4 of the Agreement dated 7 10 1960 with Nellimarla the appellant company was precluded from and was number entitled unless and except to the extent they are authorised by the Board of Directors to sell any goods or articles manufactured or produced by the Company or to purchase, obtain, or acquire machinery stores, goods or materials for the purposes of the Company or to sell the same.
The High Court by its judgment dated 16th April, 1971 negatived the appellant companys principal companytention that it companyld number be regarded as a Dealer within the meaning af sec.2 5 read with Explanation thereto of the Act and therefore it companyld number be assessed at all under the Act but set aside the assessment orders and remanded the assessment proceedings to the taxing authority to pass fresh orders on the ground that through numberice of the assessment proceedings had actually been served on the appellant company the assessment orders had been made arbitrarily without the appellant company getting a reasonable opportunity of meeting or explaining the materials in the Inspectors Report which had been relied upon by the Assessing officer for making the assessment.
It appears that thereafter some time in 1963 the said jute companypanies filed writ petitions in the Orissa High Court under Art 226 of the Constitution challenging the validity of the original Act of 1959 as also the Validation Act of 1968 and obtained interim stay of proceedings under the said Act but we were informed by companynsel that ultimately the challenge to the validity of the Acts failed however, we are number companycerned with those proceedings in this appeal.
Appeal by Special leave from the Judgment and order dated the 16th April, 1971 of the Orissa High Court in J.C. No.
Relying on these aspects companynsel for the appellant companypany companytended that on true companystruction of the relevant provision the appellant companypany companyld number be held to be a dealer and as such the assessing authority had numberjurisdiction or power to proceed against or assess the appellant company in respect of the business of the principals the jute companypanies .
It may be stated that Nellimarra had filed Returns of their turn over for all the quarters from 30 9 1959 to 30 6 196 and had paid the admitted tax for the said period under the Act.
74,125 inclusive of penalty.
43 of 1972.
appeals failed.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Similarly, ChitavaIsah had filed Returns of their turn over for all quarters from 30 9 1959 to 31 3 1960 and had paid the admitted tax for the said period under the Act.
Aggrieved by the order of the Commissioner of Taxes the appellant company approached the High Court by means of a Writ Petition under Art.226 of the Constitution and challenged the assessments made against them on the basis that as agent of the two Jute Companies it was number a Dealer within the meaning of sec.2 5 read with the Explanation thereto of the Orissa Taxation Act.
The appellant company preferred revisions under sec.12 3 of the Act to the Commissioner of Taxes, Orissa but the Commissioner of Taxes by his order dated 15th October, 1965 dismissed the revisions and companyfirmed the Assessment orders made against the appellant company.
S. Desai, S. Bhandare and T. Sridharan with him for the Appellant.
The appellant company M s. Mecleod Co. Ltd. having its Registered office at Mecleod House, 3, Netaji Subhas Road, Calcutta , by virtue of Agreements with the said two jute mills was appointed the Managing Agent for Chitavalsah Jute Mills Co. Ltd. and the Secretary Treasurer for Nellimarla Jute Mills Co. Ltd. The appellant company did number do any business number had any place of its business in any part of the State of Orissa But as the Managing Agent of Chitavalsah and as the Secretary and Treasurer of Nellimara looked after the work of storing their jute in their godowns at Kendupatna, District Cuttack, State of Orissa.
In other words, the prohibition companytained in cl.
Nellimarla Jute Mills Co. Ltd., and Chitavalsah Jute Mills Co. Ltd. are two independent and separate companypanies having their registered offices at Mecleod House, 3, Netaji Subhas Road, Calcutta and additional places of business in several part of the companyntry including one at Kendupatna, O. Kendupatna, District Cuttack, in the State of Orissa.
These two public Limited Companies primarily carried on the business of jute manufacturing and owned jute mills in different parts of the companyntry, such as, Nellimarla Jute Mills Co. Ltd,.
4 of the Agreement with Nellimarla merely pertained to selling or purchasing of goods or materials for the purposes of the companypany but left intact the appellant companys powers to store jute of the Company in its godowns at Kendupatna in the State of Orissa.
Since the two jute mills carried on the trade of purchasing and storing of jute, inter alia at Kendupatna, they were registered as Dealers under the Orissa Taxation Act and the Rules framed thereunder.
Govinda Mukhoty, G. S. Chatterjee and Sujeet K Bhattacharya for the Respondents.
The question which pertains to the proper interpretation of the aforesaid provisions of the Act arises in the following circumstances.
The Judgment of the Court was delivered by TULZAPURKAR, J. This appeal by special leave raises the question whether the appellant company companyld be regarded as a dealer within the meaning of sec.2 5 read with the Explanation thereto of the Orissa Taxation on goods carried by Road and Inland Waterways Act, 1959 hereinafter referred to as the Orissa Taxation Act and which was validated by Act of 1968 and as such was liable to be assessed under the Act for the quarters companyering the period 30 9 1960 to 31 3 1962 ?
The assessment orders were also challenged on the ground that these had been passed without following the principles of natural justice inasmuch as the appellant companypany had numberopportunity to meet the materials, particularly the Inspectors Report relied upon by the Assistant Taxing officer while making the assessments.
For the reasons which we shall indicate presently we do number find any substance in either of the companytentions and both these are liable to be rejected Obviously the two companytentions urged by companynsel for the appellant company have a bearing on the proper companystruction to be placed on sec.2 5 read with the Explanation of the Orissa Taxation Act It was number disputed before us that under the charging provision companytained in sec.3 of the Act the Taxing event is the carriage of jute and other articles by motor vehicle, cart, trolley, boat etc.
submission was that under the Explanation an artificial definition of a dealer by means of a deeming clause had been provided with the object of facilitating the assessment proceedings against number resident principals which companyld number be achieved if the agent was also a numberresident in the State of orissa, Secondly, companynsel companytended that jute companypanies Principals were number number resident dealer as required .
Owing Jute Mills at Elore in Andhra Pradesh and Chitavalsah Jute Mills Co. Ltd. Owing Jute Mills at Chitavalsah in Andhra Pradesh.
It may be stated that under cl.
Against the said assessment orders the appellant company preferred appeals under sec.12 1 of the Act to the Assistant Commissioner of Taxes but the.
each one having a separate Registration Certificate.
by the Explanation since each one had a place of business of its own at Kendupatna District Cuttack.
Though the matter has been remanded by the High Court for fresh assessment, the principal companytention or the appellant company which goes to the root of the matter having been negatived by the High Court the appellant companypany has preferred this appeal to this Court challenging the High Courts view thereon.
24 of 66.
In the meanwhile, seven ex parte assessment orders were passed against the appellant company by the Assistant Tax officer for quarters companyering the period from 30 9 1960 to 31 3 1962 on the business of the said two companypanies on the basis that appellant company was a dealer as agent of both the companypanies within the meaning of sec.2 5 read with the Explanation thereto and had carried on the business of stocking or storing jute and carrying the same by motor boats at Kendupatna in District Cuttack, State of Orissa and the appellant company received a numberice of demand along with the said assessment orders claiming a total amount of Rs.
