N K DHARMARAJA IYER Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was assessed to sales tax, for the year 1953-1954, by the sales tax Officer, II Circle, Trichur, erstwhile Travancore-Cochin State by order Ext. P1, dated January 27, 1956, on a total net turnover of Rs. 89,443-11-3 on no return submitted by him, but on an examination of his books of account, repelling his contention, that turnover to the extent of Rs. 65,908-0-6 was on account of interstate sales. He submitted a return of turnover on account of interstate sales, for a period which covered also the year 1953-1954, to the second respondent, the Deputy Commercial Tax Officer, Special Circle, Madras, and although he had pleaded before him, that he had been taxed by the former Travancore-Cochin State on the same turnover, he was assessed to sales tax, by order Ext. P-2 dated November 15, 1956. Not being able to realise the tax, the second respondent requested the third respondent, the District Collector, Trichur, to initiate proceedings against the petitioner under the Revenue Recovery Act, who accordingly caused a memo Ext. P-4 dated May 20, 1958, to be issued to the petitioner, through the fourth respondent, the Deputy Tahsildar of Mukundapuram, Trichur District. This petition is to quash Exts. P-2 and P-4, and to issue an appropriate writ, direction or order to the first respondent, the State of Kerala, either to adjust the amount of the claim with the second respondent or to refund the same to the petitioner.

(2.) A preliminary objection was taken, that no writ could issue to bring up Ext. P-2 for quashing it, as the second respondent is outside the territorial limits of the jurisdiction of this court, and as the petitioner had not exhausted the remedies under the Madras General Sales Tax Act, 1939 against Ext. P-2, if it was an improper assessment, and that therefore the petitioner can have no relief against respondents one, three and four. A number of decided cases were relied on in support of these contentions, and the learned counsel for the petitioner had only one answer to them, failing which, the preliminary objection has to prevail. He maintained, that where the order passed by the authority situated outside the State which is sought to be enforced against an authority within the State, is plainly illegal, as ex facie devoid of jurisdiction, the order of the former authority need not be quashed, but may be ignored and relief may be granted against the latter, on the principle, which has found acceptance in A. Thangal Kunju Musaliar v. N. Venkatachalam Potti, AIR 1956 S.C. 246 that there can be no agency in the matter of the commission of a wrong. Granting that the principle has any application, it was admitted, that the petitioner can succeed on this contention only if it can be shown, that on the face of it, Ext. P-2 is lacking in jurisdiction. His learned counsel was only able to point out, that in Ext. P-2, there is no finding, that the delivery of the goods sold took place in the Madras State, so as to constitute interstate sales; but in my view, the material finding in

(3.) It was next contended that the first respondent must be compelled to adjust the amount of the tax collected with the second respondent, or refund the same, and S.72 of the Indian Contract Act which reads