B KANNIAH PRASAD Vs. DEPUTY COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THIS appeal is instituted by the assesses under the Madras Sales tax Act, from the judgment 'of Ramachandra Iyer J. (as he then was) in W. P. No. 737 of 1959, in which the learned Judge declined to exercise jurisdiction under Article 226 and dismissed the petition for the issue of a writ of prohibition. The broad facts are really not in dispute before us, and the crux of the matter is whether the learned judge was justified in dismissing the writ petition on the grounds of unjustified delay and laches on the part of the petitioner.

(2.) THE petitioner (appellant) is a merchant conducting trade in bamboos, as well as certain types of works contracts. On 9-3-1954 he was assessed upon a turnover of Rs. 2,89,023-13-3. Of this total turn-over, a part related to certain works contracts and amounted to Rs. 1,12,840-6-0. The rest related to turnover upon transactions of the bamboo trade, in. the usual course, and that is not. in dispute before us. Out of the total sum of Rs. 4560-0-9 payable as tax in respect of the assessment, a sum of Rs. 2277 is, again, not in dispute, being the assessment upon the admittedly taxable part of the turnover. The balance of Rs. 2238-6-0 relates to the tax upon works contracts undertaken by the petitioner (appellant)and, upon the principle of the decision of the Supreme Court in State of Madras v. Gannon Dunkerley and Co. Madras Ltd. this part of the law should be clearly unsustainable in law.

(3.) AS we indicated earlier, the real point is whether the petitioner approached the court with due diligence, or whether he sought redress only after such unjustified delay and such laches on his part, as would entitle the court to decline to exercise the discretion vested in this court under Article 226 in his favour, by the issue of a writ of prohibition or other appropriate writ. The learned Judge (Ramachandra Iyer j.) has pointed out that the assessee (appellant) was obviously content with the order of assessment, at any rate during the early stages of this matter as he did not avail himself of the opportunity of filing a statutory appeal Under Section 12-A of the Madras General Sales tax Act. This court delivered the judgment in Gannon dunkerley and Co. , Madras Ltd. v. State of Madras, 1955-1 Mad LJ 87 : (AIR 1954 mac! 1130) on 5-4-1954. Admittedly, that put the assessed on notice concerning the untenable part of the turnover and assessment, and, normally, he should have sought redress under Article 226 with reasonable diligence after the delivery of this judgment. It is noteworthy that the time for the statutory appeal had expired only by about two days, when the aforesaid judgment in 1955-1 Mad L J. 87 : (AIR 1954 Mad 1130) was delivered by this court, But the appellant did not act. On the contrary, he failed to act and took no steps to obtain redress till the year 1958, when he instituted W. D. No. 737 of 1958 before the learned Judge. It is this delay of practically four years which has led the Judge to decline to exercise his jurisdiction in favour of the appellant.