JUDGMENT G. K. MISHRA, C.J. - A notice (annexure A) dated 18th July, 1967, under sections 11(1) and 12(5) of the Orissa Sales Tax Act (Orissa Act 14 of 1947) (hereinafter to be referred to as the Act), was issued to the petitioner requiring him to submit within one calendar month from the date of receipt of the notice a return in form IV showing the particulars of his turnover for the quarters ending 31st March, 1965, to 31st December, 1965. He was also required to attend in person the office of the opposite party and produce the accounts and documents specified on the reverse of the notice. Without submitting a return the petitioner filed an objection petition (annexure B) on 3rd April, 1967, stating inter alia that he was not a dealer and that the purchase of rice by him was under the Orissa Rice Procurement (Levy) Order, 1964, (hereinafter referred to as the Order), and that there was no transaction of sale to make him liable to pay purchase tax. It was prayed that the notice calling for the returns might be withdrawn and cancelled. In reply, the opposite party wrote the letter (annexure C) on 4th August, 1967, which runs thus : "In the circumstances of the case, the proceedings for assessment initiated stand after due examination of the contentions raised. Please therefore produce the relevant accounts of procurement and disposal of rice during the period of December, 1964, to December, 1965, on 21st August, 1967, at 2 p.m. before the undersigned in his office at Balasore. The details of purchase price and costs should be furnished on the date of hearing besides the quantity procured (levy and levy fee) in each month from December, 1964, to December, 1965." The writ application was filed on 4th September, 1967, asking for an appropriate writ for quashing the notice (annexure A) and for directing the opposite party to refrain from proceeding further with the assessment. In the counter-affidavit the opposite party took his stand that the objections that there was no sale, no profit-motive in the transaction and that the petitioner was not a dealer can appropriately be gone into in the assessment proceeding itself where relevant facts would be examined and conclusion, one way or the other, would be reached and not in the writ application. During the course of argument the learned standing counsel brought to our notice information which the department had obtained that the petitioner had made purchases of the entire quantity of rice from various licensed millers and dealers. As the records were shown to us we called upon the learned standing counsel to file an affidavit to that effect. In paragraph 1 of the counter-affidavit filed by the opposite party on 17th March, 1971, the following averment was made : "That on careful enquiries and after going through the books of accounts of several dealers the Sales Tax Officer, Balasore Circle, came to know that almost all the dealers of that circle preferred to sell the total quantity of opening stock of rice as on 1st December, 1964, and the total quantity of the manufactured stock from time to time, although legally they were bound to sell only 50 per cent of the rice. The dealers, as the Sales Tax Officer came to understand, were disposing of the rice to the Central Government over and above the quantities under 'levy' owning to the fact that there was severe shortage of wagons for detpatch of rice to places outside Orissa and there was complete ban on the issue of licences for disposal of rice in West Bengal, a border State of Orissa." 2. The writ application is not maintainable on the short ground that the petitioner was bound to produce accounts in response to the letter (annexure C). When notice was issued under sections 11(1) and 12(5) of the Act, the presumption is that opposite party had materials in his possession on the basis of which the petitioner was called upon the file return and to produce accounts. There may be extreme cases in which writ applications may be entertained where prima facie the transaction effected by a party may not constitute a sale and the High Court may interfere to relieve the party from the onerous burden of going through the assessment proceeding where on the very face of it the transactions are not exigible to tax. But these constitute exceptional types of cases. Ordinarily a person on whom a notice is served is to produce his accounts and satisfy the assessing authority that the transactions are not taxable. A machinery has been provided under the Act as to how assessment is to be made initially. But these constitute exceptional types of cases. Ordinarily a person on whom a notice is served is to produce his accounts and satisfy the assessing authority that the transactions are not taxable. A machinery has been provided under the Act as to how assessment is to be made initially. At that stage the action of the assessing authority in issuing notice is not justiciable. The assessing authority has got the initial jurisdiction to determine whether it has the jurisdiction to assess. If objections are raised in response to the notice it is open to the assessing authority, after looking into the accounts and relevant materials on record, to come to the conclusion that the transactions are not exigible to tax. It need hardly be stated that the assessing authority would also keep the law and the authorities in view and it cannot be contended that it is the High Court alone which would respect law and not the taxing authorities. 3. In Cement Marketing Co. of India, Bangalore v. State of Mysore [[1971] 27 S.T.C. 159 (S.C.)], their Lordships observed thus : "The question whether the transactions with which we are concerned in these appeals are 'sales' is a mixed question of law and fact. Before that question can be decided, the fact-finding authorities under the Act should find out the various ingredients of the transactions and see whether they amount to 'sales'. Ordinarily the High Court does not go into questions of fact particularly when law prescribes a procedure for ascertaining those facts. The appellant was not justified in moving the High Court against the orders of the assessing authority. It should have gone up in appeal against those orders. It would have been proper if the High Court had refused to entertain the writ petitions." The question in that case was whether the supplies in question constituted "sales" on the basis of the Cement Control Order, 1956. Doubtless, in that case the writ application had been filed against the assessment order itself. But the position here is worse whether the petitioner has directly approached the High Court without furnishing returns and without producing the accounts as required. In the facts and circumstances of this case, the writ application is not maintainable and the petitioner must file return before the taxing authority and produce accounts as required. 4. But the position here is worse whether the petitioner has directly approached the High Court without furnishing returns and without producing the accounts as required. In the facts and circumstances of this case, the writ application is not maintainable and the petitioner must file return before the taxing authority and produce accounts as required. 4. In view of our conclusion that the writ application is not maintainable, we were at first not inclined to express our view on the question of law raised. But as the matter has come before us, we would clarify the legal position which would assist the taxing authority in making a valid assessment. 5. The petitioner's stand is based on the Orissa Rice Procurement (Levy) Order, 1964. Clause 3 (1) and (2) of the Order is extracted hereunder to fully appreciate the point : "3. Levy on rice. - (1) Every licensed miller shall sell to the purchase officer at the controlled price, - (a) at the commencement of this Order, 50 per cent of the quantity of rice held in stock by him at such commencement; and (b) beginning with such commencement and until such time as the purchase officer otherwise directs, 50 per cent of the total quantity of rice produced or manufactured by him in his rice mill every day. (2) Every licensed dealer shall sell to the purchase officer at the controlled price, - (a) at the commencement of this Order, 50 per cent of the quantity of rice held in stock by him at such commencement; and (b) beginning with such commencement and until such time as the purchase officer otherwise directs, - (i) 50 per cent of the total quantity of rice got milled by him every day out of his stock of paddy; and (ii) 50 per cent of the total quantity of rice purchased or otherwise acquired by him for the purpose of sale from persons other than licensed millers or licensed dealers." In respect of this 50 per cent, clause 3 sets up a machinery for compulsory acquisition of the stocks belonging to the licensed millers and dealers by the purchase officer. By virtue of clause 3 the purchase officer is not to enter into a formal contract for procuring the rice. The obligation to deliver 50 per cent of the rice is not by virtue of any contract but by virtue of the statutory order. By virtue of clause 3 the purchase officer is not to enter into a formal contract for procuring the rice. The obligation to deliver 50 per cent of the rice is not by virtue of any contract but by virtue of the statutory order. 6. All the relevant Supreme Court decisions were examined in Maheswar Mahapatro v. State of Orissa [[1972] 29 S.T.C. 52; (1971) 1 C.W.R. 261]. Therein we examined the concept of the word "sale" as defined in section 2(g) of the Act. In paragraph 9, we observed thus : "9. In this matter no hard and fast rule can be laid down. The ultimate conclusion would depend on the facts of each case. The ratio of all the aforesaid Supreme Court decisions is to the effect that where the transactions were completely regulated and controlled by the Controller leaving no room for mutual assent, the transaction would not be a sale. The area of bargaining between the prospective buyer and intending seller might be greatly reduced, but if there is scope for negotiation in respect of some matters, then the agreement is voluntary as in certain matters parties were left with the freedom to exercise their volition. Due to change in political outlook and as a result of economic compulsions the freedom to contract is being confined gradually to narrower limits. So long as mutual assent has not been completely excluded in any dealing, it is a contract in law and the transaction amounts to a sale." 7. Applying the aforesaid principle, purchase of 50 per cent by the purchase officer which by the definition in clause 2(c) includes the Deputy Director (Food) or any other officer appointed by the Central Government to exercise the powers of the purchase officer under this Order, is not exigible to tax. 8. The identical view was taken in Chittar Mal Narain Das v. Commissioner of Sales Tax [[1970] 26 S.T.C. 344 (S.C.); A.I.R. 1970 S.C. 2000], which is almost in the same terms as the Order. 9. We would now sum up our conclusions thus : (i) The petitioner would submit returns and produce accounts before the assessing authority and the impugned notice cannot be quashed in the writ application at this stage. (ii) When the case would go back, the assessing authority would look into the accounts and other materials on record. 9. We would now sum up our conclusions thus : (i) The petitioner would submit returns and produce accounts before the assessing authority and the impugned notice cannot be quashed in the writ application at this stage. (ii) When the case would go back, the assessing authority would look into the accounts and other materials on record. (iii) 50 per cent of the rice procured under the levy, which constituted compulsory acquisition, would not be exigible to tax. Purchases over and above the 50 per cent would be liable to pay purchase tax. 10. In the result, the writ application fails and is dismissed with costs. Hearing fee of Rs. 200. RAY, J. - I agree.