Satyanarayana Raju, J.— These appeals, by special leave, are from the judgment of a Division Bench of the Madras High Court.
2. Rayalaseema Constructions now defunct, was a firm of engineers with: its head office at Madras. For the year 1951-52, the firm was assessed under the Madras General Sales Tax Act, 1939 (hereinafter referred to as “the Act”) on a gross turnover of Rs 2,23,174-10-0 as on “works contracts”. The order of assessment was made on March 25, 1953 and it was then determined that a sum of Rs 2440-15-7 was payable by the firm. Deducting the payments made by the firm, a balance of Rs 775-15-7 remain due in respect of this assessment. For the year 1952-53, the gross turnover of the firm was computed to be Rs 2,54,666-13-9 and the assessment was made in a sum of Rs 2785-6-9. Deducting the various payments made by the firm, a sum of Rs 1725-6-9 remained due in respect of this assessment. The appellant demanded payment of these sums amounting to Rs 2501-6-4. By the time the appellant made the demand, the Madras High Court had held in Gannon Dunkerley & Co. v. State of Madras (1955) (1) MLJ 7 that works contracts did not involve any element of sale of materials and that therefore the levy of sales tax in respect of those materials, was unlawful. By its letter dated August 3, 1954, respondent wrote to the appellant that the demand for payment of the amount could not be enforced as the assessment itself was illegal and not authorised by law. For nearly two years the appellant took no steps to enforce the demand but, on November 26, 1956, the Deputy Commercial Tax Officer wrote to the respondent that he had been directed to take steps to collect this arrear under the Revenue Recovery Act. On February 2, 1957 the respondent thereupon filed Writ Petitions Nos. 91 and 142 of 1957 in the Madras High Court for the issue of a writ of mandamus or other suitable direction to the appellant requiring him to forbear from collecting the said amounts.
3. The case for the petitioner-respondent was that by reason of the decision in Gannon Dunkerley case (1955) (1) MLJ 7 the levy made upon it was unlawful, that the State had no authority to demand payment of the amounts and that therefore there should be a direction prohibiting the State from collecting the amounts. By its judgment dated February 2, 1959, the Division Bench of the High Court held that in relation to a tax where an assessing officer acted outside the boundaries of his jurisdiction, his acts would, to that extent, be null and void, that no one would have any power to call upon a citizen to make payment of a tax so imposed, and if my authority sought to collect a tax so imposed, the citizen could call in aid Article 265 and seek the assistance of the Court. As a result of the conclusions reached by them, the learned Judges issued a writ of mandamus directing the appellant to forbear from collecting the amounts.
4. In support of the appeals, it is contended by Mr Ranganadham Chetty that the question whether the transactions with respect to which the respondent was assessed to sales tax were “works contracts” or not was not the subject-matter of investigation by the High Court and therefore the matter should be remitted to that court for a proper finding on that question. From a perusal of the judgment of the High Court, it would appear that at no time was there any controversy that the transactions were not works contracts. The judgment proceeded on the basis that the decision in Gannon Dunkerley case (1955) (1) MLJ 7 directly applied to the assessments under challenge. In the statement of case filed by the appellant in this Court, there is no allegation that the assessments did not relate to “indivisible works contracts”. The entire statement of the case proceeded on the assumption that they were such contracts. In the circumstances, we must hold that there is no need to remit the case to the High Court for an investigation into the nature of the transactions.
5. Referring to Article 265 of the Constitution, it is contended that it did not permit calling in question an assessment that had already become final. In State of Madras Gannon Dunkerley & Co. (Madras) Ltd. (1959) SCR 379 this Court held, agreeing with the Madras High Court, that the provisions introduced by the Madras General Sales Tax (Amendment) Act, 1947 were ultra vires the powers of the Provincial Legislature. After considering the relevant constitutional provisions, this Court came to the definite conclusion that the State Legislature had no competence to impose a tax on indivisible building contracts. There is therefore no doubt that the relevant provisions of the Madras General Sales Tax Act insofar as they deal with indivisible building contracts are ultra vires the powers of the State Legislature and therefore void. It follows that in the instant case, the Sales Tax Authorities have acted outside the Act in making an assessment on the basis of the relevant part of the charging section which was declared to be ultra vires by this Court. In K.S Venkataraman & Co. (P) Ltd. v. State of Madras this Court, by a majority, held that by reason of the fact that the relevant part of the charging section was held to be ultra-vires, Section 18 A of the Act was not a bar for the maintainability of a suit claiming refund of the tax illegally collected.
6. Learned counsel for the appellant has however contended that the High Court was in error in issuing a writ of mandamus when the proper remedy of the respondent was to file a suit. It is no doubt true that when there is an alternative remedy, the High Court will not normally entertain an application under Article 226, but where, as in the instant case, the High Court has chosen to exercise its jurisdiction to grant relief to the respondent, this Court will not interfere with the jurisdiction exercise by the High Court.
7. It only remains for us to place on record our thanks to Mr B.R.L Iyengar for assisting the Court as amicus curiae, on behalf of the respondent.
8. The result is that the appeals fail and are accordingly dismissed. There will be no order as to costs.