Judgment 1. IN this rule the petitioner has challenged the order made under section 16 (2) of the Bihar Sales tax Act 1959, by Mr. A. Hasnat, Assistant Superintendent of Commercial taxes, Central Circle, Bihar, Calcutta, on 22nd December, 1970. 2. THE petitioner, Grand Smithy works, (hereinafter referred to as the, said petitioner), at all material times carried on and still carries on business, inter alia, as a dealer in iron and steel scrap in Calcutta as well as outside India, as exporter thereof and as a dealer under the Bihar Sales Tax Act, 1959 (hereinafter referred to as the said Act. As such dealer, the said petitioner, as alleged, is empowered and authorised under the said Act and the rules framed there under (here in after referred to as the said Rules), to purchase goods in Bihar for resale in Bihar and/or in the course of Inter-State trade or Commerce and)or export outside India. The said petitioner has alleged that during the relevant period viz., for the period of assessment, which is 1967-68, the year of assessment being 1970-71, had entered into an agreement for procurement of materials as referred to hereinbefore in the course of its business, from Messrs tata Engineering and Locomotive Company Limited of Jamshedpur, for transport of them to Calcutta for the express purpose of its business of export out of India. It has also been alleged that the agreement in question with tata Engineering and Locomotive Company Limited at Jamshedpur, was made in the course of the aforesaid purpose of 'export out of India. It has further been alleged by the said petitioner that pursuant to such agreement of purchase for export out of India, it admittedly transported or caused to be transported, a large quantity of those materials from Jamshedpur to Calcutta tinder due and necessary permits issued from the office of the Assistant Superintendent of Commercial Taxes. Respondent No. 2 and in fact bulk of the said materials have been exported inter alia to Japan. The said petitioner has contended that a part of the materials so exported, were pressed and or crushed at Calcutta for facilitating packing for the said purpose of export. Respondent No. 2 and in fact bulk of the said materials have been exported inter alia to Japan. The said petitioner has contended that a part of the materials so exported, were pressed and or crushed at Calcutta for facilitating packing for the said purpose of export. It appears that the said petitioner duly submitted four quarterly returns under the said Act, to the Assistant superintendent of Commercial Taxes, for the relevant period of assessment of 1967-68 and the said respondent made the impugned consolidated order of assessment on 22nd December, 1970 in respect of the said assessment and relative notice of demand for a sum of Rs.9,029. 82 P., which is relevant for the period relating to this petition, was sent to it. 3. AT the time when this Rule was issued on 25th February, 1971, it appears that the said petitioner had impleaded the Assistant Superintendent of Commercial Taxes, being Respondent No. 3, by name. I have purposefully mentioned the aforesaid fact, as objections on the ground of mis-joinder of necessary parties, which are noted hereunder and are raised by Mr. Bagchi, appearing for the respondent, would have to be decided, as a preliminary objection. When this matter was first taken up for hearing on 9th December, 1975, Mr. Bagchi, appearing for the respondents took a preliminary point that respondent No. 3 i. e., Mr. A. Hasnat, Assistant Superintendent of Commercial Taxes, who incidentally is in charge of the Central circle, Bihar at Calcutta, has been transferred and as such the Rule as issued, would not be maintainable unless the proper parties are brought on the record. On that date, Mr. Choudhury took time to consider the position, as to whether in view of the manner in which the said respondent No. 3 has been impleaded, an application for addition of parties or for amendment, would have to be made. Thereafter, when this matter was taken up for hearing on 9th December, 1975, Mr. Choudhury appearing for the said petitioner, made it clear that he would proceed with the matter without having the cause title amended or having brought the present incumbent in place of Mr. A. Hasnat, on record. The relevant arguments of parties on this point would be noted and considered hereinafter. On 19th December, 1975 also, Mr. Choudhury appearing for the said petitioner, made it clear that he would proceed with the matter without having the cause title amended or having brought the present incumbent in place of Mr. A. Hasnat, on record. The relevant arguments of parties on this point would be noted and considered hereinafter. On 19th December, 1975 also, Mr. Bagchi, appearing for the said Respondents, took another preliminary point to the effect that the post of Assistant Superintendent of Commercial Taxes, Inc charge, Central Circle, Bihar, has been abolished about a year ago and the said post has been re-designated as Assistant Commissioner of Commercial Taxes. He has submitted that in the absence of the said office or the relevant holder of the said office, the rule would be not maintainable. On such objection being taken, further time was taken by Mr. Choudhury, for the purpose of considering the position and on 19th January 1976, when the matter was taken up for hearing again, he made it clear that he would continue with the hearing without impleading the holder of the said re-designated post of Assistant Commissioner of Commercial Taxes. 4. BEFORE I consider the case on merits, I think 1 should dispose of the preliminary points as mentioned herein before and as taken by Mr. Bagchi first, as I feel that any determination made in favour of Mr. Bagchi contentions, would not require the Court to enter in the merits of the case or facts and such facts would be required to be determined or this Court can go into the; merits of the contentions of the parties, only when the answer to Mr. Bagchi objections are in the negative. Mr. Choudhury, in support of his contentions and against the said preliminary objections of Mr. Bagchi, has contended that since the Rule in the instant case is a Rule for Certiorari and Prohibition and not only for a writ of Mandamus and a writ in the nature thereof and in fact the question in the instant case, as raised by the said petitioner, is a question relating to the total absence of jurisdiction, so the preliminary objections, as mentioned hereinbefore, should be decided in favour of the said petitioner and against the respondents. In support of is contentions, Mr. In support of is contentions, Mr. Choudhury first relied on the case of Makhan Lal Chakraborty v. S. K. Chatterjee and Ors., reported in A. I. R. 1954 Calcutta 208. In that case a Rule was obtained against the Secretary of the Board of Secondary Education and it was contended by the respondents that the party really interested was the Board of Secondary Education and as such the petition could not proceed in its absence and in view of the authorities as cited in the said judgment, it has been found that the position in such a case would be as under : "(1) In an application under article 226 of the Constitution, all persons must be made parties, who are or are likely to be affected by the issue of a writ or order. In the case of mandamus or prohibition all parties must necessarily be before the Court who are required to obey the directions of the writ, or whose presence is necessary to make such directions effective. (2) The artificial rules under the English practice, where in certain cases such writs can be made expiate in the first instance, do not prevail in our Courts. (3) Any party likely to be affected by a writ or order, may appear at the hearing (or make a prior application), and ask for leave to join the proceedings, or to have the rule served upon it. (4) The Court may order that a petition used as grounds for the issue of a rule nisi be amended, by the addition of parties. (5) If a necessary party or a party likely to be affected by the writ or order, or a party whose presence may be necessary to make the writ effective is not before the court, the Court may, either upon an application made for that purpose, or of its own motion direct that such a party be added and the rule nisi served upon him, or even that he may be allowed to be present at the hearing without being served with a rule nisi. In such a case the person served with the rule nisi or permitted to attend the hearing, would be deemed to be a party and he entitled to show cause or support or oppose a cause already shown. In such a case the person served with the rule nisi or permitted to attend the hearing, would be deemed to be a party and he entitled to show cause or support or oppose a cause already shown. (6) Such amendments should ordinarily be done upon notice to the party proposed to be added or served. There is however no rule of law which prevents an export order being made in a suitable case. (7) Upon such an amendment being effected, directions should be given for the use of affidavits and/or additional affidavits. " Relying on that case, Mr. Choudhury submitted that when the State of Bihar, which is really the interested party in the proceeding, has been duly impleaded, so no other party, as has been argued by Mr. Bagchi, is required to be brought on the record, as respondents. Apart from this, Mr. Choudhury placed reliance in the case of Suresh Chandra Ganguly v. J. W. Orr, reported in A. I. R. 1955 Calcutta 534. In that case, in which a writ of Mandamus was asked for, the officer concerned was impleaded by name and during the pendency of the proceeding, he was transferred and it has been observed that the High Court cannot issue a writ which is bound to be anfractuous. Where, therefore, a petition for a writ of Mandamus is made against a certain Government official in his personal name and he ceases to hold that office by reason of his transfer, no effective order can be passed against him and hence the proceeding must be dismissed as anfractuous. It has also been held that on general principles, it is not possible to substitute the official, who succeeds to the post as respondent in his place. It has also been held that as transfers of Government officers are ordinary instances of their service, a petitioner for a writ, should implead a public officer by the designation of his office, instead of individually and should strengthen his position further and ensure himself against the subsequent defects in the constitution of the proceeding by impleading the relevant State as party. These apart, Mr. Choudhury, in support of his contentions, also relied on in the case of Farquharson v. Morgan, reported in (1894) 1 Q. B. 552. These apart, Mr. Choudhury, in support of his contentions, also relied on in the case of Farquharson v. Morgan, reported in (1894) 1 Q. B. 552. In that case it has been held that when total absence of jurisdiction appears on the face of the proceedings in an inferior court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior court. Mr. Choudhury also relied on the case of Harivishnu Kamath v. Ahmad Ishaque and Ors., A.I.R. 1955 S.C. 233, wherein it has been held that the high Courts have power under Article 226 to issue writ of Certiorari for quashing the decisions of Election Tribunals, notwithstanding that they become 'functus officio' after pronouncing the decisions. The writ of Certiorari for quashing, is directed against a record, and as a record can be brought up only through human agency, it is issued to the person or authority whose decision is to be reviewed. As, it is the record of the decision that has to be removed by Certiorari, the fact that the tribunal has become 'functus officio', subsequent to the decision, can have no effect on the jurisdiction of the court to remove the record. The true import of the language of Article 226 does not support the argument that the wording of Article 226 that the High Court shall have the power to issue writs or directions to any person or authority within its territorial jurisdiction posits that there exists a person or authority to whom it could be issued, and that in consequence, they cannot be issued where no such authority exists. The scope of article 226 is firstly that it confers on the High Courts power to issue writs and directions, and secondly, it defines the limits of that power. This latter it; does by enacting that it can be exercised over any person or authority with in the territories in relation to which it exercises its jurisdiction. The emphasis is on the words "within the territory" and their significance is that the jurisdiction to issue writ is co-extensive with the territorial jurisdiction of the Court. The reference is not to the nature and composition of the Court or Tribunal but to the area within which the power could be exercised. Apart from the cases as mentioned above Mr. The reference is not to the nature and composition of the Court or Tribunal but to the area within which the power could be exercised. Apart from the cases as mentioned above Mr. Choudhury further relied on the case of Wazir Chand and Anr, v. The Stare of himachal Pradesh, A. I. R. 1954 S. C. 415 in support of his argument, that if the order, on the face of it, is irregular and without jurisdiction or void abinitio, then, as in the instant case, in the presences of the Government of Bihar and in the absence of its other officers or offices, the application would not tail, but the same would be maintainable and can be entertained. 5. ON consideration of the pleadings and also after considering the determination as mentioned hereinbefore, it appears to me that the arguments as advanced by Mr. Choudhury in the facts and circumstances of this case, are sound. Since the State of Bihar, which is really the interested party, has been duly impleaded, so in view of the prayers in the petition, which incidentally are for a writ of Certiorari and Prohibition and not for a writ of mandamas only, I am of the view that the proceedings in this case may continue even in the absence of the said Mr. A. Hasnat or without impleading either his successor or the subsequent office of Assistant Commissioner of commercial Taxes. Thus the preliminary objections as raised by Mr. Bagchi are disposed of by answering them in the negative and in favour of the said petitioner. 6. ON merits Mr. Choudhury first placed the provisions of section 3 of the central Sales Tax Act, 1956 which is to the following effect : section 3 : A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one State to another ; or (b) is effected by a transfer of documents of title to the goods during their movement from one state to another. Explanation 1.-Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee. Explanation 1.-Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee. Explanation 2.-Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State and then to the provisions of section 4 of the said Act, which deals with exemption and is in the following terms : Section-4: (1) No tax shall be payable under this Act on sales or purchases of goods which have taken place-(a) in the course of Inter-State trade or commerce ; (b) outside the State ; (c) in the course of import of goods into, or export of the goods out of the territory of India. (2) The provisions of the Central sales Tax Act, 1956 (LXXXIV of 1956)shall apply for determining when a sale or purchase of goods shall be deemed to have taken place in any of the ways mentioned in clause (a), (b) or (c) of sub-section (1). (3) The State Government may, by notification and subject to such conditions or restrictions as it may impose, exempt from the levy of the general sales tax or special sales tax or both or the levy of purchase tax- (a) sales of any goods or class or description of goods; (b) sales of any goods or class or description of goods to or by any class or dealers; (c) any sale or category or description of sales ; and (d) purchase of any goods declared under section 3a by any class of dealers or any purchase or category or description of purchase of such goods. (4) Where exemption from the levy of tax under this Act on any sale or purchase of goods is claimed by a dealer under the provisions of this section or sub-clauses (2) or (3)or section 7, the burden of proof shall lie on such dealer and the prescribed authority may require the dealer to substantiate the claim in the prescribed manner. " and contended that in view of the admitted facts of the case, which are stated hereinbefore and the provisions of the respective Acts as mentioned above, the provisions of the said Act are not applicable, to the transactions of sale for the purpose of export as between the said petitioner and the Tata engineering and Locomotive Co. Ltd., and in view of the provisions in Article 28g (1) of the Constitution, such transitions are not also liable to be charged to Sales Tax and the more so when such transactions should be deemed to have been made in course of interstate trade or commerce or in the nature thereof. Mr. Chowdhury further argued that the definite findings in the impugned order to the effect that on verification of the books of accounts and the purchase statement it was found that the dealer was engaged in purchasing iron and steel scrap materials in Bihar, mainly for the purpose of exports outside India to Japan and the dealers' Head Office at Calcutta, which is separately registered in Bengal, were also purchasing iron and steel scrap from M/s. Tisco and Telco in Bihar in the course of inter-State trade or commerce, on payment of Central sales Tax at the full rate of 3%, as applicable on declared goods and from the Indian Iron and Steel Co. Ltd., Burnpur, mainly for the same purpose of export to Japan, do also take the transactions in the instant case outside the purview of the said Act. Apart from the arguments as noted hereinbefore, Mr. Chowdhury also relied on section 8 of the said Act which is to the following effect: section--8 : Taxing authorities and inspectors- (1) There shall be the following classes of authorities, to be appointed by the State Government, for carrying out the purposes of this Aft, namely- (a) Commissioner of Commercial taxes: (b) Deputy Commissioner of Commercial Taxes; (c) Appellate Assistant Commissioner of Commercial Taxes; (d) Assistant Commissioner of commercial Taxes; (e) Superintendent of Commercial Taxes; (f) Assistant Superintendent of commercial Taxes. (2)The authorities appointed under sub-section (1) shall within such areas as the State Government may by notification specify, exercise such powers as may be conferred and perform such duties as may be imposed, by or under this Act. (2)The authorities appointed under sub-section (1) shall within such areas as the State Government may by notification specify, exercise such powers as may be conferred and perform such duties as may be imposed, by or under this Act. (3) The Commissioner may appoint, such, number of Inspectors of Commercial Taxes as may be necessary to assist any of the authorities appointed under sub-section (1) ; and the Inspectors so appointed shall within such areas ; exercise powers under sub-sections (1) and (2) of section 37 and perform such other functions in the execution of this Act in those areas, as may he prescribed or as the Commissioner may, by general or special order, assign to them ; such assignment may be subject to such conditions and restrictions; as may be specified in the order. (4) All persons appointed under subsection (1) or sub-section (2) shall be deemed to be public servants within the meaning of section 21 of the Indian penal Code " 1860 (XLV of 1860. (5) The Commissioner may, at any stage, direct transfer of a proceeding under section 16 or 18 in respect of any dealer from the prescribed authority to another authority of the same or higher rank appointed under sub-section (1). Where such direction is given by the Commissioner the authority to whom proceeding is transferred shall proceed to dispose it of as it had been initiated by the said authority irrespective the local limits of its jurisdiction ; such transfer shall not render necessary the re-issue of any notice already issued before the transfer and the authority to whom the proceeding, is transferred may, in its discretion, continue it from the stage at which it was left by the authority from whom it was transferred and also to notification No. STGL AR106/59-9148-FT. dated 1st July 1959 which is to the following effect "in exercise of the powers conferred by sub-sections (1)and (2) of section 8 of the Bihar Sales tax Act, 1959 (Bihar Act XIX of 1959), the Governor of Bihar is pleased to appoint the authorities specified the second column of the table hereto annexed to exercise and perform the powers and duties respectively conferred and imposed upon such authorities by or under the said Act, within the local limits of the areas mentioned in the corresponding entry in the third column of the said Table. SI. SI. No. Designation of authorities Areas within which powers and duties are to be exercised and performed 65. Assistant Supdt. of Commercial Taxes, Central Circle, Bihar. The whole of the State of Bihar and contended that on the basis of the said section, rules and the notification as referred to above, the impugned order of assessment could not have been made outside the State of Bihar and as such the order of assessment is invalid in law, as the same has admittedly been made at Calcutta. In support of his contention, Mr. Chowdhury placed reliance on an unreported decision of ibis court dated 14th February 1974, made in the case of Sunil Kumar Roy v. The assistant Superintendent of Sales Tax, central Circle, Bihar and Anr. (Matter no. 260 of 1970), by Masud, J. In that case the petitioner : "Sunil Kr. Roy was carrying on business under the name any style of Bhowra Coke Co. as the sole proprietor thereof at the material, time although his factory, plant; and works were all situate at Bhowra in the district of dhanbad in Bihar. The office of the said company is at 3b, Garstin Place, Calcutta. The order of assessment related to the assessment year 1966-67. In respect of the petitioner's business under the Central Sales tax Act, 1956 after hearing the party, the said officer passed the order of assessment on December 15, 1957. On December 23, 1967 by a notice of demand he asked the petitioner to pay a sum of Rs.78178.40 on account of the Central sales Tax payable by the said petitioner for the said period and a further sum of Rs.6400.00 as penalty under the said Act. By an order dated January 10, 1968 the said respondent informed the petitioner that there were some mistakes in the calculation and the corrected amount would amount to Rs.70766.78 and a penalty of Rs.6400.00. Fresh notice of demand was issued on March 26, 1970 and the petitioner thereafter moved the petition on June 1, 1970. " It may be mentioned that is that case, after construing the relevant provisions as mentioned hereinbefore, this Court has been pleased to make the said Rule absolute by quashing the relevant orders of assessment and. notice of demands with liberty to the respondents to make a fresh order of assessment in accordance with law. " It may be mentioned that is that case, after construing the relevant provisions as mentioned hereinbefore, this Court has been pleased to make the said Rule absolute by quashing the relevant orders of assessment and. notice of demands with liberty to the respondents to make a fresh order of assessment in accordance with law. It may further be mentioned that the point of jurisdiction, as indicated above, has not been specifically taken in this petition. But since the same is a jurisdictional point and would strike at the root of the matter and that too in view of the determination of Masud, j., made in a practically similar matter and the more so when the said judgment, as a Judge of the co-ordinate jurisdiction, is binding on me, was allowed to be argued. After considering the submissions as made and in respectful agreement with the determinations as made in the said unreported judgment of Masud, j., in Matter No. 260 of 1970 Sunil Kumar Roy v. The Assistant superintendent of Sales Tax, Central Circle, Bihar and Am., I find that this Rule is bound to succeed on the said limited ground of jurisdictional error and as such the same should be made absolute on that limited ground and that too even without going into the merits of the other contentions of the parties and i direct accordingly. 7. THE Rule is thus made absolute on the limited ground of jurisdiction as indicated above and as such the impugned order is set aside by a writ of Certiorari. This will not however preclude or prejudice the Respondents from making a fresh order of assessment in accordance with law. There will however be no order for costs. 8. ALTHOUGH, I have made the above order, I think the other arguments as made by Mr. Bagchi should also be indicated. In reply to the arguments as advanced by Mr. Chowdhury on merits, Mr. Bagchi, appearing for the Respondents, after placing the impugned order and section 4 of the said Act, specially sub-sections (a) and (b) of section 4 and section 4 (4), contended that the burden of proof in the instant case, that tax was not leviable on the goods or transactions in question lay on the said petitioner and admittedly that onus has not been duly discharged. He also submitted, after placing the pleadings and the findings in the impugned order that the goods were admittedly purchased prior to the relevant agreement with the foreign buyer and the said petitioner has failed to discharge the obligation cast on it to export the goods and as such also the submission on behalf of the said petitioner, would not be available. In support of his contentions that obligation in the instant case and/or in a case like this, was on the dealer, Mr. Bagchi relied on the case of Shankerji Raut, gopalji Raut v. State of Bihar, A. I. R. 1968 Patna 329. In that case it has been held that in the absence of evidence to show that there was any obligation cast on the asses see to export the goods, the goods the sale could not be covered by Article 286 (1) (b. Apart from those submissions, Mr. Bagchi further submitted that the said act is a complete Code by itself and the same affords other alternative and adequate remedies by way of appeal and the said petitioner having admittedly failed to avail of such remedies, is not entitled to maintain the petition. Such argument, is of course supported by the determination of the Supreme court in the case of C. A. Abraham, v. Income Tax Officer, Kottayam and Anr. A. I. R. 1961 S. C. 609 and would have been available, if the determination in the instant case was made in proper use and exercise of jurisdiction. Since the determination in this case has been made without jurisdiction, the findings in the case of C. A. Abraham v. Income tax Officer, Kottayam and Anr. (supra)as referred to above would have no application in the instant case. Civil Rule No. 554 (W) of 1971 Since the facts in this Rule., which is for the assessment year 1970-71, are the same as in Civil Rule: no. 556 (W) of 1971, the determinations made in that case would be applicable and as such similar order making the rule absolute as in the said Civil Rule no. 556 (W) of 1971, is also passed., there will also be no order for costs in this Rule. In view of the order I have made, the security, which has been furnished be the petitioner, in terms of the Courts earlier order should be released. 556 (W) of 1971, is also passed., there will also be no order for costs in this Rule. In view of the order I have made, the security, which has been furnished be the petitioner, in terms of the Courts earlier order should be released. The petitioner may withdraw such security alter four months. Rule made absolute.