JUDGMENT

TULZAPURKAR, J. :—This appeal by special leave raises the question whether the appellant-company could be regarded as a dealer within the meaning of S. 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 covering the period 30-9-1960 to 31-3-1962? The question which pertains to the proper interpretation of the aforesaid provisions of the Act arises in the following circumstances.

2. Nellimarla Jute Mills Co. Ltd. and Chitavalsah Jute Mills Co. Ltd. are two independent and separate companies having their registered offices at Mcleod House 3, Netaji Subhas Road, Calcutta and additional places of business in several parts of the country including one at Kendupatna. P.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 country such as. Nellimarla Jute Mills Co. Ltd. owning Jute Mills at Elore in Andhra Pradesh and Chitavalsah Jute Mills Co. Ltd. owning Jute Mills at Chitavalsah in Andhra Pradesh. The appellant-company (M/s. Mcleod and Co. Ltd. having its Registered Office at Mcleod House 3. Netaji Subhas Road, Calcutta) by virtue of agreements with the said two jute mills has appointed the Managing Agent for Chitavalsah Jute Mills Co. Ltd. and the Secretary and Treasurer for Nellimarla Jute Mills Co. Ltd. The appellant-company did not do any business nor 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 Nellimarla looked after the work of storing their jute in their godowns at Kendupatna. District Cuttack, State of Orissa. It may be stated that under Cl. (4) of the Agreement dated 7-10-1960 with Nellimarla the appellant-company was precluded from and was "not 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". In other words, the prohibition contained in Cl. (4) of the Agreement with Nellimarla merely pertained to selling or purchasing of goods or materials for the purposes of the company but left intact the appellant-companys powers to store jute of the Company in its godowns at Kendupatna in the State of Orissa.

3. 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, each one having a separate Registration Certificate. It may be stated that Nellimarla had filed Returns of their turnover for all the quarters from 30-9-1959 to 30-6-1960 and had paid the admitted tax for the said period under the Act. Similarly, Chitavalsah had filed Returns of their turnover for all quarters from 30-9-1959 to 31-3-1960 and had paid the admitted tax for the said period under the Act. It appears that thereafter some time in 1969 the said jute companies 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 counsel that ultimately the challenge to the validity of the Acts failed; however, we are not concerned with the proceedings in this appeal. In the meanwhile, seven ex parte assessment orders were passed against the appellant-company by the Assistant Tax Officer for quarters covering the period from 30-9-1960 to 31-3-1962 on the business of the said two companies on the basis that appellant-company was a dealer (a