Judgment :- This suit is against the Province of Madras (now the Madras State) instituted by Messrs. Louis Dreyfus and Company Limited for recovery of a sum of Rs. 26, 933-0-5 being the tax collected under the Madras Sales Tax Act. The plaintiffs company incorporated in England carries on business, amongst other places, in Madras and Bombay. For the year 1944-1945, they were assessed to sales tax on a total turnover of Rs. 2, 83, 76, 139-11-5 in which was included the sale of groundnuts of a total value of Rs. 30, 03, 650-12-6. The plaintiffs' case is that the turnover of the value of Rs. 30, 03, 650-12-6 represented the value of the purchases made by the plaintiffs' Bombay office and that inclusion of this turnover and the assessment made on that was illegal and ultra vires, among other grounds, on the ground that the transfer of the property in the goods took place outside the State of Madras, that as per the terms of the contract of sale the property in the goods passed only outside the State of Madras, that the assessment of the Commercial Tax Officer who purported to act under rule 14(2) of the Madras General Sales Tax Rules was without jurisdiction, that the assessment was illegal and therefore they were entitled to repayment of the tax collected. The defence is that the transactions of sale were within the State, that the property in the goods passed to the buyer, that is, the plaintiffs, within the State itself, that the goods having been booked in the railway stations within the State in the name of the plaintiffs company, both as consignor and consignee, the transfer of the property in the goods was within the State, that the proper procedure prescribed by law has been followed by the defendants in imposing this assessment and that the Commercial Tax Officer had jurisdiction to act under rule 14 of the Madras General Sales Tax Rules and that therefore the assessment was perfectly legal and valid. The following issues were framed :-1. Whether the transfer of property in the goods did not take place within the Province of Madras ? 2. Whether the Commercial Tax Officer had no jurisdiction or power to act under rule 14(2) in assessing the alleged escaped turnover ? 3. The following issues were framed :-1. Whether the transfer of property in the goods did not take place within the Province of Madras ? 2. Whether the Commercial Tax Officer had no jurisdiction or power to act under rule 14(2) in assessing the alleged escaped turnover ? 3. Whether the assessment is illegal and ultra vires for any of the reasons mentioned in the plaint ? 4. Is the plaintiff entitled to a refund of the plaint amount ? 5. To what relief is the plaintiff entitled ? The first question that arises is whether the transfer of the property in the goods did not take place within the State of Madras. The plaintiffs' business in respect of the sales which are the subject-matter of the suit is by their Bombay office. The Bombay office had sub-agencies in several places of the Madras State where the sub-agents purchased groundnuts and despatched the same to their Bombay office and to other places at their instance. In respect of these purchases by the sub-agents they were assessed to sales tax as the purchases were, without doubt, within the State. The sale transactions covered by this suit are not purchases made by the sub-agents but are of a different category. The plaintiffs were, during the period of war, granted permission to export groundnuts for shipment to the British Ministry of Food via the Port of Marmagoa. Under the Defence of India Rules "no person with effect from 1st November, 1943, could export oil-seeds by rail, road, canal or sea from any place in the Province of Madras to any place in India outside the said Province except under and in accordance with the terms and conditions of a permit issued by the Commissioner of Civil Supplies, Madras, or any other officer specifically authorised by him in this behalf" : Vide G.O.Ms. No. 2526 Development, Government of Madras, 8th October, 1943, Ex. P-28. Oil-seeds included groundnuts. There was also prohibition of taking by sea or land out of British India to any place outside India or Burma of any goods of the description specified in the Schedule to the Government of India Notification under the Sea Customs Act No. 26-W(5)/39, dated Simla, the 25th September, 1939, Ex. P-23, unless such goods which included oil-seeds are covered by export licence issued by the Chief Customs Officer or Collector of Land Customs. P-23, unless such goods which included oil-seeds are covered by export licence issued by the Chief Customs Officer or Collector of Land Customs. Permission was granted to the plaintiffs to export certain quantities of groundnuts from different places within the Madras State to Marmagoa for shipment to the United Kingdom on account of the British Ministry of Food under permits, Exs. P-29 and P-30, issued by the Commissioner of Civil Supplies, Madras.In order to fulfil the contracts for supplying the British Ministry of Food under the permits referred to, the plaintiffs entered into certain contracts for supplying groundnuts to them in order to enable them to export the same to Britain. There are 24 such contracts, the total supply under them being of the value of Rs. 30, 03, 650-12-6. These 24 contracts are of two different kinds. Of the contractees who are the sellers to the plaintiffs, Nos. 1 to 18 in the list of contracts, Ex. P-5, are residents of Bombay City and the rest Nos. 19 to 24 are residents outside Bombay City, some in Hyderabad and some in Royachuti and three, Nos. 19, 23 and 24, are residents of Madras State. Two different forms of contract were entered into, one form was with reference to the residents of Bombay City and the other form was with reference to those outside Bombay City. In respect of the purchase of groundnuts in the Bombay City, a contract in the form of Ex. P-19 was entered into by the plaintiffs. It is signed by the seller and addressed to the plaintiffs. It is as follows :- "We have this day sold to you.......tons of groundnuts........free railway station, Bombay or to be delivered at buyers' godown." There are certain terms as to bagging, delivery, refraction, payment and brokerage. As regards delivery, it is stated that the quantity abovementioned contracted for was to be delivered to the plaintiffs at Marmagoa, and as regards payment it is mentioned that the general terms and conditions of delivery contracts as settled by the Grain Merchants Association was to be applicable. The procedure that is followed in respect of the purchases is spoken to by P.W. 1, who is the Assistant Manager of the plaintiffs' company at Bombay. The procedure that is followed in respect of the purchases is spoken to by P.W. 1, who is the Assistant Manager of the plaintiffs' company at Bombay. He states that in respect of purchases from City merchants the plaintiffs give instructions to the guaranteeing broker for buying certain quantity at certain price and for specific delivery on specific payments, that the guaranteeing broker passes the order to the merchants in the city and accepts the order from the merchants and communicates to the manager who makes a note of the acceptance and at the close of the day the broker makes a statement in writing with a list and on basis of the list, after a few days, a contract in the form of Ex. P-19 is signed by the merchants and sent through the broker. As regards payment, rule 1 of the Rules and Regulations of the Bombay Grain and Oil Merchants' Association, Ex. P-31, states that against railway receipts duly endorsed in favour of the buyers or against godown delivery, 90 per cent has to be paid in case of oil-seeds except cotton seed in which case 75 per cent is to be paid. After the contracts are entered into in the form of Ex. P-19 the seller sends the railway receipts to the plaintiffs' office at Bombay as against which 90 per cent of the amount of the contract is paid, and a receipt issued by the seller in the form of Ex. P-20. The place of delivery being Marmagoa, the goods are booked by rail to Marmagoa where the goods are checked and weighed in the presence of the agents of the plaintiffs and sellers and if the plaintiffs are satisfied about the correctness of the weight, description and quality, they accept the goods and instruct the plaintiffs' Bombay office to pay the balance of 10 per cent. The plaintiffs' agent on such inspection prepares a statement in the form of Ex. P-21 and sends it with his report to the Head Office at Bombay where they pay the balance of 10 per cent. Ex. P-22 is a receipt for payment of the final bill of 10 per cent to the city merchants.The form of contract with reference to the sellers residing outside the Bombay City is called the General Port Pass Contract in the form of Ex. P-14. Ex. P-22 is a receipt for payment of the final bill of 10 per cent to the city merchants.The form of contract with reference to the sellers residing outside the Bombay City is called the General Port Pass Contract in the form of Ex. P-14. It is in the form of an agreement between the sellers and the plaintiffs the buyers. It is provided there that the sellers shall sell and the buyers shall purchase particular quantities of groundnuts of a defined quality at a particular rate F.O.R. Marmagoa harbour. The particulars as to quality are mentioned in detail and there is a clause stating the conditions under which the goods could be rejected. It is provided under clause 5 that should the whole or any portion of the goods to be delivered under the contract be in any respect not in accordance with the stipulations, the buyers shall have the option, among others, to reject the parcel and claim recovery from the sellers any loss they may sustain. Clause 6 provides that the buyers, that is the plaintiffs, will supply the necessary gunnies to the sellers on the letter's written request. Clause 7 relates to delivery and delivery is to be completed at Marmagoa harbour at the plaintiffs' siding between particular dates. The terms of payment are provided by clause 8. The buyers should advance 90 per cent of the contract value of the goods delivered by sellers as provided in Artyas agreement between the parties. The railway freight and surcharge paid by the buyer will be on the seller's account. Under clause 15 the sellers agreed to abide by the results found by buyers at their Marmagoa Agency in every respect as to quality, condition, weight, refraction etc. The Artyas agreement referred to is a general agreement entered into between the plaintiffs as "traders" and the sellers as "Artyas" in the form of Ex. P-14(a). It is stated that every seller who is outside the Bombay City and who enters into a contract for supply of groundnuts executes in the first instance an agreement known as Artyas agreement in terms of Ex. P-14(a). It is in the form of a general contract entered into with the plaintiffs for supply of the groundnuts and other commodities for the plaintiffs at Bombay and Madras. P-14(a). It is in the form of a general contract entered into with the plaintiffs for supply of the groundnuts and other commodities for the plaintiffs at Bombay and Madras. The seller is called the Artyas and under the agreement he should serve the traders for the purchase of groundnuts and other commodities for their house at Bombay and Madras. Under clause 7 of this Artyas agreement, the Artyas, that is, the seller under Ex. P-14 will draw on the concerned houses of the side traders demand drafts for 90 per cent of the contract price for the goods covered by clean and unqualified railway receipts made out in the name of the traders (plaintiffs) as consignors and consignees, the 10 per cent balance to be settled as provided in the Port Pass Contract of the said traders, Ex. P-14. A seller who executes in favour of the plaintiffs an Artyas agreement, Ex. P-14(a), will be entitled to supply the goods to the plaintiffs and the first contract for such supply is in the form of Ex. P-14, the General Port Pass Contract. For every subsequent contract for supply by the same dealer a shorter contract form is adopted in the form of Ex. P-15 which is like a sale note and it is signed by the sellers and buyers and is in the following terms :-"We hereby confirm of having sold today to Messrs. Louis Dreyfus & Co. Ltd., Bombay, 138 bags groundnuts Spanish of 177 lbs. net each, equal to 11 tone @ Rs. 15-10-9 (Rupees fifteen annas ten and pies nine only) per cwt. of 112 lbs. for free delivery at their godowns at Marmagoa harbour between 18th August, 1944, and 7th September, 1944, and subject to the terms and conditions set out in the Port Pass Contract dated 23rd January, 1942." The procedure adopted as regards these contracts with merchants outside the city is also spoken to by P.W. 1. The sellers after entering into these contracts have to inform the plaintiffs all the names of the up-country constituents from whom the sellers purchased, the quantities and other particulars of the stations from which they would despatch the goods. The sellers after entering into these contracts have to inform the plaintiffs all the names of the up-country constituents from whom the sellers purchased, the quantities and other particulars of the stations from which they would despatch the goods. This information the plaintiffs would pass on to the British Ministry of Food at Bombay who in turn pass on the information to the railways concerned for the supply of necessary wagons at the places indicated by the suppliers and then the sellers consign the goods in the plaintiffs' name as consignor and consignee. These suppliers are from anywhere in India, though the merchants outside Bombay City shown in Ex. P-5 are in Madras State and in Hyderabad and surrounding places. The sellers under the Port Pass Contracts post the railway receipts to the plaintiffs' office at Bombay and they draw on the plaintiffs a hundi for 90 per cent of the value and send through some bank at Bombay together with the railway receipts. The plaintiffs honour the hundi and take charge of the railway receipts. The railway receipts are sent to the plaintiffs' agent at Marmagoa who takes delivery of the goods after weighing in the presence of the sellers' representatives and draws up a report in the form of Ex. P-21 and if the agent is satisfied sends a report to Bombay and a final bill is prepared and payment made at Bombay in respect of the balance 10 per cent. Ex. P-16 is the receipt for the 90 per cent of the value of the goods, Ex. P-17 is the hundi and Ex. P-18 is the bill and receipt for the final payment. The payment in respect of the final bill as per Ex. P-18 is only made at Bombay either in person or by the sellers drawing a hundi on a bank at Bombay.The railway receipts in respect of the sellers under both forms of contracts are in the name of the plaintiffs as consignor and consignee. Prima facie therefore it would appear that the plaintiffs being the consignors from places within this State must be deemed to have purchased the goods here, became the owners thereof, and despatched the same to themselves at Marmagoa. The place of destination in respect of all these goods under these receipts is Marmagoa. Prima facie therefore it would appear that the plaintiffs being the consignors from places within this State must be deemed to have purchased the goods here, became the owners thereof, and despatched the same to themselves at Marmagoa. The place of destination in respect of all these goods under these receipts is Marmagoa. The reason assigned on behalf of the plaintiffs for mentioning themselves as consignors in the railways receipts is that of their having to comply with the instructions of the authorities regarding the sending of these goods by rail and to facilitate their easy despatch in pursuance of the permits. The goods that were railed from this State to Marmagoa had to pass through Castle Rock which was the British frontier customs station. In view of the prohibition of the export of oil seeds from any place in the State to any other place in India outside the State except to those who held a permit, groundnuts consigned in the name of any person other than those to whom permits are issued including the plaintiffs would not be allowed to pass Castle Rock and reach Marmagoa for the purpose of shipment. In view of that difficulty of getting through the Customs station of Castle Rock, the plaintiffs state that they have been asked by the authorities to rail these goods with themselves as consignor to facilitate the despatch of the goods through Castle Rock to Marmagoa. That this is so is evident from the correspondence that passed between the plaintiffs and the Collector of Salt Revenue and the railway authorities and also by the evidence of P.W. 1. The Madras and Southern Mahratta Railway Company issued a communication, Ex. P-25 dated 11th October, 1939, regarding the procedure to be followed in respect of particular descriptions of traffic including groundnuts in respect of which it is stated that where the groundnuts are booked to Messrs. Rally Brothers Louis Dreyfus and Company at Marmagoa harbour they will until further notice be passed by the Customs Authorities at Castle Rock without a licence. The Collector of Salt Revenue, Bombay, wrote on 17th November, 1939, Ex. Rally Brothers Louis Dreyfus and Company at Marmagoa harbour they will until further notice be passed by the Customs Authorities at Castle Rock without a licence. The Collector of Salt Revenue, Bombay, wrote on 17th November, 1939, Ex. P-26, informing the plaintiffs that under Section 5 of the Land Customs Act an exporter obtaining a permit for passage of goods via a land customs station should state his name in the export application and if therefore a consignment was booked by one of the constituents and the export application is filled in by him it will not be possible for the Customs manager at Castle Rock to know that the consignment is intended for the plaintiffs or booked on their account; therefore he suggests that along with the name of the constituent in the value declaration form it may be stated that he was the agent of the plaintiffs. To this letter the plaintiffs wrote Ex. P-27 on 20th November, 1939, stating that there was no need for that since their name appeared as consignee. In reply to that letter the Collector in his letter dated 9th December, 1939, Ex. 13, suggested that it was necessary either to furnish a list of the up-country agents to the Customs manager who will despatch the goods to the plaintiffs alone and not also to the other exporters or to show the plaintiffs' name as consignors in the export application. It is in pursuance of this direction and to avoid delay and objection at the Customs station of Castle Rock that the plaintiffs were permitting the sellers under the different contracts to use their name as consignors in the railway receipts. I have no reason to suppose that this is not the correct statement of the position, namely, that the plaintiffs were obliged to allow their name to be used as consignors in the railway receipts only for the purpose of satisfying the official requirements to facilitate easy despatch of the goods to Marmagoa for shipment.To constitute a sale under the Madras General Sales Tax Act of 1939 for the purpose of assessment it must be shown that the transfer of the property in the goods to the plaintiffs took place within the State. To determine whether the property in the goods passed under a particular contract, the intention of the parties has to be ascertained and it is to be inferred from the terms of the contracts themselves. In both the classes of contracts the railway receipts are sent to Bombay where 90 per cent of the amount is paid personally in respect of the city merchants and against hundies drawn on banks in Bombay, in respect of merchants outside the city. The place of delivery is Marmagoa throughout. The plaintiffs have reserved to them the right to reject the goods on examination and inspection at Marmagoa. On approval only, the balance of the price, namely the 10 per cent is laid and that too at Bombay, either in person or on hundi drawn on a bank at Bombay. So until the goods reach Marmagoa where they are to be delivered and subject to the plaintiffs satisfying themselves about the quality, quantity and other conditions as to the nature of the goods as per the terms of the contracts, the sellers would not be entitled to the balance of the price, and the plaintiffs did not obtain dominion over the goods until they exercised their option of not rejecting the goods and then making payment. That right to reject or accept the goods is provided to be exercised only at Marmagoa and not at any time before that. In such circumstances it cannot be stated that the seller has ceased to be the owner of the goods once he puts them in the bags and rails them and that the property in the goods passed to the buyer once they have been put into the bags and railed. In such circumstances it cannot be stated that the seller has ceased to be the owner of the goods once he puts them in the bags and rails them and that the property in the goods passed to the buyer once they have been put into the bags and railed. Taking the terms of the contracts and the procedure adopted, it could not be said that the property in the goods passed to the plaintiffs at any time before they exercised the right of rejection or approval at Marmagoa.The learned Advocate-General ralied on Section 23 of the Sale of Goods Act for the position that when once these groundnuts were bagged in the bags supplied by the plaintiffs and put in a deliverable state and delivered to a carrier by putting them in the rail for the purpose of transmission to the plaintiffs, the plaintiffs must be deemed to have unconditionally appropriated the goods to the contract and the property in the goods had therefore passed to the buyer as soon as the goods were railed. It could not be said, in view of the terms of the contract, that that appropriation could be said to be unconditional appropriation because it was subject to their final approval at Marmagoa where they reserved with themselves the right to reject, in which case the goods had to be taken back by the seller. In Louis Dreyfus & Co. v. South Arcot Groundnut Market Committee 1945 (1) MLJ 414 ), in a similar contract, though the full terms of which are not available from the reported judgment, entered into by the plaintiffs with a seller the question arose as to where the property in the goods passed, whether at the place where the seller consigned the goods by rail or at the place consigned to, which place, in that case, was Cuddalore, South Arcot District. In that contract there was a clause as to option in the plaintiffs of rejecting the goods or accepting the same with allowance to be fixed by them and the delivery to be completed at Cuddalore. The balance was to be paid on final completion of the contract and on receipt of a report of the correct delivery, of weight, of quality and other conditions at buyer's godown at Cuddalore. The balance was to be paid on final completion of the contract and on receipt of a report of the correct delivery, of weight, of quality and other conditions at buyer's godown at Cuddalore. It was there argued that the goods were unconditionally appropriated to the contract when the sellers placed the goods in the begs according to the specification and committed them to the charge of the railway. But it was observed that the goods were not then however unconditionally appropriated to the contract because they were subject to the approval of the buyers in their Cuddalore godowns and it was held on a reading of the terms that the purchase and sale was concluded in Cuddalore and not at the place where the goods were railed. It is pointed out that the contract which was the subject-matter in the reported decision is not before the Court and it cannot be said to be in the same terms as either Ex. P-19 or Ex. P-14. But the decision is cited only in support of the plaintiffs' contention that when a right to reject the goods is reserved, which right has to be exercised at the place of delivery which is Marmagoa, in spite of the fact that the goods have been ascertained and railed, Section 23 cannot have any application since the place where the property in the goods passed has to be ascertained from the intention of the parties and the intention of the parties, which is clear from the terms of these contracts, being that the property in the goods passed to the plaintiffs only after the last term of the contract is complied with, namely, the approval by the plaintiffs of the goods at Marmagoa, when alone the sellers would be entitled to the balance of the 10 per cent price. That the determining factor is the intention of the parties is the accepted principle in the English law and it has been observed in Abdul Aziz Bepari v. Jogindra Krishna Roy ( 1917 (44) ILR(Cal) 98 at 115) that the Indian law is the same and the provisions of Section 81 of the Indian Contract Act do not exclude the question of intention which is laid in the English cases as the determining factor. Though Chapter VII of the Indian Contract Act containing Section 81 has now been repealed by the Indian Sale of Goods Act, it now corresponds to Section 22 of the Sale of Goods Act and I am of opinion that by reason of the enactment of the Indian Sale of Goods Act it can be said that the governing principle which should determine as to the passing of the property in the goods must be to find out what is the intention of the parties. There is no difficulty in this case, in finding as to what is the intention of the parties in view of the terms of the contract and the procedure that is followed as found in the documents and spoken to by the witnesses. Apart from the evidence of P.W. 1 in respect of the sellers who reside in Bombay City, P.Ws. 3 to 6 speak about the procedure in respect of Ex. P-19 contracts, while P.W. 2, a partner of one of the sellers testifies as to the procedure and the terms of the contracts in Exs. P-14, P-14(a) and P-15.The learned Advocate-General states however that when once the plaintiffs are the consignors, the consignment having been made from stations within the State, it must be held that the plaintiffs are the owners of the goods consigned. It is argued that certain classes of goods like groundnuts could not be exported from the State to any place outside the State in India unless by persons to whom permits are granted and that such persons could send their goods alone and not goods belonging to others. By virtue of these permits it is stated that the goods that belonged to others could not be railed to any place outside the State because they are not the permit holders. Therefore the goods must be deemed to belong to the plaintiffs who are the consignors and that, therefore, they are owners of the goods and being the absolute owners of the goods on consignment within the State the property must be deemed to have passed before they were railed. In order to justify imposition of the assessment on these transactions under this particular statute it must be shown that there has been a sale within the State, that is, a transfer of the property to the plaintiffs. In order to justify imposition of the assessment on these transactions under this particular statute it must be shown that there has been a sale within the State, that is, a transfer of the property to the plaintiffs. If the argument of the learned Advocate-General has to be accepted, one has to shut his eyes to the entire terms of the contract and ignore the evidence in this case. The mere circumstance that the name of the buyer appears as a consignor should not stand in the way of the Court coming to a conclusion on the terms of the contract and find out as to where the property in the goods passed. This, as I have said, has to be decided by finding out the intention of the parties. If intention is to be sole test it could be stated that the parties never intended by mentioning the plaintiffs as consignor and consignee to effect a transfer of the property by specifying the plaintiffs as consignor. It has been sufficiently explained by the plaintiffs and I am satisfied with the explanation that but for the restrictions imposed on the movement of the goods at the relevant time and their being compelled to comply with certain formal requirements, they would not have allowed themselves to be mentioned as consignors which conduct on their part could not deprive them of their rights under the contract or to prevent them from stating what the true intent is.It is also argued that the railway receipt being a document of title under the Sale of Goods Act, it must be held that the goods covered by the receipt belong to the plaintiffs who are mentioned as consignor and consignee. No doubt possession of the railway receipt which is a document of title would entitle the plaintiffs to deal with the goods as persons having possession and control of the goods; but that would not make them owners if in a contract entered into by them regarding these goods with third parties they were not really the owners on that date. Some comment was made on behalf of the defendant as regards Ex. P-19. Ex. P-19 is a printed form with some blank space for mentioning the place of delivery and 'Marmagoa' is filled in with rubber stamp. Some comment was made on behalf of the defendant as regards Ex. P-19. Ex. P-19 is a printed form with some blank space for mentioning the place of delivery and 'Marmagoa' is filled in with rubber stamp. It is contended that the suit transactions covered several contracts and it cannot be said on the production of Ex. P-19 alone that in all the contracts the place of delivery was mentioned as Marmagoa and that since the place of delivery is left blank in those printed forms it was intended to have different places of delivery and it is likely that in respect of all the contracts Marmagoa was not the only place of delivery, and there may be other towns which might have been introduced and that the plaintiffs have not proved by placing all the contracts that the delivery in all these cases was at Marmagoa and not elsewhere. The plaintiffs have no doubt been not able to file all the contracts which are several in number but have filed only a few as it is stated that they are not available. I have no reason to disbelieve the evidence on behalf of the plaintiffs in this respect that in all the contracts Marmagoa was mentioned as the place of delivery. Even if there is any doubt, I am satisfied on their production of Ex. P-32 series, the purchase books maintained by the plaintiffs in respect of all these contracts, that the place of delivery is Marmagoa. There is no reason not to accept the evidence of the plaintiffs in this behalf. I hold therefore that in respect of all these contracts the place of delivery was Marmagoa.It is also further pointed out that in respect of the contracts in the form of Ex. P-19 there is no specific mention of the right to reject the goods as in Ex. P-14. No doubt it is true. But that the right to reject the goods which has been expressly provided under Ex. P-14 is also a term of the contract between the parties under Ex. P-18 is spoken to by P.Ws. 1 and 2, the latter being a party to one of these contracts. P-14. No doubt it is true. But that the right to reject the goods which has been expressly provided under Ex. P-14 is also a term of the contract between the parties under Ex. P-18 is spoken to by P.Ws. 1 and 2, the latter being a party to one of these contracts. On a careful examination of the evidence in this case and the scrutiny of the terms of the several contracts I am satisfied that the transfer of these goods had not taken place within this State, the property in the goods having passed only at Marmagoa, in any event, not within the Madras State. It is next contended on behalf of the plaintiffs that the Commercial Tax Officer had no jurisdiction or power to act under Rule 14(2) in assessing the alleged escaped turnover and, therefore, such assessment is illegal and ultra vires. The assessment for the year 1944-1945 was completed by the Deputy Commercial Tax Officer, Harbour Division, by his order dated 27th March, 1946, Ex. P-1. The turnover of the value of Rs. 30, 03, 650-12-6 representing the value of the purchases made by the company's Bombay office under the contracts referred to were not included in the said order. The plaintiffs were having on an average 30 sub-agencies in this State during 1944-1945 and these were mainly managed by paid agents. Some of the sub-agencies were functioning under their Bombay office and the turnover effected under these sub-agencies was also included in the assessable turnover. On 6th March, 1946, by Ex. P-2(a), the Deputy Commercial Tax Officer called for information from the plaintiffs as to the purchase of groundnuts from three parties, covered by items 19, 23 and 24 in the list, Ex. P-5. Information was furnished by the plaintiffs in Ex. P-4 dated 31st December, 1946, referring to the contracts with reference to these persons. A copy of the General Port Pass Contract in the form of Ex. P-14 was also sent and it was stated how the purchases were outside the State even though the railway receipts contained the names of the plaintiffs as consignor and consignee. On 28th March, 1947, the Commercial Tax Officer, North Madras, served a notice Ex. A copy of the General Port Pass Contract in the form of Ex. P-14 was also sent and it was stated how the purchases were outside the State even though the railway receipts contained the names of the plaintiffs as consignor and consignee. On 28th March, 1947, the Commercial Tax Officer, North Madras, served a notice Ex. P-6 on the plaintiffs stating that under the powers vested in him under Rule 14(2) of the Madras General Sales Tax Rules he proposed to revise the assessment already made by the Deputy Commercial Tax Officer by including the escaped turnover of Rs. 30, 03, 650-12-6 as that figure was not included in the return submitted by the firm or in their turnover determined by the Deputy Commercial Tax Officer and asking the plaintiffs to show cause why the assessment should not be revised. The plaintiffs replied by their letter of 29th March, 1947, Ex. P-7, stating that the sum of Rs. 30, 03, 650-12-6 represented the gross turnover of their Bombay office purchases at Bombay for the year 1944-1945 for delivery at Marmagoa harbour, the payments both initial and final being made at Bombay, and it also referred to the contracts and the previous correspondence. On that the Commercial Tax Officer, North Madras, by his proceedings dated 31st March, 1947, Ex. P-8 assessed the plaintiffs purporting to proceed under Rule 14(2) of the rules and revised the assessment. The ground of his decision was that since the goods in all the cases were despatched from stations within the State, the property in the goods passed to the plaintiffs when the goods were put on rail within the State in their name as both consignor and consignee and that the purchases were completed within the State and so the plaintiffs were liable to pay the tax on this amount also. That the Commercial Tax Officer treated the sum of Rs. 30, 03, 650-12-6 as the value of the escaped turnover can admit of no doubt as is clear from Exs. P-6 and P-8. That the Commercial Tax Officer treated the sum of Rs. 30, 03, 650-12-6 as the value of the escaped turnover can admit of no doubt as is clear from Exs. P-6 and P-8. As regards the right of the Commercial Tax Department to assess the escaped turnover, Rule 17 of the Madras General Sales Tax Rules framed in pursuance of Section 19 of the General Sales Tax Act provides :- "(1) If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, may, at any time within the year or the year next succeeding that to which the tax or licence fee relates, assess the tax payable on the turnover which has escaped assessment or levy the licence fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary." * The assessing authority in this case is the Deputy Commercial Tax Officer, Harbour Division, and it was open to him by virtue of this rule to have assessed this escaped turnover within the expiry of the year 1945-1946 as the assessment year was 1944-1945. Admittedly that has not been done. But the period provided for under Rule 17 during which the escaped turnover can be assessed having expired, the Commercial Tax Officer has levied this assessment over the escaped turnover under Rule 14(2) whereby the Commercial Tax Officer may in his discretion at any time either suo motu or on an application call for and examine the record of any order passed or any proceedings recorded under the Act by an Assistant or Deputy Commercial Tax Officer working under him, for the purposes of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceedings and may pass such order in reference thereto as he thinks fit. Under this rule the Commercial Tax Officer is vested with powers of revision where an assessment is made initially, and under Section 11 of the Act and under Rule 13(1) of the rules an appeal is provided for from the order of the licensing or assessing authority to the Commercial Tax Officer of the District. Under this rule the Commercial Tax Officer is vested with powers of revision where an assessment is made initially, and under Section 11 of the Act and under Rule 13(1) of the rules an appeal is provided for from the order of the licensing or assessing authority to the Commercial Tax Officer of the District. However an order passed on such appeal shall be subject to the powers of revision conferred by section 12 of the Act, under which the Board of Revenue is constituted as the revising authority as also the Commercial Tax Officer under Rule 14, sub-rule 2.The question that calls for decision is whether where there is a provision for dealing with escaped turnover and limitation is provided for such escaped turnover to be assessed, it would be open to the Commercial Tax Officer as the revisional authority to proceed under Rule 14(2) and assess the escaped turnover. The Commercial Tax Officer under Rule 14(2) can call for and examine the record of any order passed by the Deputy Commercial Tax Officer in this case for the purpose of satisfying himself as to the legality of propriety of such order or as to the regularity of such proceedings. It is stated in this case that the Commercial Tax Officer on further examining the record was satisfied about the legality of the order and also as to the regularity of the proceedings but only considered about the propriety of such order and held that the order Ex. P-1 was not proper in the sense that it was not correct and that, therefore, he corrected it by including the escaped turnover of Rs. 30, 03, 650-12-6. It does appear to me that the Commercial Tax Officer has only revisional jurisdiction as it is commonly understood of examining the record of any order and deciding as to its legality or propriety and it is not open to the Commercial Tax Officer to go beyond the order or the record contained and act upon further information or evidence placed before him so as to disturb the order originally passed and hold that it was not proper. The revisional jurisdiction conferred on an authority does not ordinarily empower the authority to call for fresh evidence and revise the order on the basis of such fresh evidence, or new material that is placed before such authority unless the revising authority is expressly empowered to do so. The language of Rule 14(2) is almost in the same terms as in Section 435 of the Criminal Procedure Code. But in exercising the revisional jurisdiction, it will not be open to Courts acting under Section 435 alone to order a fresh enquiry and direct fresh evidence to be taken; they are empowered to do so under other provisions of the Criminal Procedure Code. There are no such provisions in the Sales Tax Act and under Rule 14(2) it was not open to the Commercial Tax Officer to go beyond the evidence and the material that was placed before the Deputy Commercial Tax Officer, Harbour Division, when he made the assessment Ex. P-1. It is observed in Ex. P-6, the notice sent by the Commercial Tax Officer, that investigation has however shown that the purchases within the State were such that they are liable to pay the tax. It is stated that he examined the connected assessment file with reference to the details of export of groundnuts from the State. No such file is produced and there can be no doubt that on further information and the material furnished by the department the Commercial Tax Officer has proceeded to assess this escaped turnover and he did not confine himself strictly within the revisional jurisdiction with which alone he is vested under Rule 14(2). It is argued on behalf of the plaintiffs that apart from the Commercial Tax Officer not having jurisdiction to assess the escaped turnover, the plaintiffs were prejudiced by reason of the Commercial Tax Officer having proceeded under Rule 14(2) as they had no right of appeal and a further right of revision which they would be ordinarily entitled to if the assessment is made either under Rule 13 or Rule 17 where both an appeal and revision are provided. It may be stated here however that the plaintiffs filed a revision petition as against the order of the Commercial Tax Officer but the Board of Revenue rejected it. It may be stated here however that the plaintiffs filed a revision petition as against the order of the Commercial Tax Officer but the Board of Revenue rejected it. The right of appeal is no doubt a valuable right and that is not available against an order under Rule 14(2) which is only an order passed in revision and not an order of initial assessment.It is contended on behalf of the State that the language of Rule 14(2) is wide and if it comes to the notice of the Commercial Tax Officer while examining the record of the case that any turnover has escaped assessment he is entitled to pass a proper order and that he is entitled also to rely upon subsequent information gathered by the assessing authority which must be treated to form part of the record. I am, however, unable to agree with this contention and I do not see in the language of Rule 14(2) any wider powers than are ordinarily given to a revising authority. He is entitled to examine the record of any order but is not entitled to call for or direct an enquiry when alone he could get the information on which he will be enabled to act. It is not disputed that the Commercial Tax Officer has proceeded not only on the record of the case but also has taken into account the result of the further investigation made by his subordinates and passed the order based on such information. To entitle him to institute a fresh enquiry or direct an enquiry to be made there must be express power conferred on him as is done to such revising authorities in other enactments. In the Criminal Procedure Code Section 435 by itself does not empower the revising authority to order enquiry but Sections 436 and 437 empower the authority to order enquiries and to order commitment. There are also provisions whereby a revisional Court is entitled to make or direct further enquiries. Similarly in the Indian Income-tax Act under Section 33A the Commissioner of Income-tax who is invested with revisional powers is permitted to make such enquiry or cause such enquiry to be made. In the absence of such provision the Commercial Tax Officer cannot extend himself the jurisdiction which is not vested in him and which is confined by what is contained in Rule 14(2). In the absence of such provision the Commercial Tax Officer cannot extend himself the jurisdiction which is not vested in him and which is confined by what is contained in Rule 14(2). Further this being a case of assessment of escaped turnover there is a specific provision for tackling such turnover under Rule 17 and there is a period of limitation fixed in that rule, namely, the year of assessment and the year after that. It was therefore not open to the tax authorities to assess the escaped turnover, this being for the year 1944-1945, after the end of 1945-1946, that is, after 31st March, 1946. Apparently finding that any proceeding under Rule 17(1) is barred, the Commercial Tax Officer has chosen to assess the escaped turnover under Rule 14(2) taking advantage of the fact that no time limit is fixed under Rule 14(2) under which a Commercial Tax Officer may in his discretion at any time either suo motu or on an application call for and examine the record and revise the order of the assessing authority. It is well established that where there is a specific provision in an enactment, the proceeding must be taken under that provision and not under any general provision, even if it could be said that under Rule 14(2) the Commercial Tax Officer is entitled to consider the case of escaped assessment. But here the act of the Commercial Tax Officer in trying to reopen the assessment which has become complete by reason of limitation provided under Rule 17(1) appears to be very glaring. The Commercial Tax Officer's power under Rule 14(2) can only be exercised by him subject to the other provisions of the Act and the rules and where Rule 17 clearly provides the period of limitation for considering escaped turnover, the Commercial Tax Officer can only make an order even as regards the escaped turnover only within the period specified under Rule 17(1) and that period having expired there was no provision either in the Act or in the rules empowering the authorities to assess this turnover. This appears to me to be a case of circumventing the provisions of the rules and bringing within his revisional powers what is legitimately the province of the assessing authority. There has been an amendment of the rules taking effect from 1st January, 1948. This appears to me to be a case of circumventing the provisions of the rules and bringing within his revisional powers what is legitimately the province of the assessing authority. There has been an amendment of the rules taking effect from 1st January, 1948. The amended rules have no application to the present case as this assessment was made by an order of 31st March, 1947, and related to the year 1944-1945. Rule 14-A of the amended rules which is a new provision introduced empowers the appellate or revising authority if satisfied that the initial assessment was less than the correct amount of the tax payable by the dealer, before passing orders, to determine the correct amount of tax payable by the dealer after issuing notice to the dealer and after making such enquiry as the appellate or revising authority considers necessary. There is no provision in rule 14(2) for making such an enquiry. Rule 17 has also been amended fixing the period of limitation to two years after the year of assessment instead of one year as in the unamended rule. The amended Rule 17(3) says that the turnover of a dealer or licensee which has escaped assessment to tax in the year 1945-1946 shall not be assessed to tax after the 31st March, 1947. This turnover is for the year 1944-1945 and in any view of the case, it is clearly out of time. Even under the rule making power, Section 19(f), a maximum period of three years is provided, for which rules could be framed so as to assess an escaped turnover. A reference is made to these rules only to show that the legislature and the authority framing the rules considered that in so far as assessing of escaped turnover is concerned the assessment could not be made after a particular period. There is a reason and purpose behind this fixing of the period as it would not be just or reasonable to call upon the assessees to account for escaped turnover for any longer period prior to the date of the assessment for there will be difficulty for the assessees to produce evidence by way of vouchers and accounts to meet any charge of turnover having escaped assessment if made by the authorities at any time. If the contention on behalf of the State that the Commercial Tax Officer could at any time assess escaped turnover is to be accepted, the provision in Section 19(f) fixing a time limit for assessing the escaped turnover is rendered nugatory. I am satisfied that Rule 14(2) conferred no such power on the revising authority and even if he had acted under Rule 14(2) instead of Rule 17(1) which would be the proper provision he could not reopen an assessment beyond the period fixed under Rule 17. The Commercial Tax Officer in imposing this assessment by his order dated 31st March, 1947, Ex. P-8, has acted without jurisdiction and the assessment is therefore illegal and ultra vires of his powers.When the case was taken up for trial, the learned Advocate-General raised an objection as to the maintainability of the suit; but the objection was not raised in the written statement and no issue was framed. It is contended that the suit is not maintainable by the original side of the High Court, Section 226 of the Government of India Act being a bar to such an action. Section 226 of the Government of India Act states :- "Until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force." * It is stated that the matter covered by this suit is a matter concerning revenue and that it is in any event with reference to an act ordered or done in the collection of such revenue. This restriction has, however, been removed by the Constitution by virtue of the proviso to Article 225. While defining the jurisdiction of the existing High Courts under Article 225 it is provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of the Constitution shall no longer apply to the exercise of such jurisdiction. This Court could therefore exercise jurisdiction after 26th January, 1950. The suit was filed on 11th October, 1947, the cause of action having arisen on 31st March, 1947. This Court could therefore exercise jurisdiction after 26th January, 1950. The suit was filed on 11th October, 1947, the cause of action having arisen on 31st March, 1947. The period of limitation is either six months under Section 18 of the Sales Tax Act or one year under Article 16 of the Limitation Act. It is contended that the suit having been instituted on 11th October, 1947, by the time the original side of the High Court acquired jurisdiction on 26th January, 1950, the claim had become barred by limitation. Even if this Court can exercise such original jurisdiction, since the cause of action became barred, any acquisition of subsequent jurisdiction will not revive a claim that has become barred and it is contended that the utmost that can be stated in favour of the plaintiffs is that the suit could be treated to have been instituted on 26th January, 1950, when the Court acquired jurisdiction.To understand the objection raised on behalf of the State it is necessary to find out what the jurisdiction of the original side of the High Court was on the date of the presentation of the plaint. Clause 12 of the amended Letters Patent deals with the scope of the original side jurisdiction of the High Court. It states :- ".......High Court of Judicature at Madras, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of court shall have been first obtained in part, within the local limits of the ordinary original jurisdiction of the said High Court or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits........" * The suit is not a suit for land but a suit for recovery of certain amounts which have been collected from the plaintiffs which the defendant alleges is revenue while the plaintiffs contend that they are monies collected purporting to be revenue. Assuming it is revenue has the High Court on its original side, absolutely no jurisdiction to entertain a suit where recovery of an amount collected by the State as revenue is concerned. As to what is meant by jurisdiction Bailey states in his book on Jurisdiction, Vol. I, as follows at page 1 :- "Jurisdiction is the power to hear and determine the subject-matter in controversies between parties to suit; to adjudicate or exercise any judicial power over them. The question of jurisdiction must be considered and decided before any court can move one step further in the cause, as any movement is necessarily the exercise of jurisdiction. The real question is whether, in the case before a court, its action is judicial or extra-judicial, with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction. What shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action and judgment, by hearing and determining it. Bracton defines jurisdiction to be authority to judge or declare the law between parties brought into Court. It was said by Ryan, C.J., in In re Pierce (44 Wis 454) that this definition had never been bettered, probably never would be and is of universal authority." * Further Bailey states :- "The jurisdiction of the tribunal does not depend upon the actual facts alleged, but upon the authority to determine the existence or non-existence of such facts and to render judgment according to its findings. If such authority exists then the tribunal has jurisdiction of the subject-matter." * Jurisdiction of a court is exercised with reference to a person and with reference to a particular subject-matter. At page 3 of the same book Bailey states :- "It was stated by one court : 'By jurisdiction of the subject-matter is meant the nature of the cause of action and of the relief sought, and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred. The power to render the judgment or decree which the court may undertake in the particular cause depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause." * Finally he states that jurisdiction is the power lawfully conferred to deal with the subject involved in the action. Applying Clause 12 of the Letters Patent it will be seen that the defendant has his office within the limits of the original side jurisdiction of said court and the cause of action has also arisen within the said limits. If that is so, there is nothing preventing the High Court in receiving the plaint where the two conditions mentioned in Clause 12 are satisfied as in this case. But there is a restriction imposed by Section 226 of the Government of India Act in the exercise of such jurisdiction in any matter concerning the revenue, or any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force. The scope of the provision corresponding to Section 226 of the Government of India Act was considered by Lord Campbell in Spooner v. Juddow ((1846-50) 4 M.I.A. 353). In that case in respect of an alleged illegal collection of 'quit rent' it was held that 'quit rent' was part of the revenue of the East India Company and the cause of action was a matter concerning the revenue under the management of the Governor and Council of Bombay and concerning an act done according to the Regulations of the Governor and Council of Bombay. Lord Campbell observes at page 379 :- "The point, therefore, is whether the exception of jurisdiction only arises where the defendants have acted strictly, according to the usage and practice of the country, and the regulations of the Governor and Council. But upon this supposition the proviso is wholly nugatory; for if the Supreme Court is to inquire whether the defendants in this matter concerning the public revenue were right in the demand made and to decide in their favour only if they acted in entire conformity to the Regulations of the Governor and Council of Bombay they would equally be entitled to succeed if the Statutes and the charters contained no exception or proviso for their protection. Our books actually swarm with decisions putting a contrary construction upon such enactments, and there can be no rule more firmly established than that if parties bona fide and not absurdly believe that they are acting in pursuance of Statutes and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act." * This statement of the law has been approved in a series of decisions, namely Messrs. Best & Co. Ltd. v. The Collector of Madras 1918 (35) MLJ 23 ), Shaikh Ali Ahmed v. The Collector of Bombay, Governor-General in Council v. Raleigh Investment Co. Ltd. (1944 F.L.J. 131;and Governor-General in Council v. Shiromani Sugar Mills Ltd. 1946 (1) MLJ 415 ) In a suit of this nature which is instituted for recovery of sales tax collected by the Government which it is contended was illegal for certain reasons alleged in the plaint, when objection is taken as to jurisdiction under Section 226 of the Government of India Act, it would be necessary for the Court to examine and consider on the facts and the material that may be placed before it, whether Section 226 can apply and if so what part of it. There are two parts to Section 226 where the exercise of the original jurisdiction is restricted. The restriction is in respect of any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force. The exercise of the jurisdiction would therefore depend upon the existence or otherwise of certain facts. It is only then that the court can come to a conclusion whether it is case where the court could exercise the jurisdiction or should refuse to do so. In that view could it be said that the court has no jurisdiction at all to even entertain the plaint though at a later stage, when strictly applying the principles laid down as to in what cases it could be held if the order directing the collection was not bona fide and absurd as laid down by Lord Campbell in Spooner v. Juddow ((1946-50) 4 M.I.A. 353). The stage therefore at which the jurisdiction is exercised is at the time of the hearing and judgment and not at the time of the entertainment of the suit. Therefore, in my opinion, Section 226 does not provide for an absolute want of jurisdiction in the High Court on its original side but imposes only a restriction on the exercise of its jurisdiction which could only be done under certain conditions and in certain circumstances. In that view it could not be said that this court had no power to receive the plaint or that it has not been properly entertained. This aspect was discussed to a certain extent by Spens, C.J., in Governor-General in Council v. Raleigh Investment Co. Ltd. 1944 (1) MLJ 477 The question in that case was whether Section 4(1)(c) of the Income-tax Act and Explanation 3 to Section 4(1) of the Act were beyond the law making powers of the Indian Legislature and therefore void and had no legal effect. Spens, C.J., observed that as the dispute concerned revenue, taking the word revenue in its ordinary sense according to Section 226 the bar was absolute. In the course of the judgment the learned Chief Justice observes :- "In the only reported case where the application of Section 226 had to be considered on an allegation that revenue law itself was illegal, a special Bench of the Bombay High Court held that 'before the section can apply, we must determine that the tax which is challenged is legal' (See Sir Jeejibhoy v. The Province of Bombay (1940 1940 ILR(Bom) 58)). There is no discussion of the question in that judgment, apparently because the point 'was not seriously contested by the Advocate-General' in that case. The authority of that pronouncement does not in any event carry us further than the considered judgment of the Calcutta High Court in the present case. Mitter, J., refers to the analogy of cases where a Court has power to determent what are called jurisdictional facts, if the jurisdiction of the Court depends on the existence of certain facts. In such cases, the jurisdictional or exclusionary provisions will ordinarily be of a qualified character and indicate what facts must be found before the jurisdiction can attach or be excluded. In such cases, the jurisdictional or exclusionary provisions will ordinarily be of a qualified character and indicate what facts must be found before the jurisdiction can attach or be excluded. But as we read Section 226, the bar is absolute, if the dispute concerns revenue taking the word 'revenue' in its ordinary sense." * Therefore it cannot besaid that the court is prohibited in receiving the plaint in the sense that it has no jurisdiction to receive the plaint or entertain the suit. There is no initial lack of jurisdiction, that is, exercise of jurisdiction in receiving the plaint on its file and registering it. But in a case of absolute want of jurisdiction as in the case of a defendant residing outside, or where the cause of action has arisen outside, or where the land, in a suit for land, is situated outside the original jurisdiction of this Court, it cannot be said that the court has jurisdiction to receive the plaint and register it, that is exercise of a jurisdiction to entertain the suit. It is necessary to appreciate this distinction since in one case as in the present case there is only a restriction as to the exercise of the jurisdiction while in the other case there is absolute want of jurisdiction. This is not a case where there is absolute want of jurisdiction. That it is a restriction is also made clear by the proviso to Article 225 of the Constitution which has already been referred to. The words used in the proviso are "provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of the Constitution shall no longer apply to the exercise of such jurisdiction." * So it was not a total exclusion of jurisdiction but only a restriction. The jurisdiction could be exercised but is restricted under certain conditions as laid down in Section 226 of the Government of India Act.Mr. Nambiar laid emphasis on the words "exercise of jurisdiction" used in Section 226. There is force in this contention that exercise of jurisdiction should refer to the stage when the Court hears and determines. The jurisdiction could be exercised but is restricted under certain conditions as laid down in Section 226 of the Government of India Act.Mr. Nambiar laid emphasis on the words "exercise of jurisdiction" used in Section 226. There is force in this contention that exercise of jurisdiction should refer to the stage when the Court hears and determines. That appears to be the only meaning that can be attached in the context to the word "exercise". The jurisdiction of a court includes no doubt its power to entertain the suit. What is meant under Section 226 is that the jurisdiction cannot be exercised - which could be only when the court hears and determines the case and adjudicates upon the rights of the parties and passes a judgment when it finds that it is a matter concerning the revenue, or it is a matter that relates to an act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force. The words "exercising jurisdiction" must have been advisedly used to mean the time at which the court applies its mind and decided on the matter before it. In Gurudeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rash Behary Singh ( 1909 (36) ILR(Cal) 193 at 206) when dealing with the distinction between absolute want of jurisdiction and an irregular assumption of jurisdiction it is stated that the foundation of the jurisdiction has been fully explained in the Order of Reference to a Full Bench in the cases of Sukh Lal Sheikh v. Tara Chand Ta ( 1905 (33) ILR(Cal) 68) and Khosh Mahomed Sirkar v. Nazir Mahomed ( 1905 (33) ILR(Cal) 352) and it is observed as follows :- "In the first of these cases, it was pointed out that jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it." * In view, therefore, that there is no inherent want of jurisdiction, the suit may be deemed to have been properly entertained, the court having power to entertain it. If in fact the court had absolutely no jurisdiction, the presentation of the plaint in such a court would be no presentation at all. But here it is otherwise. If in fact the court had absolutely no jurisdiction, the presentation of the plaint in such a court would be no presentation at all. But here it is otherwise. The learned Advocate-General cited the decision in Chokkalinga Pillai v. Velayudha Mudaliar 1924 (47) MLJ 448 ) where Phillips, J., observes that the jurisdiction of a court consists in its power to entertain suits and when once a suit has been properly entertained, its jurisdiction to try it to its conclusion is not removed unless it is specifically so done by the order of a competent authority. In that case the court had jurisdiction over the subject-matter at the time of the institution of the suit but subsequently it was taken away. In such circumstances it was held that the case having been once entertained and the court having seisin of the case, it has jurisdiction to try it to a conclusion unless there was any reason for holding that that jurisdiction had been removed. I hold that the High Court had jurisdiction to receive the plaint ant entertain the suit and the plaint was properly filed and no question of limitation could arise.It is next contended on behalf of the defendant that even though the restriction as to exercise of jurisdiction has been removed by the Constitution, it being only a repealing provision, it does not affect existing rights. The right which the defendant is stated to have acquired is the right to keep the money by reason of the claim being barred by limitation on the date when this court had acquired jurisdiction. Section 6 of the General Clauses Act which is made applicable to the interpretation of the Constitution by Article 367(1) of the Constitution deals with the effect of repeal and says that the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. That the repeal of an enactment saves vested and accrued rights cannot be disputed. That the repeal of an enactment saves vested and accrued rights cannot be disputed. The effect of a repealing statute has been laid down to be to obliterate it as completely from the records of the Parliament as if it had never existed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law, vide Kay v. Goodwin (130 Eng. Rep. 1403 at 1405). But it is contended on behalf of the plaintiffs that the Constitution does not give a new right of action and only states that a court on which a restriction was placed on the exercise of the jurisdiction in a particular matter and in particular circumstances is taken away and that relates only to procedure and not to any substantive rights and that an enactment of this nature, namely the Constitution, can have retrospective effect since the provision regarding the exercise of jurisdiction is only a matter of procedure and does not relate to any substantive right.Salmond observes as follows in his book on Jurisprudence at page 495 and page 496 :- "The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions - jus quod ad actiones pertinet - using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated. Procedural law is concerned with affairs inside the courts of justice; substantive law deals with matters in the world outside. "A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Procedural law is concerned with affairs inside the courts of justice; substantive law deals with matters in the world outside. "A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions." * In Ram Karan v. Ram Das (1931 1931 AIR(All) 635 at 639), Sulaiman, Acting C.J., in a case dealing with jurisdiction observes as follows :- "No doubt a substantive right is not assumed to be taken away by a new Act unless it expressly says so. But a right to sue in one court rather than another or a right to wait for a particular period of time before suing is not a substantive right. The selection of forum and the period of limitation are ordinarily matters of procedure only. The selection of a Court in no way affects the right of suit itself." * In Hurst v. Hurst 21 Ch(D) 278 at 294 and 295) where a proceeding could not have been maintained prior to the passing of the Judicature Act it was observed by Jessel, M.R., as follows :- "Before the Judicature Act no bill in equity could have been maintained for that purpose, not because the plaintiff had no right, but because a Court of Equity had no jurisdiction to enforce it any more than the Divorce Court had. But, before the cause came on to be heard, the Judicature Acts came into operation, transferring the jurisdiction of all the old Courts to the High Court, and enabling all the branches of the High Court to exercise that jurisdiction with a provisions as to pending suits. But, before the cause came on to be heard, the Judicature Acts came into operation, transferring the jurisdiction of all the old Courts to the High Court, and enabling all the branches of the High Court to exercise that jurisdiction with a provisions as to pending suits. The Act in this way, no doubt, in some sense affects the rights of parties, but only by way of obviating the objection that a plaintiff has gone to the wrong court, and parties have no such vested right in a defence arising from a defect of jurisdiction in a particular court as ought to be saved when that defect of jurisdiction is removed during a pending suit." * The right to urge want of jurisdiction as a defence has been considered by Jessel, M.R., to be not a vested right. It is however contended by the learned Advocate-General that the right of action is a substantive right and is not a matter of procedure and cited Krishnaswami v. Venugopal (1942 1942 ILR(Mad) 376) and Colonial Sugar Refining Company v. Irving. In the former case a suit was filed in the court of the Subordinate Judge of Trichinopoly against certain defendants who resided in Rangoon for possession of properties, movable and immovable, in 1932. On 1st April, 1937, the Government of India Act, 1935, came into operation and under Section 46(2) of the Act, Burma ceased to be part of India. The defence raised an objection as to the jurisdiction of the Trichinopoly Sub-Court to continue the suit. The Subordinate Judge held in favour of the defendants but the High Court held that the Sub-Court, Trichinopoly, could continue to try the suit and pass a decree affecting the properties situated in Burma also. In the course of the judgment Kunhiraman, J., observed relying on Colonial Sugar Refining Company v. Irving that the right to institute a suit or to file an appeal in a particular court must, in view of the decision of the Privy Council, be regarded as a substantive right and not merely a matter of procedure or processual law. He goes on to observe :- "If the right involved is not of this nature but affects only a rule of procedure, then there cannot be any doubt as to the retrospective effect of Section 46(2) of the Government of India Act, 1935. He goes on to observe :- "If the right involved is not of this nature but affects only a rule of procedure, then there cannot be any doubt as to the retrospective effect of Section 46(2) of the Government of India Act, 1935. But, if, on the other hand, the right affected concerns a rule of substantive law, as I feel no doubt it does in the present case, then different considerations must prevail and the newly enacted statute cannot prima facie be presumed to be retrospective in its effect." * In Colonial Sugar Refining Company v. Irving relied upon, the right that was in question was a right of appeal to the Privy Council which right was taken away by a subsequent enactment conferring a right of appeal to the High Court of Australia. It was observed by Lord Macnaghten :- "To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." * The decisions in Hamilton Gell v. White 1936 Ch(D) 237) Debtor ex parte 21 Ch(D) 278) were cited. These related to cases where a party has acquired certain rights under a previous statute which however a repealing Act could not disturb. But by virtue of Section 226 what all the defendant could contend is that it was open to him to raise by way of defence objection as to jurisdiction which objection he is not entitled to raise if it is held that the proviso to article 225 of the Constitution would apply to this action. But by virtue of Section 226 what all the defendant could contend is that it was open to him to raise by way of defence objection as to jurisdiction which objection he is not entitled to raise if it is held that the proviso to article 225 of the Constitution would apply to this action. As observed by Jessel, M.R., in Hurst v. Hurst 21 Ch(D) 278) a party has no such vested right in a defence arising from a defect of jurisdiction in a particular court as ought to be saved.It is however argued that since the High Court on its original side had absolutely no jurisdiction to entertain the suit it may be treated that the suit has been instituted in a court which has no inherent jurisdiction and that therefore the presentation of the plaint was not proper presentation. In such cases the proper course would be for the plaint to be returned and presented in a court which has jurisdiction. In the present case, however, the plaint has not been returned as there is no provision or practice in the original side to return such plaints excepting by the Judge when the question of jurisdiction is heard and disposed of. It may be observed in this case that the objection as to jurisdiction was never raised in the written statement and was not an issue and for the first time it was taken after the trial opened. The matter could not therefore have been gone into earlier. However by the time the court took up this case for hearing the court has acquired jurisdiction. It is argued that nothing prevents the court from hearing the case since it has jurisdiction to hear and determine the case. There is no question here of returning the plaint and re-presenting it to any court and therefore there can be no objection to this court hearing the suit even assuming that on the date when it was presented the court had absolutely no jurisdiction to entertain the suit. Mr. There is no question here of returning the plaint and re-presenting it to any court and therefore there can be no objection to this court hearing the suit even assuming that on the date when it was presented the court had absolutely no jurisdiction to entertain the suit. Mr. Nambiar argues that even accepting the argument on behalf of the defendant that the plaint must be treated to have been filed for the first time on 26th January, 1950, when the restriction as to jurisdiction has been removed by the Constitution, the plaintiff would be entitled to rely on Section 14 of the Limitation Act and in view of the conduct of the defendant in not raising objection as to jurisdiction, there being no provision for return of the plaint and the question of jurisdiction not having been raised and decided, the plaintiffs must be deemed to be bona fide prosecuting the suit. Though the contention on behalf of the plaintiffs can be appreciated in view of the peculiar circumstances of the case, Section 14 in terms cannot however be made applicable. Even assuming that the court has no jurisdiction to entertain the suit, I do not think that the court is prevented, when once it acquires jurisdiction, to proceed with its trial, the plaint having been presented but not returned to enable the plaintiffs to seek the proper forum. This question does not however arise in view of my finding that there is no absolute want of jurisdiction in the High Court in respect of this suit and that it had jurisdiction to entertain the suit and the suit was properly entertained.Coming to the application of Section 226 of the Government of India Act to the facts of this case it has to be considered whether this is a suit concerning revenue, or concerning any act ordered or done in the collection thereof. The assessment for the year 1944-1945 was completed by the order of the Deputy Commercial Tax Officer dated 27th March, 1946, Ex. P-1. The amount of the tax was paid, but long thereafter, after issue of a notice to show cause why certain escaped turnover should not be assessed, the Commercial Tax Officer ordered that the plaintiffs would be liable to pay assessment on escaped turnover on Rs. P-1. The amount of the tax was paid, but long thereafter, after issue of a notice to show cause why certain escaped turnover should not be assessed, the Commercial Tax Officer ordered that the plaintiffs would be liable to pay assessment on escaped turnover on Rs. 30, 03, 650-12-6 and the Deputy Commercial Tax Officer was asked to issue a B notice demanding payment of this amount. Accordingly on 17th April, 1947, the Deputy Commercial Tax Officer issued a notice of demand in pursuance of which the amount was paid and the plaintiff seeks to recover the tax illegally levied and collected. In Governor-General in Council v. Raleigh Investment Co. Ltd. 1944 (1) MLJ 477 at 481), the question that arose for decision was about the ultra vires nature of a particular provision of the Income-tax Act which made the assessment illegal. It was held in that case that the dispute concerned revenue in its ordinary sense. In considering the effect of Spooner v. Juddow ((1846-50) 4 M.I.A. 353), Spens, C.J., observes :- "In Spooner v. Juddow ((1846-50) 4 M.I.A. 353), the Judicial Committee held that the section would apply to all cases in which 'parties bona fide and not absurdly believed that they are acting in pursuance of statutes and according to law'. This language will, in our opinion, apply as much to the Indian Legislature acting in the belief that its enactment is authorised by the Constitution Act as to a subordinate authority in India acting in the belief that his or its action is authorised by the Indian law. Section 226 is obviously not limited to steps taken in the collection of revenue. It equally applies to the demand or assessment. "It is true that in Spooner v. Juddow ((1846-50) 4 M.I.A. 353), no question was raised as to the legality of the revenue claim. But the principle enunciated by their Lordships is of general application............It might perhaps even be that if the assessment imposed on the plaintiff in this case could not bona fide have been regarded or spoken of as income-tax, the limitation imposed by their Lordships on the application of the section could be invoked. But the principle enunciated by their Lordships is of general application............It might perhaps even be that if the assessment imposed on the plaintiff in this case could not bona fide have been regarded or spoken of as income-tax, the limitation imposed by their Lordships on the application of the section could be invoked. The arguments in the case have certainly shown that the dispute between the parties as to the legality of the claim cannot be regarded as other than bona fide." * Though the learned Chief Justice finds that the dispute that arose in that case concerned revenue, the principle as to whether in that case the assessment made could bona fide have been regarded or spoken to as income-tax was considered applying the principles laid in Spooner v. Juddow ((1846-50) 4 M.I.A. 353) by Lord Campbell. In Governor-General in Council v. Shiromani Sugar Mills Ltd. 1946 (1) MLJ 415 their Lordships of the Federal Court raised two points for consideration, namely, (1) whether the High Court purported to exercise jurisdiction in a matter concerning the revenue or concerning any act ordered or done in the collection thereof; and (2) if so, whether the last words of the sub-section "according to the usage and practice of the country or the law for the time being in force" qualify "original jurisdiction in any matter concerning revenue" as well as "concerning any act ordered or done in the collection thereof." As regards the latter their Lordships were satisfied that grammatically the last words of the sub-section in question can only qualify the words immediately preceding "concerning any act done or ordered in the collection thereof". As regards the former it was observed as follows :-"There was much discussion before us in this case, as there had been in other cases, whether a matter concerning an act ordered or done in the collection of the revenue would not also be included in a matter concerning the revenue, or whether it would not be something additional to or different from a matter concerning the revenue. In Dewarkhand Cement Co. Ltd. v. Secretary of State (1939 1939 ILR(Bom) 320) the learned Judge (Rangnekar, J.) basing himself on an observation in the judgment delivered by Lord Phillimore in Alcock, Ashdown & Co. In Dewarkhand Cement Co. Ltd. v. Secretary of State (1939 1939 ILR(Bom) 320) the learned Judge (Rangnekar, J.) basing himself on an observation in the judgment delivered by Lord Phillimore in Alcock, Ashdown & Co. Ltd. v. Chief Revenue Authority, Bombay 1923 (45) MLJ 592; 50 I.A. 227), came to the conclusion that two different ideas are expressed in the respective parts of the section; the first refers to the preliminary proceedings taken for the purpose of determining the amount of the revenue in any case, and the second to the machinery to enforce payment of the revenue so determined. Another view suggested in the course of the hearing before us was that all claims directly in respect of revenue by or against the Crown would be matters concerning the revenue, whereas claims against individual officials in respects of acts ordered or done in the collection of the revenue might not be included in matters concerning the revenue and that accordingly the latter words had to be added for the protection of officials and to prevent indirect attacks upon the revenue. It is not, in our judgment, necessary to come to any final conclusion on these views. On the facts of this case, we are satisfied that by reason of the making out and forwarding to the Collector of a certificate in the form and manner prescribed by Section 46(2) of the Income-tax Act, thereby putting into operation the machinery of Section 46 for the collection of the arrears of income-tax in question as arrears of land revenue, an act was done in the collection of the revenue, and in granting the injunction in this case the High Court was exercising original jurisdiction in a matter concerning an act done in the collection of revenue."In a suit instituted for the recovery of an amount collected as revenue it is rather difficult to draw a line of distinction as to whether a particular claim for payment of the amount collected as revenue would come strictly within the matter concerning revenue or concerning an act ordered or done in its collection. It is obvious that a matter concerning an act ordered or done in the collection of revenue could be stated to be a matter concerning revenue. It is obvious that a matter concerning an act ordered or done in the collection of revenue could be stated to be a matter concerning revenue. It relates to revenue and one cannot see how if an order is made for the collection of the revenue it could be stated as not concerning revenue. The former is wider and the latter is restricted; but at the same time it cannot be said that in cases where assessment is made and is objected to as illegal and an assessment order directs the collection and notice is issued for such collection in pursuance of the order of assessment it cannot be said that it concerns only revenue and does not relate to an act which orders collection. Their Lordships of the Federal Court in Governor-General in Council v. Shiromani Sugar Mills Co. Ltd. 1946 (1) MLJ 415 ; have appreciated the difficulty of drawing a line between the first part and the second part of Section 226 of the Government of India Act and therefore left the matter without coming to any final conclusion. The matter is not easy to decide and lay down the class or classes of cases which could be said to concern revenue alone and which could be treated as acts ordered or done in its collection. In this case I am inclined to hold that by virtue of the assessment order of the Commercial Tax Officer, Ex. P-8, followed by the demand in form B of the Deputy Commercial Tax Officer, and in any event, the act of the Deputy Commercial Tax Officer is an act relating to the collection of revenue. In view of this finding it is necessary to consider whether the act ordering the collection of revenue has been bona fide and not absurd, to use the phraseology of Lord Campbell in Spooner v. Juddow ((1846-50) 4 M.I.A. 353). This phraseology used by Lord Campbell as the test for exercise of jurisdiction has been uniformly followed in all the subsequent decisions right up to the decision in Governor-General in Council v. Shiromani Sugar Mills Ltd. 1946 (1) MLJ 415 ; Coutts Trotter, J., in Best and Co. This phraseology used by Lord Campbell as the test for exercise of jurisdiction has been uniformly followed in all the subsequent decisions right up to the decision in Governor-General in Council v. Shiromani Sugar Mills Ltd. 1946 (1) MLJ 415 ; Coutts Trotter, J., in Best and Co. Ltd. v. Collector of Madras 1918 (35) MLJ 23 ) after quoting from Spooner v. Juddow ((1846-50) 4 M.I.A. 353) says that it was not suggested in that case that the Collector of Madras or the Secretary of State acted mala fide, or purported to seek the protection of the statute with the full knowledge that all that was being done was to commit a mere act of aggression.In this case I have already found that the assessment was illegal and ultra vires of the powers of the Commercial Tax Officer. But if the action of the Commercial Tax Officer is illegal and ultra vires that by itself would not amount to want of bona fides. But here the assessment has been made on escaped turnover after the period provided in the rules during which the authority could tax the escaped turnover. I have shown in my judgment how the Act and the rules prohibit the authorities from reopening the transactions more than two years old for the purpose of assessment. Finding that it is not possible to reopen the same by virtue of the express provisions relating to the taxing of escaped turnover, the Commercial Tax Officer tried to invoke the provisions of rule 14(2) and exercised his revisional jurisdiction which only empowered him to examine the record of any case at any time and proceed to assess the escaped turnover. It is a case of total absence of jurisdiction in the Commercial Tax Officer in proceeding with the assessment in this case. It appears to me that in assessing the escaped turnover the provisions of law have been circumvented and he assumed jurisdiction which was not vested in him and it cannot be said that he acted under any mistake, when it can be treated as a bona fide exercise of his power, nor can it be treated as an honest intention to act within his powers. If he had acted only in accordance with the statutory powers, then it may be stated that he was acting in good faith and bona fide but the statutory powers prevented him from reopening any assessment after a certain period and with that knowledge he acted. In such a case, could it be said that it is a bona fide act. With respect, I am unable to agree with Coutts Trotter, J., that it must be shown to be a mala fide act or aggressive act. Lord Campbell has not gone so far but stated "not bona fide and absurd". In the circumstances of this case where the authority has acted to get over the bar of time laid down under the express provisions of the rules, under which alone he could act, and invoked the support of a provision the effect of which would be to nullify the express provisions relevant to assessment, could it be said that the authority acted bona fide ? He acted with the full knowledge that he had no power to act. But it appears to me he was anxious at any cost not to allow the assessee to escape assessment and therefore invoked rule 14(2) which could have absolutely no application to the case. Mr. Nambiar for the plaintiffs states that the order of assessment and the collection based on a power alleged to have been conferred on the Commercial Tax Officer in rule 14(2) could even be called absurd and that he must be held to have acted absurdly. There is no doubt much to be said in favour of this argument since on an ordinary understanding of the Act and the rules and the relevant provisions relating to the assessment of escaped turnover it could not be said that the Commercial Tax Officer acted as a man of ordinary intelligence would after a reading of the rules governing this particular case. I am therefore of opinion that in any even the order of assessment and its collection could not be said to have been made according to the law for the time being in force.In the result, there will be a decree as prayed for and for costs against the defendant. Decree for the plaintiffs.