ORDER This is an application under Articles 226 and 227 of the Constitution praying that a writ in the nature of prohibition be issued to the Sales Tax Officer, Ghaziabad, prohibiting him from proceeding with future assessment proceedings, including that pertaining to the assessment year 1953-54 pending before him, except on the basis of the applicant's turnover of the assessment year, that a writ in the nature of certiorari be issued to the opposite parties calling for the record of the case and quashing the assessment orders pertaining to assessment years 1951-52 and 1952-53, the appellate order dated the 25th February, 1953, and the decision of the Sales Tax Officer contained in his post card, dated the 11th of August, 1953, and that a writ in the nature of mandamus be issued to the opposite parties directing them to refund the amount of tax illegally imposed. The applicant No. 1 is a joint stock company and owns three factories. Its accounting year starts from 1st November and ends on 31st October. When the U.P. Sales Tax Act came into force on the 1st of April, 1948, applicant No. 1 became liable to sales tax. Section 7(1) of the U.P. Sales Tax Act of 1948 prescribes the submission of a return of a dealer's turnover of the previous year within sixty days of the commencement of the assessment year in such form and verified in such manner as may be prescribed. Under the first proviso the State Government could prescribe that any dealer might submit in lieu of the return specified in the section, that is, in lieu of the return of his turnover of the previous year, a return of his turnover of the assessment year. Under the first proviso the State Government could prescribe that any dealer might submit in lieu of the return specified in the section, that is, in lieu of the return of his turnover of the previous year, a return of his turnover of the assessment year. According to Section 2, clause (j), sub-clause (ii), "'Previous year' means the twelve months ending on the 31st day of March next preceding the assessment year, or, if the accounts of a dealer have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March then, at the option of the dealer, the year ending on the day to which his accounts have so been made up" and the proviso to this definition of "previous year" takes away the discretion given to the dealer in fixing the previous year in case he had been once assessed to tax under the Act. He could exercise that option with the consent of the assessing authority and upon such conditions as the assessing authority may think fit. "Assessment year" means the twelve months ending on 31st March. The application submitted its return for the assessment years 1948-49 and 1949-50 on the basis of its turnover of the previous years, i.e., 1946-47 and 1947-48 respectively. In wanted to take advantage of the proviso to Section 7, sub-section (1), of the Sales Tax Act for the assessment year 1950-51 and applied to the Commissioner of Sales Tax for permission to change the basis of its assessment from previous year to that of assessment year. The Commissioner allowed its prayer on condition that if the tax due on a previous year's basis for the assessment year 1950-51 exceeded the tax on the basis of assessment year's sales the excess amount would be paid by the applicant company to the Government. The applicant made further representations to the Commissioner and to the Finance Secretary, Government of Uttar Pradesh, for the withdrawal of the condition imposed by the Commissioner. Those representations were unsuccessful. It then submitted a return on the basis of the previous year for the assessment year 1950-51. It makes no grievance with respect to this assessment in this application. The applicant made further representations to the Commissioner and to the Finance Secretary, Government of Uttar Pradesh, for the withdrawal of the condition imposed by the Commissioner. Those representations were unsuccessful. It then submitted a return on the basis of the previous year for the assessment year 1950-51. It makes no grievance with respect to this assessment in this application. Its prayer to pay tax on the basis of the assessment year in the years 1951-52 and 1952-53 was also unsuccessful and it was assessed on the basis of the previous year's turnover. It filed appeals under Section 9 of the Sales Tax Act against these assessments. Its appeal against the assessment for the year 1951-52 failed. It filed a revision before the Judge (Revisions). That revision is pending. Its appeal against the assessment for the year 1952-53 is pending before the Judge, Sales Tax. The assessment for the year 1953-54 is said to be in progress. The first contention on behalf of the applicant is that the so-called election by it when it submitted its first return for the the assessment year 1948-49 was not really an election because it had submitted the return on the basis of the turnover for the previous year as was laid down in Section 7, sub-section (1), of the Sales Tax Act and that the occasion for an election would arise only when it would like to submit the return not on the basis of the previous year but on the basis of the assessment year. We are not prima facie satisfied of the correctness of this contention. It is true that Section 7, sub-section (1), did not in express terms say that the dealer will have to make the choice of the basis for the return when he first submits his return but that seems to be clearly implied from the provisions of the sub-section. It enjoined the submission of a return on the basis of a turnover of the previous year but allowed an alternative, and it was that, in lieu of a return of the turnover for a previous year a return of the turnover of the assessment year could be submitted, if so prescribed by the State Government. This, to our mind, meant that it had to make a choice in the very first instance. This, to our mind, meant that it had to make a choice in the very first instance. The proviso does not say that the choice could be exercised at any subsequent stage. Rule 39, sub-rule (1), framed by the State Government provided that the election to submit returns of his turnover of the assessment year in lieu of the returns of the turnover of the previous year shall be signified in the return filed by the dealer in Form IV. That form has a provision for mentioning such election. The applicant did, it appears, intimate in its first return that it had elected to submit return of its turnover of the previous year ending on a certain date. Rule 40 provides that :- "Every dealer who elects to submit return of his previous year shall, within sixty days of the commencement of the assessment year, submit to the Sales Tax Officer a return in Form IV showing his turnover for the previous year." This makes it clear that the submission of a return of its previous year was a matter of election according to the rule-making power. We are, therefore, of opinion that it cannot be said that Section 7, sub-section (1), provided that the dealer can select the basis of his submitting the return at a stage subsequent to the first submission of the return. The next contention for the applicant is that if it was required to make an election in the first instance, sub-rule (2) of rule 39 is ultra vires of the State Government and that therefore the applicant is not barred from making a second election later. Sub-rule (2) is :- "A dealer who has once signified his election under sub-rule (1) shall not again exercise his option so as to vary the basis of assessment." The State Government is authorised under Section 24 to make rules to carry out the purposes of the Act. A provision like the one made in sub-rule (2) cannot be said to be beyond the rule-making power of the Government. Even if this sub-rule (2) be ultra vires of the Government, it would follow that sub-rule (1) will also be invalid as the two sub-rules should be deemed to be inseparable, it being difficult to say that the State Government would have made sub-rule (1) in the absence of sub-rule (2). Even if this sub-rule (2) be ultra vires of the Government, it would follow that sub-rule (1) will also be invalid as the two sub-rules should be deemed to be inseparable, it being difficult to say that the State Government would have made sub-rule (1) in the absence of sub-rule (2). If sub-rule (1) of rule 39 goes away, the applicant will have no right to submit a return on the basis of its turnover of the assessment year. In this view of the matter too the applicant cannot be held to be aggrieved with the assessment on the basis of the previous year. Lastly, even if sub-rule (1) be valid and sub-rule (2) be ultra vires of the State Government, the order of the assessment officer to assess the applicant on the basis of its turnover for the previous year under Section 7, sub-section (3), of the Act cannot be said to be an order beyond his jurisdiction and therefore no writ in the nature of certiorari or of prohibition can be issued against him. Section 7(3) is :- "If no return is submitted by the dealer under sub-section (1) within the period prescribed in that behalf or, if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such inquiry as he considers necessary, determine the turnover for the dealer for the previous year to the best of his judgment and assess the tax on the basis thereof : ......................................................" The Sales Tax Officer is authorised to determine the turnover of the dealer for the previous year to the best of his judgment and assess the tax on the basis thereof in three circumstances : firstly, when the dealer does not submit any return under sub-section (1) within the period prescribed; secondly, when the return submitted appears to be incorrect; and thirdly, when the return submitted appears to be incomplete. It is, therefore, within the jurisdiction of the assessing authority to determine whether any return as contemplated by sub-section (1) had been submitted to him or not and that, if any such return had been submitted, whether it is correct or complete. It is, therefore, within the jurisdiction of the assessing authority to determine whether any return as contemplated by sub-section (1) had been submitted to him or not and that, if any such return had been submitted, whether it is correct or complete. The assessing authority did not consider in view of the interpretation that he put on the provisions of sub-section (1) and of the rules that the return submitted by the application on the basis of the turnover of the assessment year was incorrect. He had jurisdiction to decide wrongly. His jurisdiction to assess under Section 7(3) is not dependent on certain conditions precedent but is dependent on his own finding whether a proper return had been submitted or not. He had jurisdiction to decide whether such a proper return had been submitted. It is not necessary to deal with the various cases referred to by the learned counsel for the applicant. Reference may be made to the case reported in Ebrahim Aboobaker v. Custodian General of Evacuee Property ([1952] S.C.R. 696), which shows that a Tribunal can have under the statute jurisdiction to decide the existence of the preliminary facts on which the further exercise of jurisdiction depends. It depends on the power given to the Court under a statute, which would determine whether its decision with respect to the existence of preliminary facts is a decision within its jurisdiction or is a decision of a point whose decision in a certain way will give jurisdiction to proceed further with the matter. If it is of the latter kind the decision would be on a question of fact or law having a bearing on jurisdiction; but if it is of the former kind then the further jurisdiction to proceed in the matter is not dependent on the decision of the first question with respect to the existence of certain facts. In view of the above we are of opinion that no prima facie case is made out for the issue of the writs prayed for in this application. We therefore reject it. Application rejected.