Gopalakrishnan Nair, J.:— This is a Letters Patent appeal from the judgment* a Ali, J. who quashed the order passed by the appellants assessing the respondent to sales tax for the period from October 1955 to May 1959 and also restrained the appellants from collecting tax in respect of that period from the respondent. The respondent has preferred cross-objection in respect of its liability to sales tax for the period January 1955 to 6th September, 1955.

2. The facts leading up to the present appeal are briefly as follows. The Director of Supplies at Delhi entered into a contract with the General Manager Caitsx (India) Ltd. Bombay, respondent, for sale of petrol, HSD and power Kero to the State Mecharized Farm at Nandpur within the State of Jammu and Kashmir. In pursuance of this contract the respondent company directed its depot at Pathankot situate in the Punjab to supply petrol to the Nandpur farm. The procedure adopted was that the Officer in charge of the Nandpur farm placed indents with the Pathankot depot for supply of specified quantities of petrol to the Farm and the Pathankot depot transported the petrol in its trucks to the farm and delivered it there. The price of the petrol so supplied was paid to the respondent company at Delhi by the Director of Supplies. The appellants considered that the sales of petrol to the Nandpur farm were liable to be ??? under the J. and K. Motor Spirit (Taxation of Sales) Act, ZOOS (1948 A.D), and therefore took proceedings to that end. On 9-12-SO a notice of demand was served on the respondent for a sum of Rs. 39319.75 which was assesses as tax due for the period January 1955 to May 1959. The respondent made representations to the Taxing authorities Page: 92that the tax could not be imposed as the sales took place in the course of inter-State trade and commerce; but they proved of no avail. The appellants informed the respondent that coercive proceedings will be launched against it, if the tax assessed was not paid. Thereupon the respondent moved this Court by way of writ for quashing the assessment order of the appellants and for restraining them from levying the tax. Ali, J. held that the respondent was liable to pay tax in respect of sales which took place during the period January 1955 to Sept. 1955, and, therefore, declined to grant any relief to the respondent in respect of it Regarding the rest of the period of assessment he held that the appellants were not entitled to levy tax and therefore issued the writ asked for against them. The appellants have therefore come of in appeal challenging the validity of the writ issued against them and the respondent has taken cross-objection questioning the correctness of the view that it is liable to tax for the period January 1955 to Sept. 1955.

3. This the respondent did by invoking the provisions of R. 22 of O. 41 of the CPC. But objection was taken by the appellants that O. 41 R. 22 had no application to a Letters Patent appeal, more especially so when it related to writ jurisdiction. The respondent in support of the maintainability of his cross-objection relied upon the decisions in Mst. Sabitri Thakurain v. Savi, ILR 48 Cal 481 : (AIR 1921 PC 80); Mst. Abhilakhi v. Sada Nand, ILR 53 All 535 : (AIR 1931 All 244) (FB) and Venkatesham Chetty v. Moti Chand Gulab Chand, ILR 49 Mad. 290 : (AIR 1926 Mad 316) (FB). But as the appellants contended that these decisions do not relate to writ jurisdiction of the High Court, the respondent prayed that his cross-objection may be treated as a regular appeal and the delay in preferring it condoned. The learned counsel for the respondent made a formal application to this effect stating that he did not prefer a regular appeal earlier because on the strength of the aforesaid decision he believed that he could validly avail of the provisions of O. 41 R. 22. But as the applicability of those provisions was challenged by the appellants, he did not want to take any risk in the matter and therefore prayed that the delay in preferring the appeal may be condoned by is. After having heard both sides we are satisfied that the request of the respondent should be acceded to. The delay involved is not very considerable, and the reasons for not filing a regular appeal earlier cannot be said to be unsubstantial. We, therefore, condone the delay and treat the cross-objection as a regular appeal filed by the respondent for which the requisite court-fee has already been paid.

4. We shall first deal with the appeal of the State and the State Taxation Officer whom we shall refer to as the appellants. The major contention advanced on their behalf is that the sales by the respondent to Nandpur farm were purely local or domestic sales which took place exclusively within the State of Jammu and Kashmir. This contention is rested on two grounds first, that the goods sold were as a direct result of the sale delivered into the Jammu and Kashmir State for consumption there, and second that the properly in the goods passed in the Sammu and Kashmir State. The attempt is to show that the sales did not take place in the course of inter-State trade or commerce. This attempt is obviously intended to escape the ban Imposed by Cl. (2) of Article 286 of the Constitution of India which before its amendment. In 1958 ran as follows:

“Except in so far as Parliament may by law otherwise provide, no law of a State shall Impose, or authorize the impostition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce.”

5. We shall first deal with the first limb of the argument that as the quantities of petrol sold from time to time were delivered into the State of Jammu and Kashmir as a direct result of sales for the purpose of consumption within the delivery State, the sales were really intra-State sales and were therefore free from the fetter imposed by Cl. (2) of Article 286. This contention appears to be based on the majority view in State of Bombay v. United Motors (India) Ltd., AIR 1953 SC 252. But that view has been expressly dissented from and over-ruled by the majority of a larger Bench of the Supreme Court in Bengal Immunity Co. v. State of Bihar, (S) AIR 1955 SC 661. It was unambiguously pointed out there that the ban imposed by cl. (2) of Article 286 is an altogether independent ban which is in no way whittled down, qualified or excepted by the Explanation to Article 286(1)(a) and that clauses (1)(a) and (2) of Article 286 deal with two different topics without the one in any manner affecting or encroaching on the other. The Explanation to cl. (1)(a) of Article 286 cannot therefore be projected into the interpretion or affect the scope and effect of cl. (2) of that Article. The attempt of the learned Advocate General based upon the Explanation to Article 286(1)(a) to steer clear of the ban under cl. (2) of that Article is therefore bound to fail. It follows that until the ban imposed by Article 286(2) is lifted, no State can impose a tax on inter-State sales or purchases. The Question then is whether the sales in the present case are inter-State sales, that is I to say sales in the course of inter-State trade or commerce?

6. A sale is a composite transaction comprised of several elements such as agreement to sell, payment of or promise to pay a cash consideration, passing of the property in the goods, delivery of the goods and so forth. Each one of these elements constituted a sufficient territorial nexus to enable the State in which it took place to tax the sale. The doctrine of territorial nexus so understood and applied led to multiple taxation of the same transaction of sale by several States. This impeded the free flow of inter-State trade and commerce, increased the burden on consumers at large and led to impair the economic prosperity of the country.

7. The framers of the Constitution therefore, devised Article 286 with a view to preventing the vice of multiple taxation and thereby eliminating the hardships caused by ft. By cl. (1)(a) of Article 286 as explained by the Explanation thereto every state was prohibited from taxing sales which took place outside it. The Explanation sought to clarify what is an outside sale by pointing out what shall be deemed to be an inside sale. The Explanation enacted a fiction for locating the situs of an inter-State sale, by laying down that a sale takes place outside every State other than the delivery-cum-consumption State. But the important thing is that a sale which falls within the scoop of the explanation is not an inside sale simpliciter in the context of clause (2) of Article 286. It is an over-simplification to say that as the quantities of petrol in the instant case were delivered within the Jammu and Kashmir State as a direct result of the sales for the purpose of consumption in that State, the appellants ipso facto became entitled to levy tax on the sales. It is also erroneous to say so because it completely ignores clause (2) of Article 286 and also the fact that Explanation sales are essentially interstate sales.

8. fits learned Advocate General for the appellants then laid great stress on the circumstance that the property in the goods passed in the Jammu and Kashmir State and urged on the strength of it that State is entitled to Impose tax an the sals irrespective of clause (2) of Article 286. The passing of property in the goods is no doubt one of the necessary ingredients of a transaction of sale, but the mere passing of property in a particular State does not give that State the freedom to levy a tax on that sale which takes place in the course of inter-State trade or commerce. The Explanation to Article 286(1)(a) fees fixed tbs situs of an inter-State sale disregarding altogether the place where the property in the goods may pass. And even an Explanation sale is not Immune from the fetter of clause (2) of Article 286. What has perhaps to be reiterated is the somewhat obvious ??? that the mere circumstance that property in the goods passes in a particular State does not rob a sale of its Inter-State character. As we already indicated, if a sale Makes place in the course of inter-State trade or commerce, no tax can be imposed on it unless and until the ban under cl. (2) of Article 286 is lifted. Where all the ingredients of a transaction of sale, the passing of property in the goods being perhaps the most important of them, takes place Inside one State, that would be a clear case of a purely local or domestic sale. But where the different ingredients take place in different States, that will be the first indication of an inter-State transaction. But without more it will not become a sale or purchase in the course of interstate trade or commerce. A transport of goods from one State to another under a contract of sale or purchase is an essential condition for predicating that a sale or purchase has taken place in the course of inter-State trade, in (S) AIR 1955 SC 661 (Supra) it was pointed out:

“A sale could be said to be in the course of Inter-State trade only if two conditions concur: (1) a sale of goods, and (2) a transport of those goods from one State fig another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of Inter-State trade”.

9. This view has been reiterated in several subsequent decisions of the Supreme Court, see for instance Narasimham and Son v. State of Orissa, AIR 1961 SC 1344.

10. In the present case, the goods were transported from Pathankot in the State of Punjab to Nandpur in the State of Jammu and Kashmir under a contract of sale. The sale was completed by delivery and passing of property from the seller to the buyer. Therefore both the conditions postulated in the Bengal Immunity Co. case (S) AIR 1955 SC 661 (Supra) have been satisfied in the case on land. We, therefore, find no difficulty in holding that the 1 sales in question took place in the course of inter-State trade.

11. The learned Advocate General has, however, contended that as the property in the goods passed in the State of Jammu and Kashmir by delivery of goods in that State, the sale was completed there and therefore only Shat State can tax the sale. This argument seems to overlook the aspect that while completion of the sale is a crucial taxable event, the completion of it in a particular State does not make it a local sale inside that State, the take will Irrespective of where it was completed be one in the course of Inter-State trade when there was movement of goods from one State to another in pursuance sf the contract of sale.

12. The learned Advocate General next contended lei order to constitute a sale in the course of inter-state trade the movement of goods must take place after the completion of sale by passing of property in the State from which the goods are moved to another State. This argument considerably narrows down the concept of sale in the course of inter-State trade. If this argument is accepted, it will eliminate from the category of sales in the course of inter-State trade even those sales where the property in the goods passes, while the goods are actually in transit from one State to another.

13. Where the movement of goods from one State to another is an integral part of the transaction of sale and is necessary for effectuating the sale itself and the transport of goods from one State to another in pursuance of the contract of sale and the completion of sale in the sense of the passing of property in the goods from the seller to the buyer form parts of a single transaction of sale, it is immaterial where the property in the goods actually passed or where the sale was actually completed. The entire activities beginning from the contract of sale and ending with the delivery of goods end the passing of property in them will constitute an integrated whole called the transaction of sale. The property in the goods may pass in the State across whose borders the goods are transported to another State or it may past in the delivery State; but whichever be the State in which property passes in a transaction of this kind the nature of the sale as one in the course of inter-State trade will remain unaffected.

14. We have therefore scarcely any hesitation in holding that the sales in question were sales in the course of inter-State trade. These sales came under the ban of cl. (2) of Article 286 as it stood prior to its amendment by the Constitution (Sixth Amendment) Act, 1956, and so long as Parliament by law did not lift that ban, the appellants could not levy tax on those sales.

15. The Sales Validation Ordinance No. III of 1956 which was promulgated on 30th January, 1956 and which was later replaced by the Sales Tax Validation Act, 1956, which came into force on 21-3-56, have been relied on by the learned Advocate General for arguing that the ban under Cl. (2) of Article 286 was lifted in respect of sales which took place upto 6th Sept 1955. The learned single Judge accepted this contention and this is the subject of appeal by the respondent. We have therefore to deal with this aspect of the matter and it may conveniently be done now.

16. In order to understand the true nature and scope of the Sales Tax Validation Act it is necessary to ascertain the evils which were intended to be cured by it. The Explanation to Article 286(1)(a) was by no means easy to interpret. Several States understood the Explanation as entitling them to tax sales falling within it as intra-State sales. Even the Adaptation Order made under Article 372(2) for bringing the provisions of the sales fax laws of several States into accord with the provisions of the Constitution seems to have assumed that the Explanation to Article 286(1)(a) enabled the States to tax the Explanation sales as inside sales. This view of the matter was upheld by the Supreme Court in the United Motors case, AIR 1953 SC 252 (Supra). But on 6th September, 1955 the Supreme Court overruled this view in the Bengal Immunity Co. case (S) AIR 1955 SC 661 (Supra).

17. This decision threatened to upset the economic and financial equilibrium of several States which had been collecting sales tax on the basis of the view adopted in the United Motors Case, AIR 1953 SC 252 (Supra). Large amounts of tax had boon collected by several States on Page: 94this basis which the later decision declared to be erroneous. There was the propsect of assessees who had paid large sums of money as taxes claiming refund. These dealers had already passed on the sales tax burden 10 their consumers, and refund of the tax payments to them would have only given them an unjust gam. These were the evils which were sought to be redressed by the Sales Tax Validation Act. That Act did nothing more than lift the ban imposed by Cl. (2) of Article 286 in respect of sales and purchases in the course of inter-State trade or commerce during the period between the first day of April 1951 and the 6th day of Sept. 1955. By doing so it enabled the view adopted by the Supreme Court in the United Motors case, AIR 1953 SC 252 to hold the field in respect of sales and purchases in the course of inter-State trade which took place upto 6th Sept. 1955, the date of the decision in the Bengal Immunity Co. case (S) AIR 1955 SC 661 (Supra).

18. The Act itself did not empower any State to levy any tax on sales or purchases in the course of inter-State trade; it merely liberated the sales tax law of the several States from the fetter imposed by Cl. (2) of Article 285 and left the local Act to operate on its own terms. If there was no law in a State empowering the levy of tax on sales or purchases in the course of inter-State trade or commerce, that State could not have derived any advantage from the Sales Tax Validation Act. Equally so, the Explanation to Article 286(1)(a) did not confer any taxing power on any State. On the contrary it was intended to place limitation on the State taxing power by emphasizing that the States are prohibited from taxing outside sales — the meaning of which was sought to be clarified by It. Therefore the mere lifting of the ban under Cl. (2) of Article 286 did not enable the State to Impose tax on sales in the course of Inter-State trade. Such levies could be made only when the taxing statute of the State expressly provided for them.

19. A fiscal statute has to be construed strictly in favour of the subject. Its charging provision cannot be enlarged by importing plausible implications in construing It. Unless, therefore, the terms of the taxing statute clearly purport to levy taxes on sales or purchases in the course of inter-state trade, no taxing authority can levy such tax either on the strength of the Sales Tax Validation Act, 1956, or of the Explanation to Article 286(1)(a). Every State which sought to levy tax on such sales had suitably amended its taxing Act for the purpose. Even after such amendments, the levy was challenged in some cases on the ground, inter alia, that the new provision in the Statute did not comprehend the power to tax inter-State sales and purchases. (See for Instance, Sundararamier and Co. v. State of Andhra Pradesh, AIR 1958 SC 468).

20. We have, therefore, to see whether the J and K Motor Spirit (Taxation of Sales) Act contains a provision for taxing sales and purchases in the course of Inter-State trade or commerce. If there is no such provision, the Sales Tax Validation Act, 1956, cannot help the appellants in the instant case and they cannot validly seek to tax sales and purchases in the course of interstate trade and commerce. Indeed, the object of the Sales Tax Validation Act was to enable the States to tax the Explanation sales unfettered by the ban under Cl. (2) of Article 286.

21. There is nothing in the Jammu and Kashmir Motor Spirit (Taxation of Sales) Act from which one can reasonably spell out an intention to tax Explanation sales. On the other hand the fair inference on a true construction of the provisions of the Act seems to be that imposition of tax on sales in the course of inter-State ??? not been in its contemplation. Even after the ??? of Article 286 to the State on 14th May, 1954 no amendment was made to the State Motor Spirit ??? of Sales Act, so as to bring it in accord with Article 1881 or to enable imposition of tax on Explanation sales, that is to say sales in the course of inter-State trade, It Act in this regard stands in the same form as it was enacted in the year 1948. According to its preamble the Act was intended to provide for a levy of tax on the retail sale of motor spirit. The Act obviously could not extend beyond the frontiers of the State of ??? Kashmir. Therefore the tax sought to be levied under it could reasonably be only on the retail sales within the State. The Act has not sought to impose tax or sales on the basis of the doctrine of sufficient ??? nexus.

22. “Retail sale” is defined in S. 2(g) of the Act as meaning a sale by a retail dealer of any metor sprit to a consumer or to any other person for any ppurpose other than resale. ‘Sale’ and ‘sell’ are defined to include exchange, barter and also the consumption of meter sprit by the retail dealer himself (Sec. 2(h)). Retail dealer in defined in S. 2(f) as follows:

“Retail dealer” means any person who, on commission or otherwise, sells any motor spirit to a ??? or to any other person for any purpose other ??? resale or keeps any motor spirit for sale to consumers to be any other person for purposes other than resale.”

23. By Sec. 6 every retail dealer is enjoined to possess a valid license for carrying on business as retail seller. Sec. 7(4) says:

“No license under this Act except in the cess of a licensee for the retail sale of power in or deisel oil shall be granted to any person who does not field a license for the storage of dangerous petroleum under the Petroleum Act, 1977, and if such license granted under that Act is cancelled, suspended or is not renewed, tap license granted under this Act to the holder thereof shall be deemed to be cancelled, suspended or not as the case may be.”

24. Section 11(1) provides for issue of warrants by Magistrates for arrest of any person whom he has reason to believe to have committed an offence punishable under the Act or for search, whether by day or by night, of and building, vehicle, vessel, or place in which any ??? spirit is sold or kept for sale.

25. Section 11(2) enacts that all warrants Issued under Sec. 11 shall be executed in accordance with the ??? of the State Code of Criminal Procedure 1989……..

26. So also does Sec. 12 enjoin that all searches made under the provisions of the Act shall be made 1st assonance with the provisions of the State Code of Criminal Procedure 1989.

27. Section 13 says that the provisions of Section 61 of the State Code of Criminal Procedure 1989 shall apply to all arrests ??? out warrant made under the provisions of this Act.

28. Section 4 of the Act provides for recovery of tax or penalty under the Act as if it were an arrear of last revenue. The recovery contemplated by this ??? under the Land Revenue Act of the State which has no operation outside the State.

29. These provisions seem to Indicate that the retail dealer who is liable to pay tax under the Act on his retail sales of motor spirit is a person who has ??? place of business and storage of motor spirit within the state of Jammu and Kashmir ??? No retail ??? Page: 95??? to sell motor spirit unless he holds a license for storage of petroleum under the State petroleum Act, and if the license for storage of petroleum is cancelled, ??? or un-renewed the retail dealer's license also ??? similarly cancelled, suspended or not renewed. This provision in Section 7(4) of the State Motor Spirit (Taxation of Sales) Act serves to emphasize that it is only a person who stores petrol in a specified place within State that can get a retail dealer's license under the Act. The scheme of the Act seems to be that a person who in a certain premises within the State stores petrel under a valid license for that purpose and who holds license for retail sale of petrol within the State is tea person whose retail sales are intended to be taxed. In other words the several provisions of the Act go to show that it is only purely local sales of motor spirit which take place entirely within the borders of the State that are intended to be taxed under the Jammu and Spirit Motor Spirit (Taxation of Sales) Act.

30. In the instant case the petrol was Imported from Pathankot in the Punjab State to Nandpur within the State of Jammu and Kashmir in the trucks of the setter and it was decanted into the consumer's pump at ??? within the taxing State. The State Petroleum Act tests the importation of petrol, its transportation from one place to another within the State and its storage in the State as distinct and different matters and makes ??? provision for each of them. Section 7(4) of ??? State Taxation Act speaks of the storage of motor spirit under a license obtained under the Petroleum Act.

31. The seller in the present case did not store ??? in any place within the State. He did not sell any petrol from his storage or his place of business within the State. He did not admittedly hold any license for storage of petrol within the State. Nor did he hold any license of a retail dealer under the J. and K. Motor Spirit Taxation of Sales Act. In the absence of anything in the Act empowering the levy of tax on sales of the kind in question in the instant case, we do not think that the appellants were justified in seeking to tax the sales in question which undoubtedly took place in the course of Inter-State trade. As the State taxing Statute itself does not contain a provision to tax sales of the kind ante discussion, the Sales Tax Validation Act or the Explanation to Article 285(1)(a) cannot step into the breach to help the appellants. We, therefore, hold that the appellants ??? no right to tax the sales in question from January 1955 to 6th September, 1955 by invoking the Sales Tax Validation Act, 1953. This means that the appeal filed by the respondent has to succeed and the judgment of the learned Single Judge has to be modified to this extent.

32. We have now to see whether the appellants are entitled to levy tax in respect of any period after 6th September, 1955. The Constitution (Sixth Amendment) pet which drastically amended Article 285 came into force fin the rest of India on 11-9-56, but the amendment was brought into force in the State only on 16th January, 1958 by the Constitution (Application to Jammu and Kashmir) Amendment Order, 1958. Till then cl. (2) of Article 286 operated ??? this State and banned imposition of taxes on sales and purchases in the course of inter-State trade or commerce. As we have already held that the sales in the present case squarely fell within cl. (2) of Article 286, the appellants were not entitled to ??? during the period ending with 15th January, 1958.

33. The oilier relevant period we have to consider is from 16th January, 1958 to 22nd March, 1908. During this period Article 283 as amended by the Constitution (aixtn Amendment) Act, ??? was in operation in the state. The amended Article 286 was devoid of the Explanation. Original Cl. (2) of that Article was also replaced by another provision which did not impose any ban as the original Cl. (2) did. The position during this period was that the only ban so far as is relevant to the case in 1 hand, was the one which prohibited the State to levy lax I on the sale or purchase of goods, where such sale or purchase takes place outside the State. We have, therefore, to ascertain whether the sales in question took place outside the State of Jammu and Kashmir or not. This involves the determination of the situs of a sale. This is a very vexed question. Neither the Sale of Goods Act nor the common law relating to the sale of goods embodies any definite principles of universal application for determining the situs of a sale.

34. A sale consists of a number of essential ingredients. The presence of any one of these ingredients in a particular State was previously considered to afford that state a sufficient territorial nexus to tax a sale by appropriate legislation. That led, as we already pointed out, to multiple taxation of the same transaction of sale by several States. Article 286(1)(a) and the Explanation thereto were enacted for the purpose of combating this mischief. But as the Explanation is no longer there during the period under consideration, we do not have the advantage of the fictional situs enacted by the Explanation. The removal of the Explanation seems to open the door to the uninhabited operation of the doctrine of territorial nexus. But the State Taxation Act in question has not resuried to this doctrine for imposing tax on sales of motor spirit. There is nothing in the Act to indicate that if any of the essential ingredients of a sale is located in the State, the sale should be deemed for purposes of taxation to have taken place within the State. The Act has defined sale and sell in S. 2(h) as follows:

“Sale and sell include exchange, barter and also consumption of motor spirit by the retail dealer himself.”

35. It does not appear to us to be possible to understand this definition, as based on the theory of territorial nexus or as authorizing imposition of tax on a transaction of sale, some of the essential ingredients of which lay quite outside the taxing State.

36. The learned Advocate General for the appellants has strenuously contended that as the property in the goods has passed within the State by the measurement and delivery of petrol at Nandpur Farm situate inside the State, the transaction of sale must be held to have taken place inside the State. But the passing of property in the goods and the delivery of the goods do not constitute all the essential ingredients of a sale. The other necessary ingredients have admittedly taken place outside the State. Therefore unless the State ??? Statute has proceeded to tax sales on the basis of the theory of territorial nexus, we do not think we can hold that the sales are taxable as having taken place inside the State.

37. Reference to the Sale of Goods Act does not seem to be of assistance to the appellants. In order to constitute a sale under the Sale of Goods Act it is necessary that there should be an agreement between the parties for the purpose of transferring title to roods and that it must be supported by money consideration as a result of that transaction property must actually pass in the goods. Unless all these elements are satisfied, Page: 96there cannot be a sale under the Sale of Goods Act if all these elements take place inside one State it will be a clear case of an inside sale. But if one or more of these essential elements take place outside the State, it cannot in our opinion be predicated that the sale has taken place inside the State so as to be amenable to taxation by the State, except on the notion of territorial nexus enacted into an appropriate statutory provision in the relevant taxing Act. The Act we are dealing with in the instant case contains no such provision.

38. We are, therefore, unable to hold that during the period 16th January, 1958 to 22nd March, 1958 the sales must be taken to be inside sales which can legitimately be taxed under the Jammu and Kashmir Motor Spirit (Taxation of Sales) Act. We have discussed earlier the relevant provisions and the scheme of this Act when considering the period from January 1955 to 6th Sept. 1955. We need therefore only say here that the sales during the period 15th January, 1958 to 22nd March, 1958 also being inter-State sales, fall outside the scope and intendment of the Act.

39. The Central Sales Tax Act No. 74 of 56 Was brought into force in this State on 23-3-1958. The learned Advocate General frankly conceded that on account of the application of this Act the appellants ceased to have authority to tax, under the provisions of the Jammu and Kashmir Motor Spirit (Taxation of Sales) Act, inter-State sales on and from 23-3-58. We have hardly any doubt that the sales in the present case are inter-State sales. Therefore, as conceded by the teamed Advocate General, the order of assessment made by the appellants in respect of the sales from 23-3-58 onwards was in excess of their authority and devoid of authority of law.

40. What we have stated above will show that the appellants were not entitled to levy tax on sales which took place during the entire assessment period, namely, 1955 to May 1959. But even if we assume that the appellants were entitled to tax sales which took place during part of this period the result cannot be helpful to the appellants because the assessment was one composite whole relating to the entire period. The principle pointed out in Ram Narain Sons Ltd. v. Asstt. Sales Tax Commr., (S) AIR 1955 SC 765 is apposite here. Bhagwati J. speaking for the Constitution Bench said at page 770;

“There is authority for the proposition that when by assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful Inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid in toto. The Privy Council have observed in — Bennett and White (Calgary) Ltd. v. Municipal District of Sugar, City No. 5, 1951 AC 786 at p. 816:

“When an assessment is not for an entire sum, but for separate sums, dissected and earmarked each of them to a separate assessable item, a Court can sever the items and cut out one or more along with the sum attributed to it, while affirming the residue. But where the assessment consists of a single undivided sum in respect of the totality of property treated as assessable and when one component (not dismissible as “de minimis”) is on any view not assessable and wrongly included, it would seem clear that such a procedure is barred, and the assessmerit is bad wholly.

41. That matter is covered by authority, in Montreal Light, Heat and Power Consolidated v. City of Westmount, 1926 SCR (Can.) 515, the Court (see especially per Anglic; C.J) in these conditions held that an asssssment ??? was bad in part was infected throughout, and treated it as invalid. Here their Lordships are of opinion by parity of reasoning that the assessment was invalid in toto.”

42. Before concluding we think it proper to rates' briefly to another contention raised on behalf of the appellants regarding the maintainability of the writ petition itself. This point was urged before the learned Single Judge and was repelled by him. Although at the hearing before us this argument was not put in the forefront, it was nonetheless advanced by the learned Advocate General towards the close of his arguments. He urged that the proper remedy of the respondent assessee was to move the taxation authorities in appeal or revision as provided in the Motor Spirit (Taxation of Sales) Act sod not to come to the High Court in writ before doing so. He further urged that as there is no question of violation of any fundamental right, a remedy by way of writ was not open to the respondent. We do not think these contentions ought to prevail. For successfully moving the High Court by means of a writ petition it is not necessary for an aggrieved petitioner to establish violation of his fundamental right under Part III of the Constitution of India. A writ can properly be entertained on other grounds also. The present is a case where the appellatsts have taken steps to levy and collect sales tax without jurisdiction and in contravention of Article 286. There can only be two possible views: either the taxing statute is violative of Article 286 and therefore ultra vires or the order of assentment and demand is ultra vires the provisions of the taxing Act. In either case the taxing authorities would have acted without Jurisdiction, and their order would be devoid of any authority cl law, and would clearly be invalid. And the error of law Hill be apparent on the face of the proceedings. From more than one point of view therefore, the writ petition preferred by the respondent appears to us to be competent. This result emerges even without having to go into the question whether the case involves an infringement of the fundamental right of the assessee.

43. It follows from the foregoing that the appeal preferred by the State and the taxing authorities of hid State fails and is dismissed and the appeal preferred by Caltex (India) Ltd. succeeds and is allowed Caltex (India) Ltd. will get a sum of Rs. 250/- as costs in file appeal preferred by the State. There will be no order as to costs in the appeal against the State which ms entertained on condoning delay.

44. Wazir, C.J:— I agree.

HF/V.S.B

45. Appeal Dismissed.