1. This petition, which purports to be under Article 226 of the Constitution of India seeking a writ of prohibition against the State of Madhya Pradesh, the Sales Tax Officer, Buldana, and the Assistant Commissioner, Sales Tax, Amravati, had been filed by one Himatlal Hiralal Metha representing a firm known as “C.P Parekh and Company (India) Limited”. The company is registered under the Indian Companies Act, 1913, with, as it is alleged, the head office at Bombay.
2. The company has a branch at Khamgaon and also in other parts of this State, but in the matter of sales tax, the company is registered in Buldana district and all returns in respect of sales tax are made to the Sales Tax Officer, Buldana (non-applicant No. 2).
3. The petitioner states that he buys raw cotton and gets it ginned and pressed and keeps it in stock to be sent to the head office at Bombay or to such other places under the directions of the head office as may be necessary. When cotton was declared liable to sales tax, the petitioner paid the tax on sales of cotton up to 31st December, 1950.
4. The petitioner states that the head office of the petitioner's firm at Bombay sells cotton bales to mills and individuals under the control of the Textile Commissioner at Bombay and that on the completion of the contract of sale, the bales are sent from Khamgaon and other places in the State to their destination outside the State. The petitioner says that for the quarter ending on 31st March, 1951, the head office also contracted to sell cotton and the petitioner has not paid the tax for that quarter. During this period also the head office at Bombay entered into contracts of sale of cotton to mills and individuals and pursuant to such contracts, delivery of the bales was made either at Bombay or at other places outside the State of Madhya Pradesh.
5. The petitioner avers that these cotton bales are sent by railway under an insurance in favour of the petitioner and consigned to himself a-nd till the moment of delivery to the buyer in Bombay, the petitioner continues to have a full insurable interest. The goods are, however, delivered to the buyer by the usual method of tender of railway receipts against payment of price at the destination. The weighment of the bales, the payment of price and the delivery of the goods take place outside the State of Madhya Pradesh.
6. According to the petitioner, the transactions thus effected are not “sales” within the State, and the State cannot therefore tax such sales because the branch offices in the State do not make any contract of sale and the sale, therefore, takes place outside the territories of this State.
7. The petitioner says that though he has been trading in this fashion even prior to 31st December, 1950, he was required to pay the sales tax up to that date. Apprehending that he would have to pay the tax for the quarter ending 31st March, 1951, he filed the present petition for a writ of prohibition against the above-named non-applicants to restrain them from enforcing against him the provisions of the C.P and Berar Sales Tax Act, 1947, and in particular, the explanations to the definition of “sale” contained in Section 2(g) of the Act, together with the amended explanations introduced by the C.P and Berar Act No. XVI of 1949.
8. The petitioner admitted that he has not yet filed his return for the quarter ending 31st March, 1951, during which period transactions of the value of Rs. 32,52,940-13-3 had been entered into. He states that though the Act provides for appeals and other remedies, the Act makes it incumbent upon the assessee to pay the tax forthwith as a condition precedent to such remedies. The petitioner contends that this is an impossible condition and he cannot therefore have recourse to the ordinary procedure laid down in the C.P and Berar Sales Tax Act and has therefore to take resort to Article 226 of the Constitution for a writ of prohibition. The petitioner states that he is threatened with a demand, and as the Act is ultra vires because it seeks to legislate on sales outside the territories of this State, and also because the Amending Act No. XVI of 1949 was not assented to by the Governor-General, as required by Section 107 of the Government of India Act, 1935, he is entitled to ask for a writ of prohibition against the non-applicants restraining them from enforcing the Act and making a demand for the tax upon the transactions for the quarter ending 31st March, 1951.
9. In the prayer clause, however, the petitioner states that this Court should declare that Explanation II to Section 2(g) of the C.P and Berar Sales Tax Act, 1947, as also the amended Explanation II introduced by Act No. XVI of 1949, are ultra vires and illegal. He also seeks refund of the tax paid up to 31st December, 1950. An affidavit has been filed in support of the petition.
10. In response to the notice which was issued by this Court, returns have been filed on behalf of the third non-applicant, who states that the petition is premature because no action has so far been taken against the petitioner and no tax has been demanded from him. It is further contended that even if the tax had been demanded, the petitioner had ample remedies by way of appeals and revisions and by asking for a reference of the matter to the High Court under the Act itself. The petitioner has forestalled all this by rushing to the High Court under Article 226 of the Constitution for a writ of prohibition, which cannot be issued in such circumstances. On the question of the vires of the legislation, the return joins issue and avers that the legislation is perfectly valid.
11. In answer to the return, the petitioner filed a further affidavit stating that the consistent view of the authorities constituted under the Sales Tax Act to hear appeals and revisions, including the Revenue Tribunal, is that the Act is perfectly valid and such transactions can be taxed. The petitioner contends that it would be useless for him to employ the remedies provided by the Act because no result can follow and also because he must, in any event, pay the tax before availing himself of those remedies. He contends, therefore, that the petition is good and the writ ought to be confirmed. The petitioner, however, expressed his willingness to deposit forthwith the tax calculated under the Act if his bona fides are questioned.
12. The case was argued before us by Shri N.P Engineer on behalf of the petitioner and by the Advocate-General on behalf of the non-applicants. The learned Advocate-General raised two preliminary objections which are in substance what has been stated as the case of the third non-applicant above. According to him, the petition is pre mature because the petitioner has not filed his return or been threatened with a demand. Further, it is said to be incompetent because a writ of prohibition does not issue if there is another adequate remedy, which, it is contended, there is in the Act itself. Reliance is placed upon the Privy Council case reported in Raleigh Investment Co. Ltd. v. Governor-General in Council [1947] 15 I.T.R 332.
13. Towards the conclusion of this case it was pointed out to us by the learned Advocate-General as well as Shri N.P Engineer that the Honourable the Chief Justice had asked for a reference in another case on certain questions by the Board of Revenue and that the questions common to both these cases were likely to arise. At the request of counsel, we waited to see whether the case would be referred to the same Bench or not and when it was, we heard arguments afresh in the two cases because the other case was concerned with the unamended Explanations and the present case with the Explanations as amended. Shri Engineer was also present and at his request we heard some addi tional arguments, particularly in relation to Article 286 of the Constitution to which we need not refer in the present case, because our decision will appear from the other case.
14. While we are of opinion that the present petition cannot succeed because as was rightly conceded by the learned counsel for the petitioner a writ of prohibition cannot issue in such circumstances, we would, while dealing with the other case, give our opinion about the validity of the amended Explanations and state in this order their effect upon the present petitioner's case. On the other points urged in the petition our order in Miscellaneous Civil Case No. 258 of 1951* contains also our opinion. This would finally dispose of both the cases and make this order complete.
15. If the writ asked for cannot issue, the question is whether the applicant can claim any remedy by this petition. The case was not attempted to be argued under any other head except the writ of mandamus. Shri Engineer with commendable discernment did not contend, as is frequently done, that “an order or direction” should issue. But even taking mandamus as the writ asked for, we are of opinion that the writ cannot issue. A mandamus issues only to compel an authority to do or desist from some act. It is seldom anticipatory and is certainly never issued where the action of the authority is dependent on some action of the petitioner and the petitioner has not acted. In the present case, the petitioner has not even made his return and no demand of the tax can be made. It has been laid down in several cases that a mandamus should not be issued in such circumstances.
16. The offer of the petitioner to deposit the entire tax does not alter the position. There is a machinery provided in the Act itself (see M.C.C No. 258 of 1951 decided today), under which the petitioner after making his return can urge that he is not liable for the tax and if the taxing authority does not agree he can appeal against the decision and also move this Court ultimately. Article 226 of the Constitution is not enacted to negative all existing procedure and law and whatever may be done in an urgent case involving fundamental rights (where other remedies become ineffective due to delay or otherwise) is not appropriate in the instant case where the petitioner has the means and is willing to pay the tax and can take recourse to the ordinary modes of redress.
17. As regards the new Explanation, we have already pointed out in Miscellaneous Civil Case No. 258 of 1951 decided today, that the amendment is ultra vires and that mere production of the goods would not be enough to make the tax payable unless the goods are appropriated to a particular contract. To impose the tax at that stage would be tantamount to charging an excise duty and not a tax on the sale of goods. This opinion, however, is academic in both the cases since we are not really called upon to decide this matter in either of these two cases.
18. With these remarks the application is dismissed. Counsel's fee Rs. 200.
19. Application dismissed.