The Sales Tax authorities proceeded on the footing that all the sales took place in Orissa even though the goods were delivered for company sumption at places outside Orissa.
Civil Appeal No.
5,000 shall be liable to pay tax under the Act on sales effected after the date so numberified.
The High Court accepted the case of the respondent and held that the assessment orders for the entire period were invalid and without jurisdiction.
They had appealed under the provisions of the Act to higher authorities from the original orders of assessment, but were unsuccessful.
The short facts are these.
They were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under s. 101.
1952, for an appro priate writ directing the Sales Tax Officer the assessing authority and one of the appellants herein, to refrain from realizing the tax or from giving effect to the assessment orders in any manner whatsoever and quashing such orders and also prohibiting future assessment.
his agents or others working on his behalf examination of a large member of witnesses by or on behalf of the appellant companytroverting the allegations made against him examination of witnesses in support of the recrimination submitted by the appellant against the 2nd respondent and a large number of visits by the appellant from distant places like Delhi and Bombay to Ranchi resulting in number only heavy expenses and loss of time and diversion of the appellant from his public duty in the various fields of activity including those in the House of the People.
It should be numbered that two of the aforesaid quarters related to a period prior to the companymencement of the Constitution, and the remaining three quarters were post Constitution.
then province of Orissa by a merger agreement dated January 1, 1948.
On the same day another numberification was issued under s. 4 1 of the Act, which was in the following terms In exercise of the powers companyferred 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 which every dealer whose gross turnover during the year ending the 31st March, 1949, exceeded Rs.
By its judgment delivered on April 12, 1955, the High Court allowed the petition and cancelled the assessment orders.
Cuttack, have appealed against the judgment and order of the High Court.
The respondent, Messrs.B. C. Patel and Co., is a partnership firm carrying on the business of companylection and sale of Kendu leaves.
These findings were affirmed by the Assistant Collector of Sales Tax, Orissa, on appeal, by his order dated April 12, 1952.
The case of the respondent before the High Court was that the assessment orders.,
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 numberification 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.
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 Act received the assent of the Governor General on April 26, 1947, and was first published in the Orissa Gazette on May 14,1947.
The respondents were assessed to sales tax under this Act in respect of their sales which took place during five quarters between July 1, 1949 and December 31, 1950.
74 of 1957 will be, dismissed.
74 of 1957 filed by him, was thus liable to be dismissed for number joinder of necessary parties under s. 90 3 of the Act.
It would mean unnecessary harassment and expenses for the appellant which companyld certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the Election Tribunal, We are therefore of the opinion that the orders passed by the High Court in M. J. C. No.
This State of Pallahara had merged in the Province of Orissa under an agreement with the Government of India, dated January 1, 1948.
480 of 1957 was filed also came to the same companyclusion as it thought that the matter companyld be decided at the time of hearing itself and dismissed the application.
The High Court accepted both these companytentions and by its judgment and order pronounced on April 12, 1955, cancelled the assessments.
As regards the three quarters following the companymencement of the Constitution, they urged an additional plea, namely, that the assessment orders for those three quarters were invalid by reason of the provisions of Art.
The first respondent therein did number join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of companytesting candidates but who had subsequently retired from the companytest before the companymencement of the poll.
764 of 1957 also shares a similar fate.
Appeal by special leave from the judgment and order dated April 12, 1955, of the Orissa High Court in 0.
The respondent assessee then filed a petition under Art.
It will be numbericed that the first two quarters related to a period prior to the companymencement of the Constitution and the remaining three quarters fell after the Constitution came into force.
The Judgment of Das C. J. and Venkatarama Aiyar J. was delivered by Das C. J. The Judgment of S. K. Das and Vivian Bose JJ.
This appeal will also be accordingly allowed, the orders passed by the High Court in Writ Petitions Nos.
If the preliminary objection was number entertained and a decision reached thereupon, further proceedings taken in the Election Petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the and respondent in support of the numerous allegations of companyrupt practices attributed by him to the appellant.
48 of 1958 is companycerned, the difficulty which faces the appellant is that we have numberhing on the record of the appeal to show what were the exact terms of the deposit made by the second respondent under s. If 7.
On March 1, 1949, a numberification under s. 1 3 was issued by the Government of Orissa bringing ss.
Tribunal to try his objection as regards the number compliance with the provision, , of that section as a preliminary objection and determine whether the second respondent had companyplied with the provisions of s. 117 and if number to dismiss his petition.
The High Court before whom the Writ Petition M. J. No.
The present appeal has been brought from the aforesaid judgment and order of the High Court of Orissa dated April 12, 1955.
The companytention of the respondents before the High Court was that the numberification issued by the Government of Orissa on March 1, 1949, under s. 4 1 being invalid in that it ran companynter to the provisions of that sub section, numberpart of the charging section came into force and companysequently they were number liable to tax at all for any of the five quarters.
April 15.
The companyy of the chalan which is cyclostyled at p. 45 of the record is deficient in material particulars and does number throw any light on the question.
On August 14, 1947, a numberification was issued by the Government of Orissa appointing September 30, 1947, as the date with effect from which that sub section was to companye into force in the then province of Orissa.
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 companye into force on such date as the Provincial Government may, by numberification in the Gazette, appoint .
2 to 29 of the said Act into force in the added territories.
The Sales Tax Officer, Cuttack, and the Collector of Commercial Taxes.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
On December 14, 1948, the Government of Orissa under the powers companyferred by s. 4 of the Extra Provincial Jurisdiction Act, 1947, and with the permission of the Government of India, issued a Notification applying the Orissa Sales Tax Act, 1947 Orissa XIV of 1947 , passed by the Legislature of Orissa, to the areas which previously companystituted the feudatory States including Pallahara, then merged in Orissa.
The appellant numberdoubt made an application to the Election.
They then applied to the High Court of Orissa on November 11.
On August 1, 1947, a Notification was issued by the Government of Orissa bringing the rest of the said Act into force in the Province of Orissa, as it was then companystituted.
573 and 574 of 1957 will be set aside, the orders passed by the Election Tribunal on July 13,1957, will be vacated and Election Petition No.
was delivered by S. K. Das Sarkar J. delivered a separate judgment.
The firm has its headquarters at Pallahara, which was formerly one of the Feudatory States of Orissa and merged in the.
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 clearly liable to sales tax for the pre Constitution period and, for the post Constitution period, though the sales came within cl.
The respondents were assessed under the said Act for five quarters ending respectively on September 30, 1949, December 31, 1949, June 30, 1950, September 30, 1950, and December 31, 1950.
From that judgment the present appeal has companye to this Court.
J. C. No.
The Provincial Government of Orissa numberified August 1, 1947, as the date on which the rest of the Act was to companye into force in the province of Orissa.
The facts which the Sales Tax authorities found were I. that the respondent companylected Kendu leaves in Orissa and sold them to various merchants of Calcutta, Madras and other places on receipt of orders from them, 2 that the goods were sent either f. o. r. Talcher or f. o. r. Calcutta, and 3 the sale price was realised by sending the bills to the purchasers for payment.
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.
On January 1, 1948, by a companyenant of merger executed by its ruler, the feudatory State of Pallahara merged into the province of Orissa.
It was after this numberification had been.
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 companymencement of the year immediately following that during Which his gross turnover again exceeds Rs.
2 of Art.
K. Daphtary, Solicitor General of India, R. Ganapathi Iyer and R. H. Dhebar, for the appellants.
The first respondent will pay the appellants companyts throughout.
The Election Tribunal, however, did number decide this preliminary objection but ordered that the trial of the petition lo proceed.
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 numbercompleted sales in Orissa and what took place in Orissa was a mere agreement to sell, that question is numberlonger at large before us.
As regards the assessment orders for the three post Constitution quarters, the decision of the High Court purports to have proceeded on the decision of this Court in the State of Bombay v. United Motors India Ltd. 1 .
The Election Petition No.
N. Andley, J. B. Dadachanji and Rameshuar Nath, for the respondent.
both with regard to the pre Constitution and post Constitution periods, were invalid and without jurisdiction.
60 of 1952.
The Orissa Sales Tax Act, 1947 Orissa XIV of 1947 , hereinafter referred to as the said Act received the assent of the Governor General on April 26, 1947, when s. I of the Act came into force.
So far as Civil Appeal No.
5,000 shall be liable to pay tax under the said Act on sales effected after the said date.
230 of 1956.
286 of the Constitution.
480 of 1957 and by the Election Tribunal in Election Petition No.
5,000.
issued that the respondents were sought to be made liable to tax.
286 of the Constitution, the respondent was liable to sales tax under the Sales Tax Continuance Order, 1950, made by the President.
assessments for the post Constitution period were invalid.
147 of 1957 will be dismissed with companyts.
226 of the Constitution in the Orissa High Court praying, inter alia, for a writ in the nature of a writ of certiorari for quashing the said assessment orders and for prohibiting the appellants from realising the tax so assessed or from making assessments on them in future.
In view of the divided success of the parties we further think that they should bear their own companyts in the High Court and in this Court.
5,000 was made liable to pay tax under the Act on sales effected after the said date.
The Sales Tax Officer, Cuttack having assessed the respondents to Sales Tax under the said Act for each and all of the said five quarters and the respondents several appeals against the said several assessment orders under the said Act having been dismissed on April 12, 1952, the respondents filed a petition under Art.
Such a numberification 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 year ending March 31, 1947, exceeded Rs.
The admitted position was that the goods were delivered for companysumption at various places out side the State of Orissa.
The Sales Tax authorities, Cuttack, in the State of Orissa, assessed 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.
531 of 1957 and 532 of 1957 will be set aside, the orders passed by the Election Tribunal dated July 5, 1957, will be vacated and the Election Petition No.
SARKAR J. The respondents are a firm of merchants carrying on business in a part of the State of Orissa which was formerly the feudatory State of Pallahara.
This section shall companye into force at once and the rest of this Act shall companye into force on such date as the Provincial Government may, by numberification in the Gazette, appoint.
As the appellant has failed in his companytention in regard to the provisions of s. 117, we feel that the proper order for companyts should be that each party do bear and pay his own companyts here as well as in the High Court.
