BENGAL IMMUNITY CO LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this case the petitioner has obtained a rule calling upon the State of Bihar and the other respondents to show cause why a writ in the nature of prohibition or certiorari should not be issued for quashing the proceedings instituted against the petitioner for assessment of sales tax. Cause was shown against the rule by the Government pleader on behalf of the State of Bihar and the other respondents to whom notice of the rule was directed to be given.

(2.) The petitioner, the Bengal Immunity Company, Limited, is a corporate body with its registered office at 153 Dharmatala Street, Calcutta, The petitioner carries on the business of manufacturing and selling vaccines, sera and biological products. The petitioner conducts an extensive sale of the manufactured goods not only in West Bengal but in other parts of the Union of India. The goods are despatched from Calcutta fey rail, steamer or air against orders which are sent to Calcutta by various customers. The petitioner has no agent or office in the State of Bihar. It is stated in the affidavit that the petitioner is not a resident of Bihar nor does the petitioner carry on business as dealer within the territorial limits of Bihar. The petitioner alleges that on 18-12-1951 the Superintendent of Commercial Taxes sent a notice under Section 13(5), Bihar Sales Tax Act "calling upon the petitioner to apply for registration and submit a return showing turn-over for the period 26-1-1950 to 30-9-1951." The petitioner remonstrated saying that there is no liability to pay tax under the provisions of the Bihar Sales Tax Act and the petitioner cannot be lawfully required to be registered as dealer. But the Superintendent of Sales Tax rejected the contention and required the petitioner to comply with the terms of the notice previously sent. On 28-5-1952, the petitioner was informed that in case of default assessment will be made by the sales tax officer to the best of his judgment in accordance with the provisions of Section 13(5) of the Act. It is submitted on behalf of the petitioner that the State of Bihar has no jurisdiction to impose sales tax on persons residing outside Bihar, that the provisions of the Bihar Sales Tax Act are inconsistent with the Constitution of India and that the order of the Superintendent of Commercial Taxes calling upon the petitioner to file a return and to get itself registered as dealer was illegal and without jurisdiction. The petitioner, therefore, asks for a writ in the nature of certiorari or prohibition to quash the proceedings instituted by the Superintendent of Commercial Taxes for assessment of sales tax.

(3.) The first question which arises is whether in the state of facts disclosed in the petitioner's affidavit a writ under Article 226 of the Constitution may be properly issued. It was pointed out by the Government pleader that only a notice under Section 13(5) has been issued, and that no order of assessment upon the petitioner has been made by the sales tax authorities. The Government pleader stated that the facts have not been investigated by the taxing authorities & the liability of the petitioner has not been determined. It was argued on behalf of the respondents that in issuing notices under Section 13(5) the Superintendent of Commercial Taxes was acting within the ambit of his jurisdiction and the High Court cannot control his proceedings by issue of a writ. Now Section 13(5) states