S D KULKARNI Vs. TRIBHOVANDAS BHIMJI ZAVERI

JUDGEMENT

(1.) BY the petition which came up for hearing before Coyajee J. the petitioners challenged the validity of a notice issued by the Sales Tax Officer on the 28-2-1955 under Section 11a, Bombay Sales Tax Act of 1945 calling upon the petitioners to make a return in connection with escaped assessment for the period 1-4-1949 to 31-10-1952. Act 3 of 1933 which is the present Act came into force on 25-3-1953 and during the relevant period with which we are concerned the Act in force was Act 5 of 1946, and the question which the learned Judge had to consider and decide was whether the notice of re-assessment with regard to escaped assessment should have been served under the old Act or under the new Act.

(2.) THE Act of 1953 by Section 48 (1) deals with the repeal of the old Act, and Sub-section (2) of that section provides:

(3.) THE notice under the Act of 1946 is to be given under Section 11a and it deals with escaped assessment. The notice under the new Act is to be given under Section 15 and substantially it is in the same terms and it also is to be given with regard to escaped assessment. The Sales Tax Authorities have given the notice which is headed : "notice under Section 11a, Bombay Sales Tax Act, 1946". The contention of the petitioners was that by reason of Section 48 (2) (iii) the notice should have been issued under Section 15 of the new Act, and inasmuch as that notice was not issued under the new Act the Sales Tax Authorities had no jurisdiction to assess the petitioners. It may be pointed out that pursuant to this notice the assessment order was made on 17-5-1955 and the petitioners have appealed against the assessment order and when this petition was filed the appeal was actually pending. Prima facie, one should have thought that when a special machinery is set up under an Act and a special legal remedy is available to an aggrieved party, that party should avail itself of that remedy before he comes to this Court for a writ under Article 226. This is not a case where a party comes to Court and says that he has not availed himself of the legal remedy because it was not possible for him to do so for any particular reason. This is a case where the party has actually appealed, the appeal is pending, and before the decision could be given by the appellate authority the party comes to this Court claiming his rights under Article 226 of the Constitution.