Constitutional validity of the Act and Rules.

VENKATARAMA AYYAR, J.

These writs raise the question of the validity of the Madras General Sales Tax Act (IX of 1939) and of the Turnover and Assessment Rules, 1939, framed thereunder hereinafter called the Rules. The petitioners in Writ Petitioners No. 21 of 1952 are doing business as tanners in Eluru. The course of business is that they purchase raw hides and skins and tan them in their own tannery. They hold a licence as tanners under the Act. Under Rule 15, they were submitting monthly returns of hides and skins purchased by them for the purpose of tanning in From No. A-4 and an order was passed on 23rd February, 1951, on the basis of these returns determining the tax payable at Rs. 10-180-7-3. Payments amounting to 4, 790-13-0 had been made by the petitioners towards the amount of the tax and for the balance of Rs. 5, 389-10-3 remaining payable, a demand was duly made by notice under Rule 15(4). No appeal was taken against the order of assessment and it has become final. Nor was any action instituted to contest its validity. The tax not having been paid, the Commercial Tax Officer instituted proceedings under Section 15(b) of the Act for the recovery of the amount. The section so far as it is material runs as follows :-

"Any person who fails to pay within the time allowed, any tax assessed on him, or any fee due from him, under this Act shall, on conviction by a Presidency Magistrate or a Magistrate of the first class, be liable to a fine which may extend to one thousand rupees, and in the case of a conviction under clause (b), the Magistrate shall specify in the order the tax, fee or other amount, which the person convicted has failed or evaded to pay or has wrongfully collected, and the tax, fee or amount so specified shall be recoverable as if it were a fine." *

These proceedings are now pending before the Honorary Special First Class Magistrate, Eluru, as C.C. No. 88 of 1951. The petitioners have taken out this writ for quashing these proceedings on the ground that the Act and the Rules and the assessment made thereunder are void and that the prosecution is illegal.

In Writ Petition No. 41 of 1952, the facts are similar. The petitioner is a licensed tanner of hides and skins doing business at Eluru. He sent monthly returns of hides and skins purchased for tanning in From No. A-4 and on the basis of these returns, an order was passed on 23rd February, 1951, determining the tax payable by him at Rs. 4, 407-7-0. After deducting Rs. 1, 805-3-4 which had been paid by the petitioner towards the amount of the tax, there was a balance of Rs. 2, 602-3-8 remaining payable by him and a notice for this amount under Rule 15(4) was duly served on him. The order of assessment was not taken in appeal and has become final. Nor was any action filed contesting its validity. Default having been made in the payment of the tax, proceedings were taken for its recovery under Section 15(b) of the Act. These proceedings are now pending before the Honorary First Class Magistrate, Eluru, as C.C. No. 90 of 1951. The present writ has been writ has been filed for quashing those proceedings on the ground that the Act and the Rules and the assessment made thereunder are all void and that the prosecution is, therefore, illegal.

It is necessary, to begin with, to define what contentions are open to the petitioners in these proceedings. The Madras General Sales Tax Act which creates the liability to pay tax on sales also constitutes Tribunals for determining the amount payable under the Act and such determination has to be made after notice to the assessee and it is open to appeal and further to a revision. The petitioners were duly served with notice under the Act and had ample opportunity of putting forward before the Tribunals all contentions based on the provisions of the Act or the Rules. Not having done so, they cannot be permitted to put forward in these proceedings contentions which were available to them before the Tribunals. The only p