LexTHANSINGH NATHMAL AND ORS. versus A.MAZID, SUPERINTENDENT OF TAXES
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1964 M. N. Cl11bwala v. Fida Hussain Salieb Mudholkar I. 1964 Ft!bruary, 4 654 SUPREME COURT REPORTS could not be effectively carried out by the landlord by part- ing with possession in favour of the stail-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-hoiders adopted an unreasonable attitude. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also >too<l in danger of having their licences revoked. Could, in such circum- stances, the landlords have ever intended to part with pos- session in· favour of the stall-holders and thus place them- selves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word 'rent' was used loosely for 'fee'. UjJon this view we must allow the appeal, set aside the decree of the High Court and dismiss the suit of the respon- dents in so far as it relates to reliefs (ii) (e), (f) and (g) granted by the High Court against the appellants are con- cerned. So far as the remaining reliefs granted by the High Court are concerned, its decree will stand. In the result we allow the a?peal to the extent indicated above but in the particular circumstances of the case we order costs throughout will be borne by the parties as incurred. Appeal partly allowed. THANSINGH NA THMAL AND ORS. v. A. MAZID, SUPERINTENDENT OF TAXES (P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. C. DAS GUPTA, J.C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.) Sale& Tax-Assessments made by Superintendent of Taxes-Appeab reiected by As,fistant Commissioner of Taxes and Revisions re;ected by Commissioner of Taxes, Assam-No reference to High Court 6 S.C.R. SUPREME COURT REPORTS 655 demanded although provided for in the Assam Sales Tax Act, 1947- 1964 Writ Pelitions filed in High Court under Art. 226-EUect of- Than Sinth Scheme of the Act-Tax on sales whether ultra vires-When can v. new points other than those on which certificate was granted by Supdt. of Taus the High Court, be allowed to be raised in Supreme Court- Extent of jurisdiction of High Court under Art. 226-Constitution of India, Art. 226--Assam Sales Tax Act, 1947 (Act 17 of 1947). Explanation to s. 2(12). The <ti)pellants who are merchants carrying on business as dealers in jute in Calcutta, submitted returns of turnover for purposes of sales- tax due under the Assam Sales Tax Act, 1947, but as they did not comply with the requisition of the Superintendent of Taxes to produce their books, the latter made a ''best judgment assessment" under s. 17 ( 4) of the Act. · Their appeals to the Assistant Commissioner of Taxes and revision petitions to the Commissioner of Taxes, Assam were dismissed. The appellants then moved the High Court of Assam by petitions under Art. 226 and contended that Explanation to s. 2 ( 12) of the Act was ultra vires the Assam Legislature and that the tax could not be levied on sales irrespective of the place where the contracts were made. They also contended that the finding of the Commissioner that the goods were actually in the State of Assam at the time when the contract was made was based on mere speculation. The writ petitions were dismissed by the High Court and the appellants appealed to the Supreme Court with certificate under Art. 13 2 ( 1 ) of the Constitution. Before the Supreme Court the appellants applied for leave under Art. 132(3) of the Constitution to challenge the correctness of the decision of the High Court that the goods were actually within the State of Assam when the contracts were made. Held: (i) Leave under Art. 132(3) be refused and the appeal must be restricted to the question of Jaw as to the interpretation of the Constitution, certified by the High Court. If these questions were desired to be raised the appellants ought to have moved the Commissioner to refer the case to the High Court under s. 32 of the Act. They could have moved the High Court if the Commissioner refused to refer the case to the High Court. The Act provided machinery for obtaining relief and the same had to be re.sorted to and could not be allowed to be by-passed. Ordinarily, the High Court does not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy, which without being unduly one
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