A void assessment is not required to be set aside and does not attain finality at any stage. A claim for refund of taxes paid under a void assessment is not barred by limitation, and the taxpayer is entitled to relief under Article 226 of the Constitution.

( 1 ) THIS appeal is at the instance of the authorities of the commercial taxes and it is directed against the judgment of Sabyasachi Mukharji, J. , whereby his Lordship made the rule nisi, which was obtained by the respondent Suresh Chandra Bose on his application under Article 226 of the Constitution, absolute.

( 2 ) BOSE is a qualified sanitary engineer and at the relevant time he had been working as a sanitary contractor. In 1950, Bose applied before the Commercial Tax Officer for being registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941, under a mistaken impression that he was a dealer under the said Act and was liable to pay sales tax. Bose was registered as a dealer under the Act. He had submitted returns from 1951 to 1958 and paid a total sum of Rs. 18,812. 45 on account of sales tax along with the returns. The case of the respondent was that the said sum was paid by him on a mistaken notion of the law. After the decision in Dukhineswar Sarkar and Brothers v. Commercial Tax Officer [1957] 8 S. T. C. 478, and the decision of the Supreme Court in State of Madras v. Gannon Dunkerley and Co [1958] 9 S. T. C. 353 (S. C.), the law came to be well-settled that in the case of works contract there was no sale of goods and it was beyond the competence of the State Legislature to impose tax on the supply of materials used in such a contract. Accordingly, the respondent was not a dealer and Rule 2 (ii) (c) of the Bengal Sales Tax Rules, 1941, under which the respondent was assessed, was void and ultra v. ires. It was contended by the respondent that, in view of the said decisions, he became entitled to the refund of the amount of sales tax already paid by him and was entitled to have his registration certificate cancelled. The respondent submitted returns for the years 1959, 1960 and 1961 thereby declaring no sales or turnover. On 10th April, 1962, the respondent wrote a letter to the Commercial Tax Officer, Collootola Charge, stating, inter alia, that he was a sanitary contractor executing sanitary works. In the said letter, he requested the Commercial Tax Officer to cancel his registration as a dealer in view of the decisions of the Supreme Court in the Dukhineswar Sarkar's case [1957] 8 S. T. C. 478. Affirmed by the Supreme Court on appeal; see [1967] 19 S. T. C. 224 at 226 and the Gannon Dunkerley's case [1958] 9 S. T. C. 353 (S. C.), referred to above. In reply to the said letter, the Commercial Tax Officer by his letter dated 26th May, 1962, informed the respondent that the question of cancellation of his registration certificate would be considered on completion of the pending assessment. The respondent, therefore, made a further representation to the Commercial Tax Officer by his letter dated 7th June, 1962, regarding the cancellation of his registration certificate. He also stated that, in view of the fact that Rule 2 (ii) (c) of the Bengal Sales Tax Rules, 1941, had been declared ultra vires by the Supreme Court, the Commercial Tax Officer was acting in excess of or without jurisdiction in proceeding to assess the respondent under the Act. The Commercial Tax Officer, however, did not take any action in the matter, but issued a notice in form VIIA under Rule 55a of the Bengal Sales Tax Rules calling upon the respondent to show cause why penalty should not be imposed upon him for non-payment of arrears of tax for the years 1955, 1956 and 1957 ending on the 31st March of each year. On 15th June, 1962, the respondent submitted an application before the Commercial Tax Officer stating that the assessments were made under Rule 2 (ii) (c) of the Bengal Sales Tax Rules, 1941, which was ultra vires and, as such, the assessments were without jurisdiction. He requested the Commercial Tax Officer to withdraw the said notices. The Commercial Tax Officer, however, did not accede to the request made by the respondent. The respondent moved an application under Article 226 of the Constitution and