effect from the commencement of the year immediately follo~~ing ~hat during which his gross turnover first exceeded Rs. 5,000 . Safrs Tax Officer, Cuttack v. B. C. l'alel & Co. The' goods were admittedly delivered for oonsumption at various places outside the State and the Sales Tax Officer as well as the Assist1tnt Collector in appeal, proceeding on the basis that the sales took place in the State, held that the respondents were liable to Sales Tax for all the five quarters, two of which fell before the commencement of the Constitution and three the;·eafter.• The contention of the respondents before the High Court was that the notification- under s. 4(1) of the Act was invalid as it ran counter to the provisions of that sub-section and no part of that charging section could, therefore, come into force. It was further contended that the assessment for the three quarters ' following the commencement of the Constitution was invalid by reason ot Art. 286 of the Constitution. The High Court found entirely in favour of the assessee: Held (per Das C. ]., Venkatarama Aiyar, S. K. Das and Vivian Bose, JJ.), that the decision of the High Court in so far as it related to tt1e three post-Constitution quarters was correct and must be upheld. The orders of assessment for those quarters contravened both Art. 286 of the Constitution ands. 3o(r)(a)(i) of the Orissa Sales Tax Act and were without jurisdiction and must be set aside. So far as the two pre-Constitution quarters were concerned, the assessees were clearly liable under s. 4(2) of the Act. Per Das C. J. and Venkatarama Aiyar J. The first part.of the impugned notification, appointing the date from which the liability was to commence, was in consonance with s. 4(r) of the Act and, therefore, clearly intra vires, whereas the second part, indicating the class of dealers on whom the liability was to fall, went beyond that section and must, therefor~. be held to be ultra vires and invalid. But since the two parts were severable, the invalidity of the second part could in ## Text _Characters 0–39,939 of 73,023. This is a partial read: ask again with offset=39939 for what follows._ Sdh Ganga Dhar v. Slta11kar ·Lal 6' Others Sarkar]. April Ij. 520 SUPREME COURT REPORTS [1959) That, to our mind, indicates that the bargain had been freely made. There was 'nothing else to which our attention was directed as showing that the bargain was hard. 'Ve, therefore, think that the bargain was a reasonable one and the eighty-five years' term of the mortgag\l should be enforced. vV c then come to the conclusion that the suit was premature and miist fail. . In the result we dismiss this appeal with costs. Appeal di.smissed . SALES TAX OFFICEH, CUTTACK A::'\D ANOTHER v. M/s. B. C. PATEL & CO. • (S. Il. DAS C. J., VENKATARAMA AIYAH, S. K. DAS, A. K. SARKAR and VIVIAN BosE JJ.) Sales Tax-l\1otification e11jorci11g the charge not wholly in consnnance tf'ith t.lze charging provision-Validity-Assessn1cnt for periods both before .and aftci· the Constituti.011-Legality:-Orissa Sales Tax Act, r947 (Omsa XIV of r947), s. 4-Consl1tution of India, Art. r86. This appeal by the Sales Tax authorities was directed against the judgment and order of the Orissa High Court, passed under Art. 226 of the Constitution, quashing five orders of assessment covering five quarters made against the rPspondents \Vho carried on the business of collection and sale of l{endu leaves in the erst- \vhile Feudatory State of Pallahara to \vhich, on its 1nerger into the province of Orissa on January 1, i948, the provisions of the Orissa Sales Ta.x Act, 1947, were extended on March r, 1949· On the same date the Government of Orissa issued a notification under s. 4(1) of the Act which was in the following terms: "In exercise of the powers conferred by sub-section (1) of Section 4 of the Orissa Sales Tax Act, 1947 (Orissa Act XIV of 1947), as applied to Orissa State, the Government of Orissa are . pleased to appoint the 31st March, 1949· as the date with effect from \Vhich every dealer \vhose gross turnover during the year ending the 31st Marci], 1949· exceed~d Rs. ~,ooo shall be liable to pay • • • < • ' • ,, SUPREME COURT REPORTS 521 under the said Act on sales effected after the said date". Section 4 of the Act, inter alia, provided: '' (r) . ·" . with effect frrm .such date as the Provincial Governmrnt ·may by notification in the Gazette, appoint, being not earlier thari thirty days after the date of the said notification; every dealer· whose gross turnover during the year immediately preceding the commencement of this Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notifi~d .... (2) Every dealer to w~om sub-section (I) does not apply shall be liable to pay under this Act \l'ith effect from the commencement of the year immediately follo~~ing ~hat during which his gross turnover first exceeded Rs. 5,000 . Safrs Tax Officer, Cuttack v. B. C. l'alel & Co. The' goods were admittedly delivered for oonsumption at various places outside the State and the Sales Tax Officer as well as the Assist1tnt Collector in appeal, proceeding on the basis that the sales took place in the State, held that the respondents were liable to Sales Tax for all the five quarters, two of which fell before the commencement of the Constitution and three the;·eafter.• The contention of the respondents before the High Court was that the notification- under s. 4(1) of the Act was invalid as it ran counter to the provisions of that sub-section and no part of that charging section could, therefore, come into force. It was further contended that the assessment for the three quarters ' following the commencement of the Constitution was invalid by reason ot Art. 286 of the Constitution. The High Court found entirely in favour of the assessee: Held (per Das C. ]., Venkatarama Aiyar, S. K. Das and Vivian Bose, JJ.), that the decision of the High Court in so far as it related to tt1e three post-Constitution quarters was correct and must be upheld. The orders of assessment for those quarters contravened both Art. 286 of the Constitution ands. 3o(r)(a)(i) of the Orissa Sales Tax Act and were without jurisdiction and must be set aside. So far as the two pre-Constitution quarters were concerned, the assessees were clearly liable under s. 4(2) of the Act. Per Das C. J. and Venkatarama Aiyar J. The first part.of the impugned notification, appointing the date from which the liability was to commence, was in consonance with s. 4(r) of the Act and, therefore, clearly intra vires, whereas the second part, indicating the class of dealers on whom the liability was to fall, went beyond that section and must, therefor~. be held to be ultra vires and invalid. But since the two parts were severable, the invalidity of the second part could in no way affect the validity of the first part which brought the charging section into operation and the assessees were liable for the two pre-Constitution quarters under s. 4(1) as well. ' 1 Per S. K. Das and Vivian Bose JJ.-It would not be correct to say that the second part of the notification was a mere surplusage severable from the rest of the notification. Liability to pay.the . . ' • 522 SUPREME COURT REP01{,TS (1959] t958 tax under s. 4(1) of the Act could arise only on the issue of a. valid notification in conformity with the provisions of that sub-section Sales Tax Officer, and as there was no such notification the assessees were not liable Cuttack under s. 4(r) of the Act which did not come into operation. Subv. sections (I) and (2) of s. 4 are mutually exclusive, and their B. c. Paid & Co. periods of application being different both could not apply at the same time and no notification ~·as necessary to bring into oper~ tion sub-s. (2) of the Act. The goods having been admittedly sold and delivered for consumption outside the State of Orissa, under Art. 286 (1)(a) read with the Explanation as also under s. 30(1)(a)(i) of the Act, the sales were outside the State of Orissa and, consequently, the assessment for the three post-Constitution quarters were without jurisdiction. · The State of Bombay v. The United Motors (India) Ltd., [1953] S.C.R. 1069 and The Bengal Immunity Company Limited v. The State of Bihar, [1955] 2 S.C.R. 603, relied on. Per Sarkar J.-There could be no liability under s. -4(1) of the Act till a date was appointed thereunder, and where the notification, as in the instant case, fixing such a date, \Vas not in terms of that sub-clause, there was no fixing of a date at all and the sub-clause could not come into play and no liability could arise under it. It was impossible to ignore the second part of the notification in question as a mere surplusage since the notification read as a whole had one meaning and another without it. The Government could not be heard to say that what it had said in the notification was not what it actually meant. Both the sub-clauses of s. 4 having been brought into force at the same time by the same notification, they applied to all dealers together and contemplated a situation in which the liability of a dealer under sub-cl. (1) might arise. It was apparent from the scheme of the Act that sub-cl. (2) was not intended to have any operation till a date was appointed under sub-cl. (1) and a liability under it might have arisen. CIVIL APPEI,LATE JURISDICTION: Civil Appeal No. 230 of 1956 .. Appeal by special leave from the judgment and order dated April 12, 1955, of the Orissa High Court in 0. J.C. No~ 60 of 1952. 0. K. Daphtary, Solicitor-General of India, R: Ganapathi Iyer and R. H. Dhebar, for the appellants. S. N. Andley, J. B. Dadachanji and Rames~war l! ath, for the respondent. 1958. April 15. The Judgment of Das C, J. and . . • • ' ' '• • S.C.R. SUPREME COURT REPORTS 523 Venkatarama Aiyar J. was delivered by Das C. J. The Judgment of S. K. Das and Vivian Bose JJ. was delivered by S. K. Das J. Sarkar J. delivered a separate judgment. · DAS C. J.-We agree that this appeal must be allowed in part but we prefer to rest our judgment on one of the material points on a ground which is different f11om that adopted by our learned Brother S. K. Das J. in the judgment which has just been delivered by. him and which we have had the ad\ antage of perusmg. The Orissa Sales Tax Act, 1947 (Orissa XIV of 194 7), hereinafter referred to as the said Act received .the assent of the Goyernor:General on April 26, 1947, whens. 1 of :the Act came into force. On August 1, 1947, a Notification was issued by ~he Government of Oris~a bringing the rest of the said Act into force in the Province of Orissa, as ·it was then constituted. Section 4, as it stood at all times material to this appeal, ran as follows: "4(1) Subject to the provisions of sections 5, 6, 7 and 8 and with effect from such date as the Provincial Government may, by notification in the Gazette, appoint, being not earlier than thirty days after the date of the said.notification, every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified: Provided that the tax shall not be payable on sale involved in the execution of a-contract which is shown .to the satisfaction of the Collector to have been. entered into by the dealer concerned on or before the date so notified. (2) Every dealer to whom sub-section (1) does nqt apply shall be liable to pay tax under 'this Act with effect from the commencement of the year immediately following that during which his gross turnover first exceeded Rs. 5,000 . • (3) Every dealer who -has become liable to pay tax under this Act shall continue to be so liable until the expiry of three consecutive years, during each of • • Sales Tax Officer, Cuttack v. B. C. Patel & Co. Das C. ]. Sales Tax Officer, Cutt a ck v. B. C. Pearl & Co. Das~.]. 524 SUPREME COURT REPORTS [1959] which ·his gross turnover has failed to exceed Rs. 5,000 and such further period after the date of such expiry as may be prescribed and on the expiry of this latter period his liability to pay tax shall cease. (4) Every dealer whose liability to pay tax has ceased under the provisions of sub-section (3) shall again be liable to pay tax under this Act with effect from the commencement. of the year immediateiy following that during which his gross turnover again exceeds Rs. 5,000." On August 14, 1947, a notification was issued by the Government of Orissa appointing September 30, 1947, as the date with effect from which that sub-section was to come into force in the then province of Orissa. On January 1, 19!8, by a covenant of merger executed by its ruler, the feudatory State of Pallahara merged into the province of Orisstt. In exercise of the powers delegated to it by the Government of India under what was then known as the Extra Provincial Jurisdiction Act, 1947, the Government of Orissa on December 14, 1948, issued a notification under s. 4 of that Extra Provincial Jurisdiction Act, extending the Orissa Sales Tax Act to the territories of the erstwhile feudatory States, including Pallahara · which had merged into the province of Orissa. On March 1, 1949, a notification under s. 1(3) was issued by the Government of Orissa bringing ss. 2 to 29 of the said Act into force in the added territories. On the same da v another notification w~s issued under s. 4(1) of the Act, which was in the following terms : • " In exercise of the powers conferred by Sn b-sectiort ( 1) of Section 4 of the Orissa Sales Tax Act, 194 7 (Orissa Act XIV- of 1947) as applied to Orissa State, the Government of Orissa are pleased to appoint the 31st March, 1949, as the date with effect from which every dealer" whose gross turnover during the year ending the 31st March, 1949, exceeded Rs. 5,000 shall be liable to pay tax under the said Act on sales effected after the said date." It was after this notification had been issued tha.t the -respondents were sought to be made liable to tax. The respondents were assessed under the said Act • • • • • ' • ' '• • . !-- s.c.R: SUPREME COURT REPORTS 525 for five quarters ending respectively on September 30, r95S 1949, December 3f, 1949, June 30, 1950, September 5 1 ;-0ffi 30, 1950, and December 31, 1950. It will be noticed a "cu::ack icer, that the first two quarters related to a period prior to v. the commencement of the Constitution and the remainB. c. Patel & Co. ing three quarters fell after the Constitution came into force. The Sales Tax Officer, Cuttack having assessed Das c. J. the respondents to Sales Tax under the said Act for each and all of the said five quarters and the respondent's several appeals against the said several assessment orders under the said Act having been pismissed on April 12, 1952, the respondents filed a petition under Art. 226 of the Constitution in the Orissa High Court praying, inter alia, for a writ in the nature of a writ oj certiorari for quashing the said assessment vrder~ and for prohi.biting the appellantR from realising the tax so assessed or _from maki1ig assessments on them in future. The contention of the respondents before the High Court was that the notification issued by t-he Government of Orissa on March 1, 1949, under s. 4(1) being invalid in that it ran counter to the provisions of that sub-section, no part of the charging section came into force' and consequently they were not liable to tax at all for any of the five quarters. As regards the three quarters following the commencement of the Constitution, they urged an additional plea, namely, that the assessment orders for those three quarters were invalid by rea;son of the provisions of Art. 286 of the Constitution. The High Court accepted both these contentions and by its judgment and order pronounced on April 12, 1955, cancelled the assessments. The Sales Tax Officer, Cuttack, and· the Collector of Commercial Taxes, Cuttack, have appealed against the judgment and order of the High Court. _ • As regards the assessment orders for the three post. Constitution quarters, the decision of the High Court purport('! to have proceeded on the decision of this Court in the State of Bombay v. United .Motors (India) Ltd. (1). We find oqrselves in complete agreement with (1) [1953) S.C.R ro69. \ • ~ . • Sales Tax Officer, Cul tack v. B. C. J>iilrl &- Co. Das C. ]. 526 SUPREME COURT REPORTS "[1959] our learned Brother S. K. Das J. for reasons stated by him that the assessment orders for the three postConstitution quarters were hit by cl. (1) of Art. 286 and also s. 30 (1) (a) (i) of the Act and were rightly held by the High Court to be without jurisdiction. It is with regard to the assessment orders for the two pre-Constitution quarters that we have come to a conclusion different from that to which our learhed Brother has arrived. We proceed to state our reasons. The impugned notification, as hereinbefore stated, was issued on March 1, 1949, under s. 4 (1) of the said Act. Under that sub-section every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded Rs. 5,000 would be liable to pay the tax under the Act o~ sales effected after the date "so notified'', that is to sav, the date which the provincial Government might by notificationin the Gazette appoint. It is clear, therefore, that s. 4 (1) by its @wn terms determined the persons on w horn the tax liability would fall but left it to the provincial Government only to appoint the date with effect from which the tax liability would commence. It follows, therefore, that the only power conferred by s. 4(1) on the Government was to appoint, by a notification in the Official Gazette, a date with effect from which the tax liability would attach to the dealers described and specified in the sub-section itself as the persons on whom that liability would fall. The Government of Orissa issued the .notification, hereinbefore quoted, " in exercise of the powers conferred by sub-section (1) of section 4" and appointed March 31, 1949, as the date with effect from which the tax liability would commence. It was none of the busiq,ess of the Government of Orissa to say on what class of dealers the tax liability would fall, for that had been already determined by the sub-section itself. Therefore, by the notification the Government of Orissa properly exercised its powers under imb-s. (1) in so far as it appointed March 31, 1949, as th~ date, but it exceeded its powers by proceeding to say that all dealers whose gross turnover during the year ending . - . • ' , • • • S.C.R. SUPREME COURT REPORTS 527 March 31, 1949, exceeded Rs. 5,000 should be liable to pay tax qnder the Act. This part of the notification clearly ran counter to the sμb-section itself, for under that sub-section it is only those dealers whose Safo~ Tax Offioer, Cutfack v. gross turnover exceeded Rs. 5,000 "during the year B. c. Patel & Co. immediately preceding the commencement of this Act" that became liable to pay the tax. For the purposes of 'the five assessment orders it made no difference whether the ·Act is taken to have commenced on December 14, 1948, when it was extended to the feudatory States by notifica.tion under s. 4 of the Extra Provincial Jurisdiction Act, 1947, or on March 1, 1949, when the notification under s. 1 (3) was issued, for in either case the year immediately preceding the commencement of this Act was April 1, 1947, to March. 31, 1948. The position, therefore, is that by the earlier part of the impugned notification the Government of Orissa properly and rightly exercised its power in appointing March 31, 1949, as the date with effect from which the liability to pay tax under the Act would commence, but by its latter part did' something more which it had no business to do, i.e., to indicate, contrary to the sub-seetion itself, that those dealers whose gross turnover during the year ending on March 31, 1949, would be liable to pay tax under . the Act. The notification in/ so far as it purports to determine the class of dealers on whom the tax liability would fall, was certainly invalid. The question that immediately arises is· as to whether the whole notification should be adjudged invalid as has been done by the High Court and as is proposed to b~ done by my learned Brother S. K. Das J. or the two portions of the notification should be severed and effect should be given to the earlier part which is in conformity with s. 4(1) and the latter J:>art which goes beyond the powers conferred by the sub-section to the Government of Orissa should be . rejected. Immediately the questiim of severability arises. Are the two portions severable? We find no difficulty in holdirrg that the portion of the notification' which went beyond the powers conferred on the Government of Orissa is quite clearly and easjly severable from that . . . • • Das C. ]. 528 SUPREME COURT REPORTS. [19591 which w.ts within its powers. It cannot possibly be Sales Tax Officer, said that had the Government of Orissa known that cu11ack it had no power to determine the persons on whom v. the tax liability would fall it would not have appointB. C; Patel&Co. eel a date at all. In our view there is no'question of Das C. ]. the two parts being inextricably wound up. We, therefore, hold that the notification, in so far as it appointed March 31, 1949, as the date with effect frbm which liability to pay tax would commence was valid and the test of the notification was invalid and must be treated as surplus without any legal efficacy. The . result, therefore, is that the charging section was effectively brought into force and the entire charging section became operative and dealers could be pro. perly brought to charge under the appropriate part of the charging section. • It is true that the notification having also stated that the dealers, whose gross turnover exceeded Rs. 5,000 during the year ending March 31, 1949, would be liable to pay the tax, the sales tax authorities naturally applied their mind to the question whether during the year ending March 31, 1949, the gross turno¥cr of tN.e respondents exceeded the requisite amount, but did not inquire into the question whether the respondent's gross turnover exceeded J{.s. 5,000 during the year immediately preceding the commencement of the Act which in this case was the financial year from April I, 1947 to March 31, 1948. · lf the matter stood there, it would have been necessary to. send the case back to the i-lales Tax Officer to enquire· into and ascertain whether the quantum of the gross turnover of the respondents during the last mentioned financial year ending on March 31, 1948, exceeded Rs. 5,000 or it did not. But a remand is not called for because it appears from the judgment under appeal that it was conceded that for the period Aprill, 1949, till the commencement of the Constitution on January 26, 1950,'the respondents would haye been liable to pay sales tax provided a valid notification ha cl been issued, under sub-s. ( 1) of s. 4. • This · concession clearly amounts to an admission that the "ross turnover of the respondents during the financial 0. • • • ' .. ' ' , $.C.R. SUPREME COURT REPORTS 529 year ending on March 31, 1948, which was the year r958 immediately preceding March 31, 1949, exceeded Rs. 5,000. We have already held that the notificaSales Tax Office~, • d C1tllack tion issued under s. 4(1) in so far as it appomte March 31, 1949, as the date with effect from which B. c. p:i·,1 & co. the liability to pay sales tax would commence was good and valid in law. That finding coupled with Das c. J. the concession mentioned above relieves us from the necessity of remanding the case to the sales tax authorities. Even if we assume, contrary to the aforesaid concession, that the gross turnover of the respondents during the financial year ending ·on March 31, 1948, did not exceed Rs. 5,000 and, therefore, s. 4 (1) did not apply to them the r~spondents will still be liable to pay the sales tax for the two preCo9stitution quarters under s. 4 (2). ]'or reasons stated above we hold that the assessment orders for the three post-Constitution quarters were invalid and we accordingly agree that this appeal, in so far as it is against that part of the order of the High· Court which cancelled the assessment orders for those three post-Constitution quarters, should be dismissed. We further hold that the assessments for the two pre-Constitution quarters were valid for reasons stated above and accordingly we agree in allowing this appeal in so. far as it is against that part of the order of the High Court which. cancelled the assessment orders for the two pre-Constitution quarters on the ground that the notification issued under s. 4 (I) of the Act was whollv invalid. Under the circumstances of this case "we also agree that the parties should bear their own costs iri the High Court as well as in this Court. S. K. DAs J.-This appeal on behalf of the assessing s. K. Das J. authorities, Cuttack, has been brought ~ursuant to an order made on January 17, 1956, granting them special le~ve to appeal to this Court from the judgment and order of the High Court of Orissa dated April 12, 1955, by which the High Court quashed certain orders of ass~ssment of sales tax made against the responden~. The short facts are these. The respondent, Messrs. B. C. Patel and Co., is a partnership. firm carrying on 530 SUPREME COURT REPORTS [1959] r958 the business of collection and sale of Ken du lea vee. The firm has its headquarters at Pallahara, which was Sales T.ax O!fi.cer, .c 1 f h 10 S f d Cuttack 1ormer y one o t e ,,'eudatory , tates o Orissa an v. merged in the then province of Orissa by a merger B. c. Patel & Co, agreement dated January 1, 1948. The Sales Tax authorities, Cuttack, in the State of Orissa, assessed s. I<. Das J. the respondent to sales tax in respect of sales of Kendu leaves which took place for five quarters ending on• September 30, 1949, December 31, 1949, June 30, 1950, September 30, 1950 and December 31, 1950. It should be noted that two of the aforesaid quarters related to a period prior to the commencement of the Constitution, and the remaining three quarters were post-Constitution. The facts which the Sales Tax authorities . found were (l) that the respondent collected Kendu leaves in Orissa and sold them to various merchapts of Calcutta, Madras and other places on receipt of orders from them, (2) that the goods were sent either f. o. r. Talchcr or f. o. r. Calcutta, and (3) the sale price was realised by sending the bills to the purchasers for payment. The admitted position was that the goods were delivered for consumption at various places outside the State of Orissa. The Sales Tax authorities proceeded on the footing that all the sales took place in Orissa even though the goods were delivered for consumption at places outside Orissa. By five separate assessment orders dated May 31, 1951, the Sales Tax Officer, Cuttack, held that the sales having taken place in Orissa, the respondent was clear1y liable to sales tax for the pre-Constitution period and, for the post-Constitution period, though the sales came within cl. ( 2) of Art. 286 of the Constitution, the respondent was liable to sales tax under the Sales Tax Continuance Order, 1950, made by the President. These findings were affirmed by the Assi8tant Collector of Sales Tax, Orissa, on appeal, by his order dated April 12, 1952. The respondent assessee then filed a petition under Art. 226 of the Constitution in the High ·court of Orissa and prayed for the issue of a writ of certiorari or other appropriate writ quashing the aforesaid orders of assessment. The case of the respondent before the HigQ. Court was t.hat the asse~sment orders, both with • ,. • • . .( S.O.R. SUPREME COURT REPORTS 531 regard to the pre-Constitution and post-Constitution I958 periods, were invalid and without jurisdiction. The High Court accepted the case of the respondent and SalescTa:. Ok'fficer, l d .c l . . d itltac held that tie assessment 'or ers ~or tie entire per10 v. were invalid and without jurisdiction. The present B. c. Patel$ Co. appeal has been brought from the aforesaid judgment and order of the High Court of Orissa dated April 12, s. IC Das J. 1955. Though before the Sales Tax authorities and in . the High Court, an attempt was made on behalf of the respondent assessee to show that there were no completed sales in Orissa and what took place in Orissa was a mere agreement to sell, that question is no longer at large before us. The· Sales Tax authorities found against the respondent on that question and the High Court did not consider it necessary to decide it on the petition filed by the respondent. The High Court proceeded on certain other grounds pressed before it by the respondent, and we proceed now to consider the validity of those grounds. The grounds are different in respect of the two periods, pre-Constitution, and post-Constitution, and it will be convenient to take these two periods separately. But before we do so, it is necessary to state some facts with regard to the enactment and enforcement of the Orissa Sales Tax Act, 1947 (Orissa XIV of 1947), hereinafter referred to as the Act, in the old province of Orissa and the ·ex-Feudatory State of Pallahara. The Act received the assent of the Governor General on April 26, 1947, and was first published in the Orissa Gazette on lVIay 14, 1947. Section I came into force at once in the old province of Orissa and sub-s. (3) of that section said that " the rest of the Act shall come into force on such date as the Provincial Government may, by notification in the Gazette, aripoint ". The Provincial Government of Orissa notified August I, 1947, as the date on which the rest of the Act was to come into force in the province of Orissa. It iii necessary at this stage to refer to the charging section, nan1'ely s. 4 of the Act, which is set out below as it stood at the relevant time: "4. (I) Subject 1o the. provisions of $ections 5 1~1 1 • S"lts Tax Officer, Cuttack v. B. C. 'Patel (S- Co. S. K. Vas ]. 5~2 SUPREME COUR'l' REPORTS (1959) and 8 and with effect from such date as the Provincial Government may, by notification in the Gazette, appoint, being not earlier than thirty days after the date of the said notification, every dealer whose gross tllrnover during the year immediately precedin" the commencement of this Act exceeded Rs. 5,000 sh~ll be liable to pay tax under the Act on sales effected after the date so notified. • ................................................................... (2) Every dealer to whom sub-section (1) does not apply shall be liable to pay tax under this Act with effect from the commencement of the year immediately following that during which his g.ross turnover first exceeded Rs. 5,000. • (3) Every dealer who has become liable to pay tax under this Act shall continue to be so liable until the expiry of three consecutive years, during each of which his gross turnover has failed to exceed Rs. 5,000 and such further period after the date of such expiry A.R may be prescribed and on the expiry of thrs latter period his liability to pay tax shall cease. (4) Every dealer whose liability to pay tax has ceased under the provision of sub-section (3) shall again be liable to pay tax under this Act with effect from ·the commencement of the year immediately following that during which his gross turnover again exceeds Rs. 5,000." It is to be noticed that for a liability to arise under sub-s. (1) of s. 4, a notification by the Provincial Government is necessary, and the notification must fix the date from which every dealer whose gross turnover during the year.immediately preceding the commencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified. ~uch a notification was issued for the old province of Orissa on August 30, 1947, and September 30, 1947, was fixed as the date with effect from which ·every dealer whose gross turnover during the yeu,r ending March 31, 1947, exceeded Rs. 5,000 was made liable to pay tax under the Act on sales effected after the said date. This was the position in the old pro-' villlle of Orissa.. We have. already stated that the • • S.C.R. SUPREME COURT REPORTS 533 ex-:Feun'fixed s·eptember 30, 194 7, as the relevant da.te, and the year immediately preceding '• ..... • S.C.R. SUPREME COURT REPORTS 5S5 the commen9ement of .the . Act in the old province ryss of Orissa. was the relevant period, viz., the financial - Yea.r 1946c47 i.e. April 1. 1946toMarch311947. SalesTaxO(ficer, ' ' · ' ' . Cuttack Therefore dealers whose gross .turnover exceeded · v. Rs. 5,000 in 1946-47, became liable urider sub-s. (1) of n. c. Patel & co. s; · 4 to tax on transactions of sale after September 30, 19~ 7, in the old province of Orissa. The notification s. J<. Das J. for the Orissa States, however, fixed March 31, 1949, as ·the . relevant date ; but in determining the class of dealers who would be subject to the liability, it took the year ending March 31, 1949, . as the relevant period. This was clearly a mistake, ·because under sub-s. (1) of s. 4 the crucial year is the year immediately preceding the commencement of the Act. The Act commenced in the Orissa States either on December 14, 1948, •or on March 1, 1949, and' the financial year immediately preceding was the year 1947-48, i.e., April 1, 1947 to March 31, 1948. The notification Would have been in consonance with the sub-section, if it had mentioned the year ending March 31, 1948, (instead of March 31, 1949) as the crucial year for determining the class of dealers who would be subject to the liability under sub-s. (1) of s. 4. This mistake in the notification is the · ground on which the High Court held th~t the assessments for the two quarters of the pre-Constitution period were invalid and without jurisdiction. ·The learned Solicitor-General who has appeared fo'r the appellants has conceded that a mistake was' made in the notification. However, he has argued~firstly, that the mistake was immaterial and secondly, tha1' the assessment orders for the pre-Constitution period were justified under sub-s. (2) of s. 4. As to the first' argument that the mistake was immaterial, he has submitted that the liability to tax arosti under the stio-seetion and not undpr the notification, and any mistake in the notification did not affect such liability; h'e has ·also submitted that the words and figures ,Y,hicli,.gave rise to the mistake were mere surplusage ah'd' could he severed fro in the· rest of the notification;' We are mfable to accept this argument. Fiora liability to 1 arise· qrtdel' sub-s. (1) ~of s. 4, 'Ui.e · issue' ·of .a, • Sc1lcs Tax Officer, Cu/lack v. 11. C. Patel/'.,., Co. S. J{. lJas J. 536 SUPREME COURT REPOHTS [1959] notification is an essential prerequisite, and unless the notification complies with the requirements of the sub-section, no liability to tax can arise under it. The notification not only fixed the relevrmt date, but fixed the relevant period for determining the class of dealers who would be subject to the liability. In doing so, it made a· mistake, the result of which was that the notification was not in conformity with the ]a,L \Ve do not think that it can be se;:ered in tho 'my suggested by the learned Bolicitor General. :Now, we come to the second •wgument-whether the pre-Constitution assessment orders are justified under su h-s. (2) of s. 4. The High Court held that they wf.re not, and gave two reaso1rn for its view : one was that sub-sections (I) and (2) were mutually excJusfrc and the other 'ras based on the O}iening words of snb-s. (2), which says that "every dealer tq "hum sub-section (1) docs not apply etc." The High Court expressed the view that if tho notification under snb-s. {l) WE're correctly dra'rn np, the sub-section would have applied to the respondent; therefore, the opening words of sub-s. (2) barred the application of the sub-sect ion to the respondent. At first sight, there appears to be some force in this dew. But on a closer examination we do not think that the vic11· expressed by tlw High Court is correct.. Sub-sections (I) and (2) are mutually exclusive only in the sense that 1 hey do not operate in the snme field ; that is, the relevant periods for their application are different. The rele\·ant period for the •>pplica.tion of snb-s. (1) is '•'the year immerlintdy preceding the commencement of the Act." Su Ji-sect ion (2) however does not require a.ny notification, and nncler .it cver.v dealer is liable to pay tax under the A.cl with effect from the commencement of thPo yca.r immediately following that during which his gross turnover fint exceeded Rs. 5,000. Obviously, the relevant period for the application of E.nb-s. (2) is the ;\'Par immediately following that during which the gross turnm·er of a dealer first exceeded Hs. 5,000. The contrast between tlie two · sub-sections is this: for sub-s. (1) the crucial year is thf year iimne.diately prec~ding the cormnenceinent of • • J' • • S.C.R. SUPREME COURT BEPORTS 537 the Act; but for sub-s. (2) the crucial year is the i95S year in which the dealer's gross turnover first exceedSales Tax Officer. ed Rs. 5,000. We ageee that for the same relevant cuitack year both sub-sections (1) and (2) cannot apply, v. because snb-s. (2) says-" Every dealer to whom subB. c. Patel &- Co. s. (1) does not ::tpply etc." Let us, for example, take tpe year 194'6-47 in the old province of Orissa. That 5 · I<.