Order This Rule concerns assessment of the firm M/s. G.S. Brothers, a partnership firm having its registered office at 226, Rash Behari Avenue, Calcutta-19 with regard to the period of 4 quarters ending December 1965, 4 quarters ending December, 1966, 4 quarters ending December 1967 and 4 quarters ending December 1969 under the provisions of West Bengal Finance (Sales Tax) Act, 1941. The problem in issue stems from the submissions of revised returns by the petitioner in respect of sales tax for the aforesaid periods. The petitioner's case is that it had erroneously submitted returns showing amounts received on account of hire-purchase agreement as amounts of sale and had paid sales tax in advance on the basis of such hire-purchase agreements, although such, agreements did not mature as sales. As the petitioners had paid the sales tax by mistake in respect of the hire-purchase agreements it sought to recover the same but did not succeed. 2. The petitioner deals in various types of Radios, Radiograms, Fans, Refrigerators, Records, Record-players and Electrical appliances. It enters into hire-purchase agreements with several parties with intention to sell the articles according to the terms and conditions of the agreement. The agreement, of which specimen copies are annexed to the petition, reveals that the hirer is to pay a stipulated sum on the execution of the agreement as an initial sum by way of hire after which the hirer is to pay a stipulated sum by way of rent as per schedule of the agreements at the end of which on payment of Re. 1/- the transaction ripened into a sale and the subject, of hire became the property of the hirer. No sale is effected until an option is exercised by the hirer and the terms of the agreement is fulfilled. In respect of the assessment for the 4 quarters ending December, 1965 for which the petitioner filed quarterly returns within time a notice was issued in form VI under Ss. 11 and 14(1) of the West Bengal Finance (Sales Tax) Act directing the petitioner to produce relevant accounts and documents. By a letter dated 23rd July 1969 the petitioner, inter alia, pointed out mistakes in having submitted the returns showing amounts on account of hire-purchase agreement as amounts of sale. 11 and 14(1) of the West Bengal Finance (Sales Tax) Act directing the petitioner to produce relevant accounts and documents. By a letter dated 23rd July 1969 the petitioner, inter alia, pointed out mistakes in having submitted the returns showing amounts on account of hire-purchase agreement as amounts of sale. It is alleged in the petition that on the 25th of July, 1969 the Commercial Tax Officer declined to decide the question of liability to hire-purchase transactions and threatened the petitioner by saying that if the petitioner agitated and pressed the question the issue of declaration forms would be stopped to the petitioner. The said Commercial Tax Officer, one S.K. Chakraborty who is respondent No. 1 made assessment determining the gross turnover at Rs.12,11,630.61 and the taxable turnover was estimated at Rs.11,02,718.46. On the 25th July, 1969 the petitioner made an appeal before the Assistant Commissioner which was allowed on the 18th of February, 1970 by setting aside the assessment and directing the Commercial Tax Officer to make fresh assessment after affording opportunity to the petitioner of being heard. 3. Meanwhile, with regard to the 4 quarters ending December, 1966, the petitioner had similarly, by a letter dated 17th of December, 1969 filed a revised return and claimed depreciated value of articles lent on hire-purchase at 50% and another return was filed before the regular assessment was made. It is alleged that at the time of assessment the same Commercial Tax Officer was shown the order of the Assistant Commissioner setting aside the earlier assessment but no heed was paid to the same. While seemingly professing not to tax hire-purchase transaction on the ground that the dealer did not produce a statement of such transactions, even though registers and other books were before him, the officer, according to the petitioner, arbitrarily made similar assessment as in the previous case. On appeal the Assistant Commissioner by a letter dated 2nd of December, 1971 set aside the appeal and remanded the case once again to the Commercial Tax Officer with a direction to pass fresh orders In accordance with law. Both the Appellate authorities accepted the principle that hire-purchase transactions were not liable to sales-tax and orders of remand were passed on the aforesaid principle directing the Commercial Tax Officer to scrutinise the matter and decide accordingly. 4. Both the Appellate authorities accepted the principle that hire-purchase transactions were not liable to sales-tax and orders of remand were passed on the aforesaid principle directing the Commercial Tax Officer to scrutinise the matter and decide accordingly. 4. With respect to the assessment for 4 quarters ending December, 1967 on a similar fashion the petitioner by a letter dated 30th of December, 1970 contended that it was not liable to the levy of sales tax on hire-purchase transactions and filed revised return on the 16th of January, 1971 along with said letter. The hearing of the matter concluded on the 18th of September, 1971 but later on 1st of November, 1971 the Commercial Tax Officer Mr. S. Chakraborty held that the hire-purchase transactions were sham dealing. Against the said order once again an appeal was preferred. But this time the Assistant Commissioner of Commercial Taxes confirmed the assessment by an order dated 2nd of May, 1973. It is alleged by the petitioner that the Assistant Commissioner of Commercial Taxes, South Circle, expressed an opinion saying that he was not interested in hearing legal arguments and that he was interested only in realisation of taxes. A revision application against the order of the Assistant Commissioner of Commercial Taxes dated 2nd of May, 1973 was filed under S. 20(3) of the Act and the same is pending for final disposal. 5. Mr. Bhattacharjee, learned Advocate appearing in support of the Rule mainly challenged the assessment and/or the notice for the same mainly on two grounds one illegality and the other mala fide. The basis of Mr. Bhattacharjee's argument was the decision of the Supreme Court in the case of K.L. Johar & Co. v. Deputy Commercial Tax Officer, reported in AIR 1965 SC 1082 . The Supreme Court analysed the nature of the hire-purchase agreement which is distinct from a sale in which the price is to be paid later by instalments. In the case of a sale in which price is to be paid by instalments, the property passes as soon as the sale is made, even though the price has not been fully paid and may later be paid in instalment. The essence of a sale is that a property is transferred from the seller to the buyer for a price, whether paid at once or paid later in an instalments. The essence of a sale is that a property is transferred from the seller to the buyer for a price, whether paid at once or paid later in an instalments. On the other hand, the hire-purchase agreement has two elements: (1) element of balement and (2) element of sale in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreements. When all the terms of the agreement are satisfied and the option is exercised a sale, takes place of the goods which still then had been on hire. As the taxable event is the sale of goods the tax can only be levied when the option is exercised after fulfilling all the terms of the hire purchase agreement. The Supreme Court held that even though eventually most goods of hire-purchase may result in sales by the exercise of the option and the fulfilment of the terms of the agreement, tax is not exigible at the time when the hire-purchase agreement is made, for at that time the taxable event has not taken place. It can only be exigible when the option has been exercised and all the terms of the agreement fulfilled and the sale actually takes place. When the sale takes place in a particular case will depend upon the terms of the hire-purchase agreement, there can be no liability to sales tax till the sale takes place. It will be of interest to note that the material terms of the agreements of hire-purchase considered in that case were more or less the same as the ones in this case. Of course, in that case it was the terms of hire-purchase of a vehicle the hirer had to pay certain amounts per month to the owner and where an initial deposit was made this amount was larger for the first month. The hirer had to pay during the period of hire monthly instalments. He was not to sell, charge pledge or assign or part with possession. Under one of the clauses if the hirer fails to observe and perform the conditions stipulated and pay all rents together with all other sums payable under the agreement then on the termination of the hiring, the hirer may purchase the articles from owner for a sum of Re. If. Under one of the clauses if the hirer fails to observe and perform the conditions stipulated and pay all rents together with all other sums payable under the agreement then on the termination of the hiring, the hirer may purchase the articles from owner for a sum of Re. If. A similar provision of payment of Re. If is also involved in the present case. As already noted the Supreme Court categorically decided that when the option is not exercised or cannot be exercised there is no sale at all. The taxable event is the sale of the goods and therefore the tax can only be levied when the option is exercised after fulfilling all the terms of the hire-purchase agreement. The petitioner therefore has a strong case on the basis of the aforesaid decision that hire-purchase transactions were, therefore, not necessarily sales and did not come automatically within the purview of sales tax. By a decision of the Supreme Court, in the case of Bihar State Agro Industries Development Corporation Limited v. State of Bihar & anr. reported in 31 STC 484, Explanation (1) appended to the definition of "Sale" in S. 2(p) of the Bihar Sales Tax Act, 1959 was held to be ultra vires the Bihar Legislature. Following the decision of K.L. Johar and Company's case the mere transaction of hire-purchase entered into by the petitioner company with the" different hirers was held not to amount to sale. The transaction according to this decision will amount to sale as and when option of the intending purchaser will be exercised and they would fructify into complete sales. In that case "also the terms of the agreement contained in annexure "A" "made it typical a hire-purchase agreement where the hirer has been given an option to purchase the property finally at Re. 1/-." It was also held that the transactions on the basis or the hire-purchase agreement are so well known to the commercial world that it does not seem possible to take a view that a registered dealer after having purchased goods for re-sale utilised them for any purpose other than re-sale by merely entering into such transactions. It was held that utilisation of the goods would not be said to be for a purpose other than re-sale. 6. In another case, namely, Instalment Supply Limited v. The Sales Tax Officer, Ahamedabad & ors. It was held that utilisation of the goods would not be said to be for a purpose other than re-sale. 6. In another case, namely, Instalment Supply Limited v. The Sales Tax Officer, Ahamedabad & ors. reported in 34 STC 65, the Supreme Court also distinguished a contract of sale from a hire-purchase. The said decision held that the Gujarat legislature could have incorporated the words of S. 4(2) of the Central Sales Tax Act in the explanation to S. 2(28) of the Gujarat Act. There can be no objection to a State making sales of goods which are inside the State liable to sales tax. It was further held that in the case of a hire-purchase agreement where an option to purchase is conferred on the hirer, sales tax can only be levied by the State Legislature under entry 54, List II, Schedule VII of the Constitution when the option is exercised by the hirer after fulfilling all the terms of the hire-purchase agreement as till then no sale takes place. It was pointed out that a contract of hire-purchase is, properly speaking, a contract of hire by which the hirer is granted an option to buy, but is not, as under a contract of sale, under a legal obligation to do so. The actual sale, it was held on the facts of that case, fructified only when the hirer has exercised his option to purchase under the agreement. It was held that it was really no sale when the hire-purchase agreement was entered into. Following the case of Smt. Ujjambai v. State of U.P. reported in 1963(1) SCR, the Court held that the writ application lay (1) where action is taken under a statute which is ultra vires of the Constitution (2) where the statute is intra vires but the action taken is without jurisdiction and (3) where the action taken is procedurally ultra vires as where a quasi-judicial authority under an obligation to act judicially passes an order in violation of the principles of natural justice. Mr. Bhattacharjee strongly relied on the aforesaid decisions and pointed out that in the case of Bihar State Agro Industries Development Corporation revised returns were filed and there were re-assessment. 7. Mr. Dutt, learned advocate appearing on behalf of the State challenged the maintainability of the petition on two grounds firstly that a revision petition was pending. Mr. Bhattacharjee strongly relied on the aforesaid decisions and pointed out that in the case of Bihar State Agro Industries Development Corporation revised returns were filed and there were re-assessment. 7. Mr. Dutt, learned advocate appearing on behalf of the State challenged the maintainability of the petition on two grounds firstly that a revision petition was pending. The same will be discussed later. Another branch of his argument was that the whole thing turned on disputed question of facts. Mr. Dutt stated that the decisions of the Supreme Court including the one in the case of K.L. Johar and Company and the principles enunciated therein could not be a matter of controversy. The petitioner, according to him, was a registered dealer and the Sales Tax Officer had jurisdiction to asseess him. As in the course of assessment it transpired that the agreements were sham transactions and that the goods were not on hire but they were sales it was legitimate for the officer concerned to make the assessment. Mr. Dutt challenged the court's jurisdiction on the reasons assigned by the assessing Officer which are to be found in annexure to the petition at page 84. Mr. Dutt pointed out that in many cases instalments had been paid but Re. 1/- remains unpaid. In the stock books of the petitioner the goods were deleted as they were obviously treated as complete sales. It showed that the petitioner proceeded on the basis that the property in the goods were already transferred. The action of the Parties concerned would indicate the nature of the transaction. The Commercial Tax Officer found that it was a sham agreement to defraud the revenue. The petitioner himself did not act on the basis of the so-called agreement. Although there was provision that if Re. 1/- was unpaid goods could be taken back, they were never taken back. Really sales are taking place but the petitioner resorted to a device to defraud the revenue. Mr. Dutt submitted that it was unlikely that customers who could pay hundreds of rupees in some cases would fail to pay Re. 1/- to acquire title. In any event, rightly or wrongly the Commercial Tax Officer came to a finding of fact. He also pointed out that the orders of the Appellate Officer also show that he treated the transactions as sales. 1/- to acquire title. In any event, rightly or wrongly the Commercial Tax Officer came to a finding of fact. He also pointed out that the orders of the Appellate Officer also show that he treated the transactions as sales. The onus was on the assessee to show that what was treated as sale was not so and that they were hire-purchase transactions. Mr. Dutt submitted that the case having involved disputed question of fact this court should not enter into the same in its writ jurisdiction. 8. On the other hand, the facts of this case seem to be similar to the facts in the case of Johar and Company. Only when Re. 1/- would be paid the transaction would ripen into a sale. Before that it could only be treated as hire-purchase. Even if in all the cases in a particular year Re. 1/- remained unpaid that would not deprive the State of revenue. As and when subsequently Re. 1/- would be paid that would turn into a sale which would then be leviable to tax. It was pointed out by Mr. Bhattacharjee that it is not the case of the State that there were no transaction at all. The officers could have summoned the parties concerned. Out of a turnover of more than 12 lacs of rupees only a lac and a half or so were involved in the hire-purchase. The agreements were signed by both the parties. Without cogent evidence they could hardly be held to be sham. Moreover, it was the admitted case of the petitioner firm that it had, in fact, treated through mistake the hire-purchase transactions as sales. That is why the books of accounts did not include the subject matter of agreements in the stock. Mr. Chakraborty, C.T.O. sought to make an estimate as the dealer did not produce the statement of hire-purchase. But all documents and books of accounts and copies of agreement and counter-part of receipts were there. In fact, the Assistant Commissioner of Commercial Taxes had rejected the said plea on an earlier occasion on the 28th of February, 1970 and indicated the guide lines. Yet the Commercial Tax Officer while making the order on the 14th of November, 1970 did not pay any heed to the decision of the Appellate Authority. In fact, the Assistant Commissioner of Commercial Taxes had rejected the said plea on an earlier occasion on the 28th of February, 1970 and indicated the guide lines. Yet the Commercial Tax Officer while making the order on the 14th of November, 1970 did not pay any heed to the decision of the Appellate Authority. On the other hand, the officer, as noted earlier, threatened that if the petitioner persisted the issue of declaration form would be stopped. 9. It was submitted by Mr. Bhattacharjee with some force that even in the case of disputed facts if jurisdictional facts were involved the court may entertain a petition of this nature. In the case of The Bengal Immunity Company Limited v. State of Bihar, reported in 6 STC 446, it was held that the High Court was not right in holding that a petition under Article 226 was misconceived or was not maintainable, inasmuch as, by virtue of the act the officer purported to tax a non-resident dealer in respect of an inter-State sale. The same was fully illegal and as such the court could entertain a petition. It was held "it is however clear from Article 265 that no tax can be levied or collected except on authority of law which must mean a good and valid law. The contention of the Appellate Company is that the act which authorises the assessment, levy and collection of sales........constitutes an infringement of Article 286 and is, therefore, ultra vires, void and unenforceable. If therefore, this contention be well founded the remedy by way of writ must, on principle and authority, be available to the party aggrieved." In the case of Carl Steel G. m. b. H. v. State of Bihar, reported in AIR 1961 SC 1615 , it was observed "It is true that if a statute sets up a Tribunal and confers to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matter, the High Court will not, in the exercise of its extra-ordinary jurisdiction under Article 226, issue a prerogative writ so as to remove the proceedings out of the hands of the Tribunal or interfere with their course before it. But it is equally well settled that, when proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under Art. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course." The earlier decision in the case of State of Bombay v. The United Motors (India) Ltd. 1953 SCR 1069 at page 1077, and Himmatlal Harilal Mehta v. State of M.P. 1954 SCR 1122 at page 1127 and the Bengal Immunity Co. Ltd. v. The State of Bihar, (1955) 2 SCR 661 were relied on. It was further held in that case that if the proceeding before the Sales Tax Officer are founded on the provisions of the Act, which authorizes the levy of the tax on the supply of materials in construction contracts, then they must be held to be incompetent and quashed. An observation was made in that case if the respondents sought to tax on the footing that sales of material were effected within the contract it was their duty to have put the case forwarded in answer to the petition which they did not. In the case of Commissioner of Gujarat v. A. Raman & Company, reported in 67 ITR 11 it was held that the High Court exercising jurisdiction under Article 226 of the Constitution has power to set aside a notice issued under S. 147(b) of the Income-tax Act, 1961 if the condition precedent to the exercise of the jurisdiction does not exist. The Court may in the exercise of its power ascertain whether the Income-tax Officer had in his possession any information. The Court may also determine whether from the information the Income-tax Officer may have reason to believe that the income chargeable to tax has escaped assessment. The Court finds substance in Mr. Bhattacharjee's contention that if jurisdictional facts were involved even if the same concerned some disputed facts they would not necessarily take away the jurisdiction of the Court. In this case the crux of the matter was to decide whether it was a sale or hire-purchase transaction. 10. After conclusion of the hearing Mr. Dutt wanted to cite some cases and he was given an opportunity to do so. In this case the crux of the matter was to decide whether it was a sale or hire-purchase transaction. 10. After conclusion of the hearing Mr. Dutt wanted to cite some cases and he was given an opportunity to do so. He relied on a number of decisions to contend that this petition is not maintainable. In the case of Sheonath Singh v. Appellate Assistant Commissioner, reported in 67 ITR 254 (FE), it was held that where an applicant availed of an alternative remedy parallel proceedings should not go on. The same, however, went up to the Supreme Court (82 ITR 147) which overruled the Full Bench decision on some points. But in the aforesaid case there was no question of any jurisdictional facts being involved. Mr. Dutt also referred to the case of K.S. Rashid & Son v. ITO Com. AIR 1954 SC 207 for the proposition that when the remedy is discretionary and the assessee avails of another remedy the writ jurisdiction of the court may not be invoked. Another case cited was Union of India v. T.R. Verma reported in AIR 1957 SC 882 which held that if there is a question on which a serious dispute arises which cannot be satisfactorily decided which without taking evidence, it is not the practice of the court to decide it in a writ petition. Two other cases cited in this connection are C.A. Abraham v. Income-tax Officer Kottayam & Ors reported in AIR 1961 SC 609 and Aanailal Sethi v. Collector of Land Customs, Calcutta reported in 60 CWN 1042. In the former case as the petitioner had adequate remedy in the Tribunal it was held that the High Court was not justified in entertaining an application. In the latter case Chakraborty, C.J. held that when a party avails himself of the ordinary remedies provided for by a special act he cannot thereafter turn round and begin once again from the bottom by challenging the original order under Article 226 of the Constitution. In the latter case Chakraborty, C.J. held that when a party avails himself of the ordinary remedies provided for by a special act he cannot thereafter turn round and begin once again from the bottom by challenging the original order under Article 226 of the Constitution. In another case, namely, DLF Housing Construction (P) Ltd. v. Delhi Municipal Corporation reported in AIR 1976 SC 386 (paragraphs 16 to 18) it was held that where basic facts are disputed and complicated questions of law and facts depending on the evidence are involved writ court is not the proper form for seeking relief Still another case cited was reported in AIR 1976 SC 475 , where the facts were completely different it is not necessary to go into further details on this case law cited by Mr. Dutt. As pointed out earlier Mr. Bhattacharjee submitted that whether Re. 1/- on the agreement for hire-purchase was paid or not was not disputed. No dispute really existed or even was suggested. The jurisdictional fact involved in this case of assessment centered round whether the transactions really amounted to sale or hire-purchase agreement. There is also no dispute that the option of the persons who entered into the hire-purchase agreement was not exercised. In fact, the petitioners have come before this court with the case as they have clearly stated in their petition, that the respondents have no jurisdiction to subject the petitioner to the proceedings under the Bengal Finance (Sales Tax) Act inasmuch as the transactions in question are not sales at all. 11. We have already noted series of decisions of the Supreme Court such as those in the case of Bengal Immunity Co. Ltd., Ujjambai, Instalment Supply Ltd., Carl Steel G. m. b. H. in this regard on the question of jurisdiction. In a recent case Nepal Chandra Banerjee v. The Commercial Tax Officer reported in 1977 (1) CLJ 422 : (1977 CHN 326) it has been held that even though there is a right of appeal a writ petition may lie. It was held on the facts of that case that by virtue of the impugned order of assessment the respondents were seeking to levy a tax which is not leviable in law. It was held on the facts of that case that by virtue of the impugned order of assessment the respondents were seeking to levy a tax which is not leviable in law. In that state of affairs the petitioner was being sought to be deprived of his property without the authority of law within the meaning of Article 31(1) of the Constitution of India. As in that case the present writ application must be held to be for enforcement of a right conferred by the provisions of Part III of the Constitution of India and as such within the ambit of Article 226(1)(a) of the Constitution. In the case of L. Hirday Narayan v. ITO, reported in 78 ITR 26 a revisional application under S. 33A could have been moved. It was held, however, that the same would not justify a High Court, in dismissing the petition and holding the same to be not maintainable when it was already entertained. It has already been noted in course of discussion earlier that the points involved here is mainly whether the transactions are hire-purchase transactions or sales. Categorical statements have been made that Re. 1/- was never paid so that the hire-purchase transactions did not ripen into sale. There is no dispute that the option was not exercised by the hirer. Now in the case of M/s. Raza Textiles Limited v. ITO, Rampur, the Supreme Court held that no authority much less a quasi-judicial authority can confer jurisdiction on itself by deciding a jurisdictional fact wrongly. Whether the jurisdictional fact decided or not is a question that is open for examination by the High Court in an application for a writ of certiorari. In the well known case, Coffee Board, Bangalore v. Joint Commercial Tax Officer Madras & Ors reported in AIR 1971 SC 870 , it was held that where action is taken under an ultra vires statute, or where, although the statute is intra vires, the action is without jurisdiction or the principles of natural justice are violated, a right to move Supreme Court under Article 32 for enforcement of fundamental right exists. In another decision by a Division Bench of this Court in which I delivered the judgment (Thomas Duff and Co. In another decision by a Division Bench of this Court in which I delivered the judgment (Thomas Duff and Co. v. Collector of Customs, reported in 1976CHN 242) it was held "it is well-settled that no authority much less a quasi-judicial authority can confer jurisdiction on itself by deciding the jurisdictional facts wrongly." Among other decisions reliance was placed on the case of M/s. East India Commercial Company Limited & Ors. v. Collector of Customs, reported in AIR 1961 SC 1893 which considered the provisions of Sea Customs Act and Import and Export (Control) Act, 1947. 12. Having regard to the decisions noted and the principles dealt with therein this court holds that the petition is maintainable. 13. The other branch of Mr. Bhattacharjee's argument related to mala fide on the part of the Tax Officials, namely, Mr. S.K. Chakraborty, Commercial Tax' Officer, Bhowanipore Charge and Mr. K. Das Gupta, Assistant Commissioner of Commercial Taxes (South Circle). The nature of the allegations had already been noted in brief, when the facts were narrated at the outset. Mainly the allegations against Mr. Chakraborty are that he declined to decide the question of law as to hire-purchase transaction and threatened the petitioner saying (paragraph 14 of the petition) that if the petitioner agitated and pressed the question the issue of declaration form would be stopped to the petitioner. The said officer made an assessment for the 4 quarters ending 31st December, 1965 after treating the hire-purchase transaction as sale. On appeal the Assistant Commissioner set aside the assessment on the 18th of February, 1970 and sent the same back on remand. The said officer again ignoring the direction of the Appellate Commissioner passed an order of assessment for the 4 quarters ending December, 1966 in a similar fashion on the 14th of November, 1970. The officer proceeded on the alleged ground that the dealer did not produce a statement of hire-purchase transactions. The petitioner, however, produced the books, registers, receipts and other documents. The officer ignored the guide-lines of the Appellate Officer. The said order dated 14th of November, 1970 was also set aside by another Assistant Commissioner by an order dated 2nd December, 1971 with a direction to pass fresh order after making detailed examination of the books of the account of the dealer. The officer ignored the guide-lines of the Appellate Officer. The said order dated 14th of November, 1970 was also set aside by another Assistant Commissioner by an order dated 2nd December, 1971 with a direction to pass fresh order after making detailed examination of the books of the account of the dealer. It may be noted that the Assistant Commissioner himself commented that the Commercial Tax Offices proceeded to make estimate in the absence of a statement "despite admitting the presence of hire-purchase debtor register". He stated the entries made from time to time in the particular register gives sufficient indication as to the stage when the goods were delivered, instalments paid from time to time the final date when the sale fructified". The other allegation on mala fide against Mr. Chakraborty is that the hearing with regard to assessment for 4 quarters ending 1967 was concluded on the 18th of September, 1971 yet he purported to regard in an order on the 20th September, which was shown to the dealer on the 26th October, 1971 when the dealer is supposed to have admitted that some contracts of hire-purchase were not acted upon (paragraph 24). The allegation against the Assistant Commissioner is that he expressed his opinion by saying that he was interested only in realisation of the taxes and not in hearing the legal arguments (paragraph 26). He refused to hear the authorised representative of the petitioner and upheld the decision of the Commercial Tax Officer with regard to 4 quarters ending December, 1967. 14. With regard to the allegations on mala fide the officers concerned have not come forward to deny the said allegations. One Dilip Kumar Mukherjee has affirmed an affidavit on behalf of respondents 1 to 4 which is affirmed on the 25th of April. 1975. Even in the said affidavit the allegations made against the said officers have not been dealt with specifically. For example, with regard to the allegations made in the petition in paragraph 14, in paragraph 8 of the affidavit-in-opposition it is merely stated that the statements in the petition "are matters of records and I do not admit anything which is not borne out by the record of the case". The other allegations relevant on this question in paragraphs 18, 19, 23, 24, 26 and 27 of the petition are similarly dealt with unsatisfactorily. 15. The other allegations relevant on this question in paragraphs 18, 19, 23, 24, 26 and 27 of the petition are similarly dealt with unsatisfactorily. 15. The law on the point has been laid down clearly by the Supreme Court in several decisions. In the absence of a denial by the officer concerned the allegations as to mala fide cannot be brushed aside except in cases where they are irrelevant or improbable on the face of it. In the case of Rudra Rao v. The Income-tax Officer, reported in 34 ITR 216, it was held that when allegations of mala fide are made against officers, individuals against whom those allegations are directed, must themselves answer them and should not be left to some other officer to do so. In the case of Pratap Singh Kairon v. The State of Punjab, reported in AIR 1964 SC 72 , the "Supreme Court observed that allegations of personal character made against the Chief Minister could be repelled either if the allegations are wholly irrelevant or in the absence of intrinsic improbability, if the allegations could be encountered by documentary or affidavit evidence showing their falsity. In the absence of such evidence they could be disproved only by the party against whom the allegations were made denying the same on oath. In the absence of contradiction by the Chief Minister it was observed that the allegations should not be brushed aside. In another case Bowiss v. The State of A.P. reported in AIR 1964 SC 961 there were allegations that the Chief Minister was motivated by extraneous considerations with regard to certain schemes framed under the Motor Vehicles Act. There was no denial by the Chief Minister or by the affidavit by any person who claimed or could claim to know personally about the truth of these allegations. The counter affidavit filed by the Secretary to the Government consisted of formal denial of the allegations. In the circumstances the Supreme Court was constrained to hold that the allegations against the Chief Minister stood unrebutted. In the case of State of Hariyana v. Rajenera Saraan, reported in AIR SC 1004, the Supreme Court observed that the proper approach with regard to allegation of mala fide is to consider all of them to find out whether they are sufficient to prove malice or it will on the part of the official concerned. In the case of State of Hariyana v. Rajenera Saraan, reported in AIR SC 1004, the Supreme Court observed that the proper approach with regard to allegation of mala fide is to consider all of them to find out whether they are sufficient to prove malice or it will on the part of the official concerned. In certain eases each individual allegations, treated separately, may not lead to an inference of mala fides but when all the allegations are taken together and found to be established then the inference to be drawn from this established facts may lead to the conclusion that an order has been passed mala fide out of personal ill will or malice. On the facts of this case and specially in the absence of any rebuttal of the allegations made in the petition as referred to earlier the submissions of Mr. Bhattacharjee that the circumstances are such that they are conducive to the conclusion that the officers were actuated by mala fide cannot be brushed aside lightly. However, as the petition rests on strong grounds on merit itself it is not necessary to dwell further on this aspect of the matter. 16. It was already been held earlier that there is merit in the petition. The same is, therefore, allowed. The Rule in terms of prayers (a), (b) and (c) is made absoulute except that the respondents will refund the amounts mentioned therein or such other amounts as may be found due on the basis of the registers, books, receipts and other documents already filed by the petitioner and upon deciding that the transaction where Re. 1/- has not been paid so as to ripen the transaction into a sale is to be regarded as hire-purchase in the light of what has been discussed above. There will be no order as to costs. 17. Let there be a stay of operation of the order, as prayed for, for six weeks. Rule made absolute.