ORDER This petition under Article 226 of the Constitution is directed against an assessment order and a demand notice (annexures A and B) made by the Assistant Sales Tax Officer, Nagpur Circle, assessing the petitioner to sales tax on a sum aggregating to Rs. 35,008-14-0 and for writs quashing the same and directing the Assistant Sales Tax Officer to delete the said sum from the assessable quantum. 2. The facts of the case are simple. The petitioner runs a yarn shop and a dyeing factory under the name and style of Ramsaran Ramsahai at Nagpur. He is a registered dealer for the purposes of the Central Provinces and Berar Sales Tax Act, 1947. The petitioner submits that he carries on the business of purchasing and selling undyed yarn only. In his factory, however, the petitioner dyes yarn for his customs and for this purpose purchases dye-stuff, which he uses for this business. In the course of assessment proceedings pertaining to the period 10th November, 1950, to 30th October, 1951, (i.e., Diwali to Diwali) the petitioner was called upon to furnish the figures of the total purchase price of dyes and chemicals for use in his factory. The petitioner complied with the request and furnished the list of his purchases amounting in all to Rs. 35,008-14-0. The amount is not in dispute. 3. The Sales Tax Officer then by his order, now impugned, added this amount to the petitioner's turnover purporting to act under rule 20A of the Central Provinces and Berar Sales Tax Rules, 1947, and levied sales tax on that amount. The Sales Tax Officer also issued a demand notice calling upon the petitioner to pay a sum of Rs. 812-0-6 as tax thereon. The petitioner contends that these demands were illegal and that rule 20A is ultra vires of the State Government inasmuch as it runs beyond the charging section as well as the rule-making powers granted to the State Government by the Act. The petitioner further contends that the levy of the tax is tantamount to a tax on purchase when the intention of the Act is to levy a tax on sales. The petitioner contends that such a levy cannot be made in view of the clear provisions of Articles 265 of the Constitution, and that there being no equally efficacious remedy the present petition should be granted and an appropriate writ or writs be issued. The petitioner contends that such a levy cannot be made in view of the clear provisions of Articles 265 of the Constitution, and that there being no equally efficacious remedy the present petition should be granted and an appropriate writ or writs be issued. 4. On behalf of the sales tax authorities as well as the State of Madhya Pradesh the learned Government Advocate contended, as a preliminary objection, that the present petition was not competent in view of the fact that the Act provides adequate remedies, which have not been exhausted. As to this, it is sufficient to say as was done by the Division Bench in Miscellaneous Petition No. 279 of 1954 decided on 30th November, 1954 (Since reported as Pandit Banarsi Das v. State of Madhya Pradesh and Others [1955] 6 S.T.C. 93), that if any portion of the Act or the Rules be found to be illegal or ultra vires, a writ can issue prohibiting the authorities from utilizing the illegal provision against an assessee. The dispute here is really whether rule 20A is intra vires or not. If the rule be found to be defective and unenforceable there is no reason why a writ should no be issued on the analogy of the decision of their Lordships of the Supreme Court in Himmatlal v. State of Madhya Pradesh ([1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403). We therefore, do not think that there is any force in the preliminary objection raised. 5. The contention of the petitioners on the main case is that the dye-stuffs and chemicals purchased by him are not sold by him to the customers but that they are utilized for dyeing yarn brought by the customers, for which a price is charged without there being a separate price for the dye-stuffs. This argument is similar to the one repelled is Miscellaneous Petition No. 279 of 1954 (Since reported as Pandit Banarsi Das v. State of Madhya Pradesh and Others [1955] 6 S.T.C. 93). If the contract of dyeing yarn involves therein the transfer of property in dye-stuff and the price thereof is included in the price paid for the finished work there is no reason why the law cannot isolate the transaction of sale involved from other matters and tax it. Indeed, in view of the decision of the Division Bench this point was not very rule strongly pressed before us. Indeed, in view of the decision of the Division Bench this point was not very rule strongly pressed before us. 6. The fact, however, remains that rule 20A runs counter to the scheme of the Act. In the Act the tax is levied on the turnover, which is defined as the aggregate of the amounts of sale prices and parts of sale price received or receivable by a dealer in respect of the sale or supply of goods etc. "Sale price" is itself defined as "the amount payable be to a dealer a valuable consideration for - (1) the sale of any goods, less any sum allowed as cash discount ...................... in respect of the goods ..........." These definitions clearly indicate that the incidence of the tax in the charging section (section 4) is upon goods sold and the tax is collected from the seller on his turnover in the assessment period. When a registered dealers purchases goods from another dealer he is required to give declaration to obtain goods free of tax for himself. Thus, the present petitioner as registered dealer could obtain dyes and chemicals on a declaration being made that he needed them for his own consumption, without payment of sales tax. Rule 20A provides for the collection of the tax when the goods obtained under the declaration are not used for the purpose disclosed in the declaration. To that end the rule provides as follows :- "If a registered dealer who has purchased any goods after furnishing a declaration prescribed under sub-rule (2) of rule 26 from another registered dealer utilises such goods for purposes other than those mentioned in the declaration, he shall show the purchase price of such goods separately in the return in Form IV for the period during which he has so utilised the goods and pay the tax on such amount at the rates prescribed under sub-section (1) of section 5." 7. The argument is that the tax, if it could be recovered, ought to be recovered from the dealer who sold the dye-stuff and the chemicals in the first instance. To levy the tax from the second registered dealer amounts to levying a purchase tax, which because of the definitions contained in the Act read with the charging section is not warranted. This objection of the petitioner is correct. To levy the tax from the second registered dealer amounts to levying a purchase tax, which because of the definitions contained in the Act read with the charging section is not warranted. This objection of the petitioner is correct. To appreciate this it is necessary to examine a little more closely the scheme of section 4. That section describes the incidence of taxation and says that a dealer whose turnover during the year preceding the commencement of the Act exceeds the taxable quantum shall be liable to the tax as prescribed in the Act. The tax is therefore upon dealer whose turnover, that is to say, whose aggregate of the amounts of sale prices exceeds the taxable quantum. Now, the present petitioner may be assessed on his sales, including the sale of dye-stuff to such clients as employ him for piece-work; but he can only be assessed on the price of dye-stuff proved to have been sold to such customers, along with the labour of dyeing the yarn. If the tax has to be levied on the provision transaction viz., the transaction of the sale of chemicals and dye-stuffs to him, the assessment can only be made against and the first dealer and not the purchaser as section 4 at present stands. It is however contended for the State that it was open to Legislature to make the tax recoverable from the purchaser as a penalty for evasion and breach of the declaration made by him. But even if this could be done, it was necessary to enact the law in the Act and not in the Rules. Rules can only be framed in consonance with the Act, there being no legislative competence except that derived from the Act under which the Rules are made. To alter the incidence of the tax from the seller to purchaser was certainly not within the competence of the State Government under its rule-making powers. The tax could only be demanded from a seller under the scheme of the Act and not from a purchaser, and no rule can be made making liable the purchaser instead of seller, whatever the declaration of the purchaser. 8. In view of this we are of opinion that the rule is ultra vires the State Government and a writ of mandamus should go prohibiting the respondents from utilizing the rule to the detriment of the petitioner. 8. In view of this we are of opinion that the rule is ultra vires the State Government and a writ of mandamus should go prohibiting the respondents from utilizing the rule to the detriment of the petitioner. We note, however, that the Legislature perhaps viewed the matter in the same light, because rule 20A with slight modifications has how been enacted as a part of the Act. 9. The petition is allowed, a writ of mandamus absolute shall issue, and the petitioner shall be allowed his costs of the present petition. Counsel's fee Rs. 50. The petitioner shall be refunded the security deposit made by him. Petition allowed.