Judgment

DAS, JJ

( 1 ) THIS appeal, filed under a certificate of fitness granted by the High Court of Patna, is directed against the judgment of that High Court pronounced on 4-12-1952 whereby it dismissed the application made by the appellant company under Art. 226 of the Constitution praying for an appropriate writ or order quashing "the proceedings issued by the opposite parties for the purpose of levying and realising a tax which is not lawfully leviable on the petitioners" and for another ancillary reliefs.

( 2 ) THE relevant facts appearing from the petition filed in support of the appellant company s aforesaid application are as follows : The appellant company is an incorporated company carrying on the business of manufacturing and selling various sera, vaccines, biological products and medicines. Its registered head office is at Calcutta and its laboratory and factory are at Baranagar in rite district of 24-Perganas in West Bengal.

IT is registered as a dealer under the Bengal Finance (Sales Tax) Act and its registered number is S. L.a. Its. products have extensive sales throughout the Union of India and abroad, The goods are despatched from Calcutta by rail, steamer or air against orders accepted by the appellant company in Calcutta.

THE appellant company has neither any agent or manager in Bihar nor any office, godown or laboratory in that State. On 24-10- 1951 the Assistant Superintendent of Commercial Taxes, Bihar wrote a letter to the appellant company which concluded as follows:

"necessary action may therefore be taken to get your firm registered under the Bihar Sales Tax Act. Steps may kindly he taken to deposit Bihar Sales Tax dues in any Bihar Treasury at an early date under intimation to this Department. "

ON 18. 12. 1951 a notice was issued by the Superintendent, Commercial Taxes, Central Circle Bihar, Patna calling upon the appellant company (i) to apply for registration and (ii) to submit returns showing its turnover for the period commencing from 26-1-1950 and ending with 30-9-1951. This notice was issued under S. 13 (5) Bihar Sales Tax Act, 1947 (hereinafter called the Act) read with R. 28. It was drawn up according to Form No. 8 prescribed by the rules and was headed "notice of hearing under S. 13 (5)".

THE reason for issuing this notice, as recited therein, was that on information which had come to his possession the Superintendent was satisfied that the appellant company was liable to pay lax but had nevertheless willfully failed to apply for registration under the Act. Thereafter there was some correspondence between the appellant company and the Bihar sales Tax authorities to which it is not necessary to refer in detail. Suffice it to say that while the appellant company denied its liability on the ground inter alia , that it was not resident in Bihar, it carried on no business there, none of its sales took place in Bihar and that it did not collect any sales lax from any person of that State, the Bihar Sales Tax authorities maintained that under S. 33, which was substantially based on Art 286 of the Constitution and was inserted in the Act by the President s Adaptation Order promulgated on 4-4-1951, all sales in West Bengal or any other State under which the goods had been delivered in the State of Bihar as a direct result of the sale for the purpose of consumption in that State were liable to Bihar Sales Tax.

EVENTUALLY on 29-5-1952 the Assistant Superintendent of Sales Tax, Bihar called upon the appellant company to comply with the notice by 14-6-1952 and threatened that, in default of compliance, he would proceed to take steps for assessment to the best of his judgment.

THE appellant company by its letter dated 7-6. 1932 characterised the notice under S. 13 (5)as ultra vires and entirely illegal and called upon the Superintendent to forthwith rescind and cancel the same. On 10-6-1952 the appellant company presented before the High Court at Patna a petition under An. 226 claiming the relies hereinbe