JUDGMENT Sengupta, J.: In this appeal the grievance of the appellants is that on the Writ application filed by the petitioner challenging, inter alia, the purported assessments made under Bengal Finance (Sales Tax) Act, 1941 in respect of the period from April 19, 1984 to March 31, 1986, assessments made under the Central Sales Tax Act, 1956 in respect of the period from March 29, 1984 to March 31, 1986. Eight appellate orders dated 10th June, 1988 in Appeal Case Nos.A-117 to A-124/CS (AM)/88-89; purported notices under section 11 B of the Bengal Finance (Sales Tax) Act, 1941; and the Certificate proceedings under the Bengal Public Demands Recovery Act, 1913 in Certificate Case Nos. 69 To 76 (STCCR) 87-88(AW), the Court of the first instance refused to pass any interim order. In the appeal, an application has been filed for an interim order restraining the respondents from acting on the basis of and in furtherance of the aforesaid impugned orders. 2. By consent the application has been treated as an appeal. It is agreed that in the terms of the order that may be passed in order disposing of the appeal with also dispose of the writ petition. 3. After the affidavits have been completed we have heard the learned Counsel appearing for the parties. Elaborate arguments have been made on the merits of the writ application. 4. To appreciate the contention of the learned Counsel it is necessary to set out the facts leading to the presentation of the writ application before the writ Court. 5. The first petitioner is a company incorporated under the Companies Act, 1956 (hereinafter referred to as the said Company having its registered office at 7A, Bentinck Street, Calcutta-I and owns a Tea garden, known as Samsing Tea Estate at P.C. Metalli in the District of Jalpaiguri and the second petitioner is a shareholder of the said company. The company was incorporated on December 15, 1952 under the name and style of Tea King (Distributors) Ltd., which was subsequently changed to The Samsing Plantation and Industries Ltd. 6. The said Tea garden being Simsing Tea Estate was acquired by the Company by purchase from Messrs Duncan Agro-Industries Ltd. by an Indenture of Transfer of Lease and Conveyance dated March 28, 1985 effective from January 19, 1984. The said Tea garden being Simsing Tea Estate was acquired by the Company by purchase from Messrs Duncan Agro-Industries Ltd. by an Indenture of Transfer of Lease and Conveyance dated March 28, 1985 effective from January 19, 1984. The Company was duly registered under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Bengal Act) with effect from April 19, 1984 and also under the Central Sales Tax Act, 1956 (referred to as the Central Act) with effect from June 15, 1984. The said Certificates were issued in the name of the Company under both the Bengal and Central Acts and thereafter these two certificates were duty amended from time to time consequent upon the changes, inter alia, in the accounting period of the company. 7. The case of the petitioners is that the tea manufactured by the Company is most sold at auctions held at Siliguri and Calcutta through the registered auctioneers/brokers who generally realise the Sales Tax leviable thereon from the buyers and pay the same to the Sales Tax authorities. There is a prohibitive imposition of cess at Rs.4/- per K.G. of tea in respect of direct sales of tea by the tea gardens and most of the tea gardens including the Company make no or few sales directly. The petitioners also send tea on consignment basis to its agents outside the State of West Bengal and the Company receives Declarations in Form “F” from those agents. The said consignment agents sell the tea in their respective States after paying the local Sales Tax leviable on such sales. 8. According to the petitioners the company is not liable to pay any tax under the Bengal and Central Acts in respect of sales made by the registered auctioneers/brokers at the auctions or in respect of the tea sent on consignment basis to the agents of the company outside the State of West Bengal and in turn these registered auctioneers/brokers from time to time duly issue Certificates to the company to the effect that they have paid the Sales Tax due In respect of the sales made by them at the auctions. After deducting sales made at the auctions by those registered auctioneers/brokers and the value of the goods sent on consignment basis to agents outside the State, the taxable 'turnover of the Company under both the Bengal and Central Acts is very meagre. After deducting sales made at the auctions by those registered auctioneers/brokers and the value of the goods sent on consignment basis to agents outside the State, the taxable 'turnover of the Company under both the Bengal and Central Acts is very meagre. It would be evident from the records of the Company that during the period in question the company had a gross turnover of Rs. 6.56 crores out of which sales made by the registered auctioneers/brokers at the auctions would come to Rs. 5.26 crores and the value of tea sent on consignment basis to agents outside the state amounted to Rs. 1.21 crores. The sales of tea made by the Company directly during the period in dispute were to the tune of Rs.9 lacs only. 9. The Company duly filed returns under the Bengal and Central Acts in respect of the period upto and including December 31, 1987 and paid the taxes payable thereon. The returns were filed in accordance with the law having regard to the changes in the accounting period of the Company. Particulars of the different periods for which such returns were filed and the respective dates of filing are given hereinbelow : Period for which returns Date of Filing were filed. & 1.1.84 to 31.12.84 15 months 15.2.85 1.1.85 to 31.3.85 Accounting Period 1984-85 18.6.85 1.4.85 to 31.3.86 Accounting Period 1985-86 14.4.86 Periods for which returns Date of Filing were filed & 1.4.86 to 31.12.86 9 months 22.7.87 1.1.87 to 31.3.87 3 months 22.7.87 1.4.87 to 31.12.87 9 months 12.4.88 10. In or about December, 1987 a notice was round allegedly pasted on the door of the then registered office of the company at No.P-10, New Howrah Bridge Approach Road, Calcutta alleging therein as the Company had not filed its returns under both the Bengal and Central Acts for the period mentioned in the said notice and directed the Company to call on the Commercial Tax Officer on December 22, 1987 at 10.30 A.M. with all documents and also to show cause why penalty should not be imposed in addition to tax. Hereinbelow given are the particulars of the said notice :- Bengal Finance (Sales Tax) Act, 1941 Case No. Period for which returns not furnished. Hereinbelow given are the particulars of the said notice :- Bengal Finance (Sales Tax) Act, 1941 Case No. Period for which returns not furnished. 100/0/87-88 19.4.84 to 14.06.84 101/0/87-88 15.6.84 to 31.12.84 102/0/87-88 1.1.85 to 18.11.85 103/0/87-88 19.11.85 to 31.3.86 104/0/87-88 1.4.86 to 31.12.87 Central Sales Tax Act 1956 Case No. Periods for which returns not filed. 96/0/87-88 15.6.84 to 31.12.84 97/0/87-88 1.1.85 to 18.11.85 98/0/87-88 19.11.85 to 31.3.86 99/0/87-88 1.4.86 to 31.12.87 11. Thereafter, the petitioners also received individual notices under sections 11 and 14(1) of the Bengal Act and under section 9 of the Central Act read with sections 11 and 14(1) of the Bengal Act issued by the Commercial Tax Officer, Central Section, alleging that the company had not furnished returns for the periods mentioned therein, and also intimated therein that hearing for the purpose of assessment in respect of the said periods was fixed on 22nd December, 1987. According to the petitioners the allegation made in the said notices that the company had not filed returns was and is baseless and incorrect inasmuch as the company did file its returns for the periods coinciding with the accounting periods as permitted by the Commercial Tax Officer and accordingly, the company by its letter dated 22nd December, 1987 duly informed the Commercial Tax Officer that the, notices related to certain broken periods which were actually covered by the returns already filed. In the said letter the Company requested the Commercial Tax Officer to adjourn the date of hearing by a week as the lawyer who looks after the Sales Tax matters of the Company was out of Calcutta. The Commercial Tax Officer rejected the said request for adjournment. It further appears that after rejecting the adjournment petition of the petitioners, the Commercial Tax Officer proceeded to make the assessments ex parte to the “best of judgment” computing the sales tax, purchase tax, turnover tax, and Central Sales Tax on the basis of arbitrary figures of estimated gross turnover and estimated purchases from unregistered dealers. Particulars of the purported estimated turnovers made in the said assessments orders are given below : Period of Assessment Estimated turn- Estimated Estimated pur over under the turnover chases from Bengal Act under the un-regd. Central dealers. Act Rs. Rs. Rs. 1. 19.4.84 to 2,00,00,000/- 1,00,00,000/- 10,00,000/- 14.6.84 (In case of C.S.T. the period was 29.3.84 to 14.6.84) 2. Particulars of the purported estimated turnovers made in the said assessments orders are given below : Period of Assessment Estimated turn- Estimated Estimated pur over under the turnover chases from Bengal Act under the un-regd. Central dealers. Act Rs. Rs. Rs. 1. 19.4.84 to 2,00,00,000/- 1,00,00,000/- 10,00,000/- 14.6.84 (In case of C.S.T. the period was 29.3.84 to 14.6.84) 2. 15.6.84 to 31.12.84 10,00,00,000/- 5,00,00,000/- 2,00,00,000/- 3. 1.1.85 to 18.11.85 10,00,00,000/- 5,00,00,000/- 2,00,00,000/- 4. 19.11.85 to 31.3.86 4,00,00,000/- 1,00,00,000/- 1,00,00,000/- 26,00,00,000/- 12,00,00,000/- 5,10,00,000/- The cumulative total of the estimated gross turnover both under the Bengal and Central Acts would he Rs. 38,00,00,000/- as against the actual gross turnover of Rs 6.56 crores. On the basis of the said purported ex parte assessments the Commercial Tax Officer also issued Demand Notices in Form VII both under the Bengal and Central Acts. 12. Against the aforesaid ex parte assessment orders the Company filed eight several appeals on January 30, 1986 before the Assistant Commissioner of Commercial Taxes, Central Section contending that the ex parte assessment orders wholly arbitrary, illegal, without jurisdiction and unsustainable. 13. By a notice dated 29th January, 1988 issued under section 11B of the Bengal Act addressed to M/s. J. Thomas & Co. Ltd. being one of the auctioneers of tea through whom a major portion of the tea produced in the tea garden of the company is sold, the respondent Commercial Tax Officer directed the said auctioneers to deposit in the Government Treasury (Reserve Bank of India) an amount of Rs.82,20,000/- or any other sum as may be due to the Company from the said auctioneer and the said payment was required to be made towards the alleged arrears of tax of the company. 14. On receipt of the said notice, the said M/s. J. Thomas & Co. Pvt. Ltd. informed the Company and also wrote to the respondent Commercial Tax Officer stating that they were holding the amount payable to the Company. Thereafter, the Company by its letters to the Respondnet Nos.2 and 3 informed that the company had filed appeals against the said ex parte assessments and requested for withdrawal of the notices of demand till the disposal of the appeals. Thereafter, the Company by its letters to the Respondnet Nos.2 and 3 informed that the company had filed appeals against the said ex parte assessments and requested for withdrawal of the notices of demand till the disposal of the appeals. But the Respondent No.2 the Commercial Tax Officer instead of withdrawing the said notice under section 11B of the Bengal Act, issued further notices under section 11B to the other auctioneers/brokers namely Contemporary Targett Ltd., Associated Brokers Pvt. Ltd., Carrit Moran & Co. Pvt. Ltd., Tea brokers Pvt. Ltd , and A. W. Figgis & Co. Ltd., directing them to deposit the amounts held by them. In the said notices, the respondent, Commercial Tax Officer has also alleged that the company was a defaulter in payment of tax and the amounts mentioned in the said notices were arrears of taxes. 15. The petitioners were, however, with the impression that he stay applications have been filed along with the eight several appeals but on learning that such stay applications had not been made by the lawyer, the Company engaged another Advocate to take the applications for stay and to file the same before the appropriate authority such stay applications were filed on 22nd March, 1988 under section 80B pf the Bengal Sales Tax Rules, 1941 for stay of the recovery of the tax and penalty assessed for the period from March/April, 1984 to March 1986. The said applications for stay were heard by the Assistant Commissioner of Commercial Taxes, the Respondent No.3 on April 12, 1988 who reserved his order on the said date. 16. In the meantime, the petitioners received notices issued by the Certificate Officer, 24-Parganas, intimating that the Certificate Cases hearing Nos. 69 to 76 ST (CR) 87-88 (AW) had been initiated under the Bengal Public Demands Recovery Act, 1913 (referred to herein as 1913 Act) for recovery of the alleged tax dues under the Bengal and Central Acts for the periods from March/April, 1984 to March, 1986. On receipt of the said notices the Company made applications denying the liability and praying for stay of the said certificate proceedings before the Certificate Officer, 24-Parganas. On receipt of the said notices the Company made applications denying the liability and praying for stay of the said certificate proceedings before the Certificate Officer, 24-Parganas. In the said stay was, inter alia, prayed that the appeals against the ex parte assessment orders and stay applications filed therein are pending, accordingly the said certificate proceedings should be kept in abeyance till the disposal of the said stay applications of the Company. 17. In view of the directions given by the respondent Commercial Tax Officer to the aforesaid brokers not to pay any sale proceeds to the company, the entire business of the company has come to a stand still putting the Company as well as the employees of the company in great jeopardy. In asmuch as no or negligible private sale is made by the Company, and the tea produced by the company is made though the said tea brokers and auctioneers the company is vitally depending on the, sale proceeds to be received from the said brokers in order to run the said tea garden. As no order was passed on the aforesaid stay petitions made in connection with the above mentioned appeals although the same were heard on 12th April, 1988, the said brokers of the company stopped paying any amount by way of sale proceeds to the company. In fact, the said M/s. J. Thomas and Contemporary Targett Ltd. threatened to deposit the amount with the Reserve Bank of India. 18. In the circumstances aforesaid on May 20, 1988 an application under Article 226 of the Constitution was made with due notice to the respondents. The said application was disposed of directing, inter alia, that the orders on the said applications for stay shall be made and the same shall be despatched by the Appellate Authority within seven days and the appeal shall be disposed of within, one month. In the meantime, further operation of the notices issued under section 11B of the Bengal Act was to remain stayed for 11 period of seven days. The said order was made in presence of the learned Counsel for the respondents and communicated to the respondents. 19. On May 16, 1988 the petitioners were informed by M/s. J. Thomas & Co. In the meantime, further operation of the notices issued under section 11B of the Bengal Act was to remain stayed for 11 period of seven days. The said order was made in presence of the learned Counsel for the respondents and communicated to the respondents. 19. On May 16, 1988 the petitioners were informed by M/s. J. Thomas & Co. Pvt. Ltd. that the respondent Commercial Tax Officer Central Section has informed them that on the same day i.e. on May 16, 1988 the Assistant Commissioner of Commercial Taxes has passed order on the stay applications filed by the company wherein the Assistant Commissioner directed the company to deposit 75% of the disputed demands and that the balance amount of 25% would remain stayed till the said appeals were finally disposed of and the said J. Thomas & Co. was directed to deposit the amount held by them on account of the Company, or else, appropriate peace action would be taken against the M/s. Contemporary Targett Ltd. also received letter containing similar directions. 20. The said orders dated May 16, 1988 passed by the Appellate Assistant Commissioner were not communicated to the Company until at least May 19, 1988. Yet on the very day of making the said order i.e., on May 16, 1988, the Respondent Commercial Tax Officer informed the said auctioneers and threatened them with penal action unless they deposit the amount held by them on account of the Company. The said orders passed on the stay applications of the company were designed to render the appeals of the company nugatory and infructuous in the circumstances, the petitioners moved another application under Article 226 of the Constitution challenging the legality and/or validity of the said notices under section 11B of the Act served on the Auctioneers, and the said order dated May 16, 1988 issued by the Commercial Tax Officer to M/s. J. Thomas & Co. and the orders dated May 16, 1988 alleged to have been made by the Assistant Commissioner. On the said application B.P. Banerjee, J after hearing the parties, was pleased to make an order to the following effect :- (i) The Commercial Tax Officer was restrained from withdrawing any money on account of the company from the auctioneers being the respondents in the said petition including M/s. J. Thomas & Co. On the said application B.P. Banerjee, J after hearing the parties, was pleased to make an order to the following effect :- (i) The Commercial Tax Officer was restrained from withdrawing any money on account of the company from the auctioneers being the respondents in the said petition including M/s. J. Thomas & Co. Pvt. Ltd. and the petitioners were also directed not to withdraw any money from the auctioneers and the auctioneers were not to para with any money on account of the petitioners till June 13, 1988. (ii) The said writ petition was directed to appear for hearing on June 13, 1988. (iii) The appeals were directed to be disposed of by the Appellate Authority by the date fixed on top priority basis and the petitioners were directed not to pray for any adjournment. 21. In course of personal hearing of the company on June 6, 7, 8 and 9, 1988 in respect of the appeals, the company produced all the relevant and material books' documents and papers including, inter alia, its book of account, audited annual accounts, sale invoices, certificates issued by auction brokers. Declaration forms, assessment copies of the MT-12 returns filed under the Central Excise & Salt Act, 1944 and/or the Central Excise Rules, 1944, documents of consignment etc. The Advocate appearing for the company also duly filed written statements summarising in brief and arguments made at the time of bearing. On June 18, 1988 at about 3.30 p.m. the company received orders on the said appeals filed against the said ex parte assessments for the period from March/April, 1984 to March, 1986. By the appellate orders the books of account of the Company were rejected. The appellate authority further determined the alleged gross turnover of the Company during the period in question at Rs.34.65 p. against Rs. 38 crores determined by the Commercial Tax Officer. He further determined the alleged purchases made by the company from un-registered dealers chargeable to purchase tax at Rs. 3.05 crores as against Rs. 5.100 crores, On June 18, 1988 the Company received eight purported notices all dated June 18, 1988 issued by the respondent, Commercial Tax Officer specifying the turnovers and purported demands for tax computed in accordance with the said appellate orders. 3.05 crores as against Rs. 5.100 crores, On June 18, 1988 the Company received eight purported notices all dated June 18, 1988 issued by the respondent, Commercial Tax Officer specifying the turnovers and purported demands for tax computed in accordance with the said appellate orders. On June 28, 1988 the company also received two notices under section 11B of the Bengal Act both dated 28th June, 1988 sent by the respondent Commercial Tax Officer to M/s. Contemporary Targett Ltd. and M/s. J. Thomas Co. Pvt. Ltd. The said purported notices under section 11 B were issued for the demands, as reduced in terms of the said appellate orders. 22. In the circumstances, in the writ petition the petitioners asked for quashing all the assessment orders, appellate orders and the proceedings initiated by the Certificate Officer, 24-Parganas as well as the attachments made. 23. Mr. Anindya Mitra, learned Counsel for the respondents has submitted that in this case the petitioner having preferred appeals against the assessment orders and the appeals having been partly allowed cannot at this stage move this Court under Article 226 of the Constitution. The petitioner should have preferred revisional applications and taken the recourse to the remedy provided under the Sales Tax Acts. In substance his contention is that existence of an alternative remedy in this case is an absolute bar to the exercise of the jurisdiction under Article 226 of the Constitution. He has relied on the decision of the Supreme Court in (1) Titagarh Paper Mills Co. Ltd. v. State of Orissa and Others reported in AIR 983 SC 603. In that case the Supreme Court dismissed petitions on the ground that the petitioners had equally efficacious alternative remedy by way of appeal to the prescribed authority. There the Supreme Court held as follows : "Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. There the Supreme Court held as follows : "Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in (2) Wolverhumpton New Water Works Co. v. Hawkesford, (1859) 6 CBNS 336 at p. 350 in the following passage :" "There are three classes of cases in which a liability may be established founded upon statute..................... ............................But there is a third crass viz. where all liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it..................................the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adheard to". The rule laid down in this passage was approved by the House of Lords in (3) Neville v. London Express Newspaper Ltd., 1919 AC 368 and has been re-affirmed by the Privy Council in (4) Attorney-General of Trinidad and Tobago v. Gordon Grant & Co., 1935 AC 532 and (5) Secretary of State v. Mask & Co., AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this rights, and has been followed by this Court throughout. It has also been held to be equally applicable to enforcement of rights, and has been followed by this rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petition in limine. Furthermore, the Act provides for an adequate safeguard against an arbitratory or unjust assessment. The petitioners have a right to prefer an appeal under sub-section (1) of section 23 of the Act subject to their payment of the admitted amount of tax as enjoined by the proviso thereto. As regards the disputed amount of tax, the petitioner have the remedy of applying for stay of recovery to the Commissioner of Sales tax.” 24. We shall first deal with their contention whether the writ petition is maintainable when the petitioner has a right to prefer an appeal under the relevant statute: 25. In (6) State of U.P. v. Mohammad Nooh reported in AIR 1956 SC 86 Supreme Court laid down general principles regarding exhaustion of alternative remedy. The facts are that an appeal was filed under a certificate of fitness granted by the High Court of Judicature of Allahabad under Articles 132(1) and 133(1)(c) of the Constitution. It was directed against the judgment and order of a Division Bench of the said High Court pronounced on March 10, 1952 in Civil Misc. Writ No. 7376 of 1951 quashing the departmental proceedings against the respondent and the orders passed therein, namely, the order for his dismissal passed by the District Superintendent of Police on December 21, 1948, the order of Deputy Inspector General of Police passed on June 7, 1949 dismissing his appeal against the order of his dismissal and the order of the Inspector General of Police dated April 22, 1950 rejecting his application for revision. The judgment of the High Court also directed that, if it were desired to proceed against the respondent, the tried should be presided over by a person other than the District Superintendent of Police who gave evidence in the case and also passed the order of dismissed against the respondent and that it should be in strict conformity with the relevant Police Regulations. 26. 26. Where the Supreme Court after refusing to the authorities observed : “It appears to us that there may conceivably be cases and the instant case is in point where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so parent & loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court’s sense of fair play the superior court may, we think quite properly exercise Its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or it recourse was had to it, confirmed what ex facie was a nullity or reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that.” 27. It may be mentioned that Supreme Court in Titagarh Paper Mills Co. Ltd. (Supra), distinguished the decision in the State of Uttar Pradesh v. Mohammad Nooh (Supra). 28. However in Titagarh Paper Mills Co. We say no more than that.” 27. It may be mentioned that Supreme Court in Titagarh Paper Mills Co. Ltd. (Supra), distinguished the decision in the State of Uttar Pradesh v. Mohammad Nooh (Supra). 28. However in Titagarh Paper Mills Co. Ltd (Supra), Supreme Court did not extend the principles laid down in Mohammad Nooh's case (Supra), and made the following observation after referring to the observations of the Supreme Court in Mohammad Nooh's case (Supra), set out hereinbefore and underlined by us : "We find no justification for extending the principles laid down in Mohammad Nooh's case (Supra), to a case like the present where there is an assessment made by the learned Sales Tax Officer under the Act. In (7) Raleigh Investment Company's Case, AIR 1947 PC 78 the Privy Council rightly observed that the phrase "made under the Act" described the provenance of the assessment; it does not relate to its accuracy in point of law. The use of the machinery provided by the Act not the result of that use, is the test. The decision in Mohammad Nooh's case (Supra), is clearly distinguishable as in that case there was total lack of jurisdiction. There is no suggestion that the learned Sales Tax Officer had no jurisdiction to make an assessment Nor can it be contended that he had acted in breach of rules of natural justice. There is no denying the fact that the petitioner was served with a notice of the proceedings under Rule 12(5) of the Rules and sub-section (4) of section 12 of the Act. The impugned orders clearly show that the petitioners were afforded sufficient opportunity to place their case. Merely because the learned Sales Tax Officer refused to grant any further adjournment and decided to proceed to best judgment it cannot he said that he acted in violation of the rules of natural justice. The question whether another adjournment should have been granted or not was within the discretion of the learned Sales Tax Officer and is a matter which can properly be raised only in an appeal under sub-section (1) of section 23 of the Act. The question whether another adjournment should have been granted or not was within the discretion of the learned Sales Tax Officer and is a matter which can properly be raised only in an appeal under sub-section (1) of section 23 of the Act. All that this Court laid down in Mohammad Nooh's case (Supra), is that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law; in other words, it does not bar the jurisdiction of the Court." 29. It is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective. adequate, alternative remedy. The limitation that before asking for relief under Article 226 the party must exhaust all alternative remedies is nowhere to be found in the Constitution. It is a rule of convenience and discretion rather than a rule of law. The existence of an alternative remedy does not oust the jurisdiction of the Court. In some illustrative cases the Supreme Court has directed the High Courts not to exercise the extra ordinary jurisdiction under Article 226 when an alternative remedy exists but in some other cases, it has been ruled that the High Court is competent to exercise jurisdiction notwithstanding the existence of an alternative remedy. Where questions of infringement of fundamental rights arise or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess and the orders and directions resuet in grave injustice to the party, the doctrine of consummation of statutory remedy may not be applicable. The exercise of power under writ jurisdiction is discretionary and may be exercised where the order made, on the face of it is erroneous, resulting in injustice. These are culled from (8) Shivram Poddar v. I.T.O. (1964) 51 ITR 823 (SC); (9) S T.O. v. Shiv Ratan G. Mohatto, AIR 1966 SC 142 : (1965) 16 STC 599 ; (10) Tata Engineering and Locomotive Co. Ltd. v. Asstt. Commercial Taxes, AIR 1967 SC 1401 :(1977) 19 STC 520. (11) Bhopal Sugar Industries Ltd Vs. D.P. Dube, S.T.O., AIR 1967 SC 549 : (1963) 14 STC 410 (SC) and (12) Gita Devi Agarwal v. C.I.T., (1970) 76 ITR 496 (SC). 30. Ltd. v. Asstt. Commercial Taxes, AIR 1967 SC 1401 :(1977) 19 STC 520. (11) Bhopal Sugar Industries Ltd Vs. D.P. Dube, S.T.O., AIR 1967 SC 549 : (1963) 14 STC 410 (SC) and (12) Gita Devi Agarwal v. C.I.T., (1970) 76 ITR 496 (SC). 30. In (13) Ram and Shyam Company v. State of Haryana, AIR 1985 SC 1147 the Supreme Court dealt with the question as to whether the existence of an alternative remedy ousts the jurisdiction of the High Court under Article 226 and held that the alternative remedy must be effective in the real sense of the term. It has been held that the doctrine of exhaustion of the alternative remedy is a rule of convenience and discretion rather than a rule of law. 31. There the Supreme Court observed as follows : “Before we deal with the larger issue, let me put out of the way the contention that found favour with the High Court in rejecting the writ petition. The learned Single Judge as well as the Division Bench recalling the observations of this Court in (14) Assistant Collector of Central Excise v. Jainson Hosiery Industries, (1979) 4 SCC 22 : AIR 1979 SC 1889 rejected the writ petition observing that the petitioner who invokes the extraordinary jurisdiction of the court under Art. 226 of the Constitution must have exhausted the normal statutory remedies available to him. We remain unimpressed. Ordinarily it is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather that rule of law. At any rate it does not oust the jurisdiction of the Court. In fact in the very decision relied - upon by the High Court in the State of Uttar Pradesh v. Mohammad Nooh (Supra), it is observed that there is with mandamus, that it will lie only where there is no other equally effective remedy. At any rate it does not oust the jurisdiction of the Court. In fact in the very decision relied - upon by the High Court in the State of Uttar Pradesh v. Mohammad Nooh (Supra), it is observed that there is with mandamus, that it will lie only where there is no other equally effective remedy. It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law a petition at the instance of person adversely affected by it would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal, lies to the higher officer or the State Government. An appeal in all Cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction merits." 32. On the facts of this case we are of the view that in the instant case the error, irregularity or illegality touching jurisdiction or procedure committed by the authorities under the Act are patent and loudly obtruseve and such infirmity cannot be obliterated or cured on appeal or revision. We are therefore unable to persuade to accept the contention of Mr. Mitra. 33. The main grievance of the petitioner Company in the writ application as well as before us is that no reasonable opportunity of being heard was given to the petitioner before the ex-parte assessment was made. The Commercial Tax Officer proceeded with a wrong premise. He alleged that the dealer failed to file the returns. It was absolutely untrue. Returns were filed in 1985. It was incumbent on the Commercial Tax Officer to look into the returns and thereafter, if the said returns were not found to be correct or complete, he should have asked the dealer to produce its books of accounts in support of the returns. Unfortunately on 7th December, 1987 the Commercial Tax Officer merely signed a Rubber stamped order mechanically which proceeded on the footing that the dealer did not file the returns were found in the file and submitted long before such notice was issued. The provisions of section 11 of the Bengal Finance (Sales Tax) Act, 1941 are mandatory and every dealer who is assessed under section 11 has the right of a reasonable opportunity of being heard. The provisions of section 11 of the Bengal Finance (Sales Tax) Act, 1941 are mandatory and every dealer who is assessed under section 11 has the right of a reasonable opportunity of being heard. The Supreme Court in the case of (15) Fedco (P) Ltd. Vs. S.B. Bilogrami & Ors. Reported in AIR 1960 SC 415 observed that “the requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given, the second is that this opportunity must be reasonable. Both these matters are justifiable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable”. On the facts of this case, which we have set out we are of the view that the petitioner did not get any reasonable opportunity of being heard in the assessment proceedings. 34. In this case, the Commercial Tax Officer issued the notice in Form VI or Form III as the case may be on 7th December, 1987 giving less than 20 days time after the date of issue of the notice. Rule 49 provides that at least 20 days “notice shall ordinarily be given to the dealer to comply with the directions contained in the notice issued in Form VI and the corresponding Form III under the Central Sales Tax Act. The word “ordinarily” suggests that unless there are extra-ordinary circumstances the said direction of the Rule has to be followed. There is no evidence in fact of extra-ordinary nature and/or circumstances whatever for issue of the said notice by giving less than 20 days time as provided under Rule 49 of the Bengal Finance Sales Tax Rules. No extra-ordinary circumstance in this case have been indicated. The assessments were not getting barred by limitation. At least another 2 years were left before such assessment would have been barred by limitation. It is true that Rule 49 is not mandatory. It was not intended either to be invariable or rigid. Unless prejudice has resulted to the dealer proceedings initiated by a notice not giving a period of clear 20 days to show cause are not liable to be set aside. But this aspect of the matter is linked with the other question of refusal of the adjournment. It was not intended either to be invariable or rigid. Unless prejudice has resulted to the dealer proceedings initiated by a notice not giving a period of clear 20 days to show cause are not liable to be set aside. But this aspect of the matter is linked with the other question of refusal of the adjournment. The contention of the dealer that because of insufficiency of the time the dealer was unable to submit the documents etc. The resort must be made to the extra-ordinary when the ordinary does not succeed. But in this case there is no ground for resorting to the extra-ordinary procedure by not giving 20 days notice. On the facts of this case it must be held that there has been a violation of the principles of natural justice. The assessment proceedings were completed in hot-haste when it was not lit all necessary. Had the respondents been anxious for realisation of taxes, they should not have waited for more than 2 years after the returns had been filed to initiate the proceedings. 35. The Commercial Tax Officer assumed jurisdiction in this case by issuing notice on the basis that no return has been filed by the dealer while, in fact, the petitioner filed its returns on 15th February, 1985 within the prescribed time and as prescribed in the Certificate of Registration. The Registration Certificate lays down that the dealer shall file its return within 60 days from the date of accounting year. The notice was issued on wholly erroneous basis. Had not the Commercial Tax Officer proceeded on the footing that the returns have not been filed perhaps he would not have completed the assessment ex parte. His vision was blurred by the alleged fact that the returns have not been filed. The notice is bad because it completely mislead the assessee. That apart, the assessee was not required to answer the said notice. The assessee could have ignored the said notice because assessee was not a defaulter in filing the return. If it was not a defaulter in filing the return the requisition made on the basis of the alleged default in filing of the returns could have been overlooked by the dealer. The Commercial Tax Officer assured jurisdiction on the ground which is non-existent. 36. Now we turn to the question of refusal to grant adjournment. If it was not a defaulter in filing the return the requisition made on the basis of the alleged default in filing of the returns could have been overlooked by the dealer. The Commercial Tax Officer assured jurisdiction on the ground which is non-existent. 36. Now we turn to the question of refusal to grant adjournment. By a letter dated 22nd December, 1987 the Accountant of the dealer prayed for an adjournment of the date of bearing; which, Inter alia, read as follows :- "Re: Case No. 96/0/87-88 to 19/0/87-88 under C.S.T. Act, 1956. Reference your notice in above referred case, we beg So state that we have filed Sales Tax Returns under the C.S.T. Act, 1956 for the periods coinciding with our Accounting periods as permitted by your goodself in our Certificate of Registration dated the 15th June, 1984. The period of our returns submitted to you and the dates the same were received by you are indicated hereinbelow for your ready reference. Period for which return has been filed Date of Filing 1.1.84 to 31.12.84 15 months: accounting 15.2.85 1.1.85 to 31.3.85 period 1984-85 18.6.85 1.7.85 to 31.3.86 Accounting period 1985-86 14.4.86 1.4.86 to 31.12.86 9 months : Accounting 22.7.87 year 1986 1.1.87 to 31.3.87 3 months return : because 22.7.87 certificate of registration was not changed Your goodself will appreciate that as the returns for the respective periods were filed as per the Certificate of registration; the notice requiring returns for different period may kindly be vacated. Further as our Sales Tax Advocate is presently not in station, we request your good self to extend the date of healing by a week for which act of kindness, we shall ever remain great to you.” 37. Two contentions have been raised in the said letter-firstly that the allegation that the returns have not been filed are not correct and accordingly, the notice should be withdrawn and secondly that the Sales Tax Advocate was not present and as such prayer was made for adjournment for only one week. The Commercial Tax Officer did not deal with the first aspect of the matter in his assessment order at all. He was fully aware that the returns had been filed. But he did not recall the notice issued on 7th December, 1987. On the contrary, on 22nd December, 1987 he proceeded to complete the assessment ex parte. The Commercial Tax Officer did not deal with the first aspect of the matter in his assessment order at all. He was fully aware that the returns had been filed. But he did not recall the notice issued on 7th December, 1987. On the contrary, on 22nd December, 1987 he proceeded to complete the assessment ex parte. The dealer for the first time wanted an adjournment for a week only on the ground that its advocates was not available. The said adjournment was not a long one. The Commercial Tax Officer stated in assessment order as follows :- “This case is fixed for hearing today i.e., 22.12.87. Form VI was served properly on 7.12.1987, asking the dealer to appear before the undersigned for assessment on 22.12.87. None appeared on 22.12.87. The dealer has prayed for extension of time under his Memo No. SPII/2212/87 dated 22.12.87. I have gone through the petition for adjournment and the grounds for prayer for adjournment is not tenable. Under this circumstances, I do not think that any fruitful purpose is served on allowing further adjournment. As such, I am going to assess the dealer ex parte to the best of my judgment.” 38. The Commercial Tax Officer deliberately refused to give any adjournment without disclosing any reason therefor. Firstly, he stated that the notice that the petitioner did not file the return and accordingly it was called upon to produce the bock of accounts and documents etc. This fact is contrary to the evidence on record. We found from the file of the Commercial Tax Officer that the return had been filed long before the Notice in Form VI was issued. We have already indicated the different dates when the returns have been filed in the office of the Commercial Tax Officer. Inspite of that, he proceeded with the assessment as if no return was filed. Secondly, the notice which had been issued on 7th December, 1987 is the only notice issued to the dealer. Prior to that no other notice was issued and the question of assessee's appearing before the said Commercial Tax Officer did not arise. But nonetheless in his assessment he said that 'no further' adjournment could be given to the dealer. We do not know how could the question of further adjournment arise when no adjournment earlier was sought for and no adjournment was. In fact, given to the dealer. But nonetheless in his assessment he said that 'no further' adjournment could be given to the dealer. We do not know how could the question of further adjournment arise when no adjournment earlier was sought for and no adjournment was. In fact, given to the dealer. As a matter of fact, the proceeding initiated only on 7th December, 1987 and the first date of bearing was fixed on 22nd December, 1987. Accordingly, the question of granting any further adjournment did not arise. The assessments were not getting time barred and that apart the dealer was not a defaulter in filing the returns. The Commercial Tax Officer acted not only in the breach of principles of natural justice but also on grounds which are not sustainable on the evidence on record. 39. Adjournments are generally allowed for sufficient cause on the principles of natural justice, equity and good conscience. In refusing an adjournment a quashi judicial authority must act fairly and reasonably in the matter. It is not the case here that the assessee was a habitual defaulter and after obtaining adjournment did not appear at all and accordingly the adjournment could not be granted. Apart from the fact that no ground has been given by the Commercial Tax Officer, he also acted improperly in saying that no further adjournment could be given while it was the first time the dealer asked for an adjournment for only a week. The object of the principles of natural justice is to prevent failure of natural justice. This case has to be considered in the light of the facts which we have already set out hereinbefore. The princip1es of natural justice must be read in the provisions unless there is a clear mandate to the contrary. The adjournment should not have been lightly refused without going into the facts and circumstances of the case and without considering the prayer of the Accountant of the petitioner as contained in the letter dated 22nd December, 1987. This has resulted in failure of natural justice and accordingly any assessment is made in pursuance of the notice must be held to be bad. 40. Even assuming that the adjournment was refused properly, the question is whether the best judgment assessment that has been made can be sustained. This has resulted in failure of natural justice and accordingly any assessment is made in pursuance of the notice must be held to be bad. 40. Even assuming that the adjournment was refused properly, the question is whether the best judgment assessment that has been made can be sustained. In Taxation Laws it is now well-settled that in making the best judgment assessment the Commercial Tax Officer must not act vindictively or dishonestly and capriciously because he must exercise his judgment in the matter. He must act what he honestly believes to be a fair estimate of the proper figure of assessment and for this purpose he must take into consideration the local knowledge and repute in regard to the assesse's circumstances and his own knowledge of the previous return, by any assessments of the dealer and all other matters which he thinks would assist him in arriving at a fair and proper estimate. Though there must be necessarily some guess work in the matter, it must be honest guess work. He had no arbitrary authority to assess at any future he likes. Although he may not be bound by strict judicial principles, he should be guided by equity, the rules of justice, fair play equity and good conscience. The best judgment assessment is not an alternative to the penalty for non-compliance. It cannot be made capriciously in utter disregard of the materials on records. Has the Commercial Tax Officer exercised his judgment in this case? Has he taken into account the comparable cases or other relevant facts and circumstances in arriving at the figure of turnover? Has he proceeded on the settled and invariable principles of justice? Our answers are in the negative. He has made an wild guess which has no reasonable nexus to the available materials and the circumstances. There is nothing in the assessment orders which would show that any intelligent and well-grounded assessment has been made. He proceeded on conjecture, surmise and arrived at an astronomical figure of turnover. It is also required that the Commercial Tax Officer must disclose the basis on which the best judgment assessment is made. Unless the reasons are given for arriving at a particular turnover the mental process leading to the assessment and the figure cannot be ascertained. 41. He proceeded on conjecture, surmise and arrived at an astronomical figure of turnover. It is also required that the Commercial Tax Officer must disclose the basis on which the best judgment assessment is made. Unless the reasons are given for arriving at a particular turnover the mental process leading to the assessment and the figure cannot be ascertained. 41. In the order of assessment he made the following observation :- "The dealer is a manufacturer of tea having Tea garden at Mateli, P. & T.O., Jalpaiguri, West Bengal. I have gone through the return submitted by the dealer for the period 31.12.84. And I estimate the sale for the period under assessment at Rs. 2,00,000,00 to the best of my judgment. In absence of any books of accounts the entire amount of Rs. 2,00,000,00/- is taxed at the rate of 8%." 42. The only fact is that the dealer is a manufacturer of tea who filed a return. On that fact alone the estimate could be made. 43. The Supreme Court in (16) Raghubar Mandal Harihar Mandal v. State of Bihar reported in 8 STC 770 considered a case where an assessment was made after rejecting the books of account of the dealer. There the question before the Supreme Court was whether the Sales Tax Officer was entitled under the Act to make assessment on any figure of gross turnover without giving any basis to justify the adoption of that figure. The High Court answered that question in favour of the Revenue. There the Supreme Court held as follows; "The point for our consideration is can the assessing authority, purporting to act under section 10(2)(b) of the Act, assess the amount of tax due from a dealer more or less arbitrarily or without basing the assessment on any materials whatsoever? In the question referred to the High Court, the expression used is made an assessment on any figure of gross turnover without any basis to justify the adoption of that figure”. The expression is perhaps a little ambiguous, but read in the context of the statement of the case, the question can only mean this can the assessing authority adopt a figure of gross turnover by pure guess and without referring to any materials on which the figure is based? It is clear to us that, understood in that sense, the High Court has answered the question incorrectly. " 44. It is clear to us that, understood in that sense, the High Court has answered the question incorrectly. " 44. The Supreme Court then proceed to consider the judgment in the case of (17) Dhakeswari Cotton Mills Ltd. Vs. Commissioner of Income-Tax, West Bengal reported in 26 ITR 775 and quoted the following observation from the said judgment :- “As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the Income-tax Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends because it is equally clear that in making the assessment under sub-section (3) of section 23 of the Act, the Income Tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23(3).” 45. The Supreme Court also noted what the Commercial Tax Officer did in that case and observed as follows :- “Having rejected the returns and the books of account, the assessing authorities proceeded to estimate the gross turnover. In estimating the gross turnover, they did not refer to any materials at all. Let us take, for example, the assessment order for the quarter ending 30th June, 1946. The Sales Tax Officer said: "I reject his irregular account and estimate a gross turnover of Rs. 3,00,000 for the quarter and assess him on Rs. 2,94,000 to pay tax of Rs. 4,593-12-0". These and similar order do not show that the assessment was made with reference to any evidence or material; on the contrary, they show that having rejected the books of account, the assessing authorities indulged in pure guess and made an assessment without reference to any evidence or any material at all. This the assessing authorities were not entitled to do under clause (b) of sub section (2) of section 10 of the Act." 46. In (18) Jahgru Shaw and Others v. Commissioner of Commercial Taxes and Others reported in (1966) 17 STC 130 , this court considered the validity of an ex parte assessment under the Sales Tax Act. This the assessing authorities were not entitled to do under clause (b) of sub section (2) of section 10 of the Act." 46. In (18) Jahgru Shaw and Others v. Commissioner of Commercial Taxes and Others reported in (1966) 17 STC 130 , this court considered the validity of an ex parte assessment under the Sales Tax Act. It that case the relevant portion of the best judgment assessment order was couched in the following language ;- "I find from records that the assessment of the proceeding years also had to he completed in the absence of books of accounts due to dealer's failure to produce the same on the dates of bearing. In spite of the ex parte assessment, the dealer does not care to appear with books of accounts on the date of hearing and as such it appears to me that he finds such accounts made in the absence of books of accounts to his advantage. Taking this into consideration, I estimate the gross turnover of the dealer at Rs.1,80,000/- and the taxable turnover at Rs.1,20,000/-." 47. There the Court after referring to decision of the Supreme Court in Raghubar Mandal Harihar Mandal (Supra), and the Privy Council decision in the case of (19) Income Tax Commissioner v. Badridas Ramari Shop reported in (1937) 5 ITR 170 observed there :- "No doubt it is true that when the returns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess but the estimate must be related to some evidence or material and it must be something more that mere suspicion. To use the words of Lord Russel of Killowen again, be must make what be honestly believes to be a fair estimate of the proper figure of assessment and for this purpose he must taken into consideration such materials as the assessing officer has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate. In the case under our consideration, the assessing officer did not do so, and that is where the grievance of the assessee arises." 48. In the case under our consideration, the assessing officer did not do so, and that is where the grievance of the assessee arises." 48. The Court held that the said ex parte assessment order certainly failed to conform to the minimum requirements of best judgment assessment and accordingly the said order was quashed under Article 226 of the Constitution. 49. In (20) State of Kerala v. C. Velukurry reported in (1966) 17 STC 465 , the Supreme Court considered the best judgment assessment made under the Travancore Cochin General Sales Tax Act. There the Supreme Court held :- "Under section 12(2)(b) of the Act, power is conferred on the assessing authority in circumstances mentioned thereunder to assess the dealer to the best of his judgment. The limits of the power are implicit in the expression "best of his judgment" judgment is a faculty to decide matters with wisdom truly and legally. Judgment does not depend, upon the arbitrarily caprice of a judge, but on settled and invariable principles of justice. Though there is an element of guess-work in a “best judgment assessment”. It shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case Though sub-section (2) of section 12 of the Act provides for a summary method because of the default of the assessee, it does not enable the assessing authority to function capriciously without regard for the available material. Can it be said that in that in the instance case the impugned assessment satisfied the said tests? From the discovery of secret accounts in the head office, it does not necessarily follow that a corresponding set of secret accounts were maintained in the branch office, though it is probable that such accounts were maintained. But, as the accounts were secret, It is also not improbable that the branch office might not have kept parallel accounts, as duplication of false accounts would facilitate discovery of fraud and, it would have been thought advisable to maintain only one set of false accounts in the head office. Be that as it may the maintenance of secret accounts in the branch office cannot be assumed in the circumstances of the case. That apart, the maintenance of secret accounts in the branch office might lead to an inference that the accounts disclosed did not comprehend all the transactions of the branch office. Be that as it may the maintenance of secret accounts in the branch office cannot be assumed in the circumstances of the case. That apart, the maintenance of secret accounts in the branch office might lead to an inference that the accounts disclosed did not comprehend all the transactions of the branch office. But that does establish or even probabilise the finding that 135 per cent or 200 per cent or 500 per cent of the disclosed turnover was suppressed. That could have been ascertained from other materials. The branch office had dealings with other customers. Their names were disclosed in the accounts. The accounts of these customers or their statements could have afforded a basis for the best judgment assessment. There must also have been other surrounding circumstances, such as those mentioned in the Privy Council’s decision cited Supra. But in this case there was to material before the assessing authority relevant to the assessment and the impugned assessments were arbitrarily made by applying a ratio between disclosed and concealed turnover in one shop to another shop of the assessee. It was only capricious surmise unsupported by any relevant material. The High Court, therefore, rightly set aside the orders of the Tribunal.” 50. Reference may be made to the decision in (21) Bachhraj Baid and Another Vs. Commercial Tax Officer and Others reported in (1975) 36 STC 101 . In that case the Commercial Tax Officer before the ending of the Fourth quarter on 31st December, 1973 Issued a notice in Form VI on 8th November, 1973, fixing the date of hearing of the assessment. In January, 1974 the petitioners appeared before the Commercial Tax Officer and asked for adjournment as they could not submit the return for the third quarter ending on 30th September, 1973 and could not make the accounts ready with detailed statement of cash sales and hire purchase sales on completed basis. Moreover on account of a fire break out causing serious damages to the books of account, the petitioners could not produce the books of account on 9th February, 1974. The petitioners asked for further time but their prayer was disallowed. Thereafter for the quarter ending September, 1973, Respondent No.1 estimated the gross turnover at Rs.34,00,000/-. 51. Moreover on account of a fire break out causing serious damages to the books of account, the petitioners could not produce the books of account on 9th February, 1974. The petitioners asked for further time but their prayer was disallowed. Thereafter for the quarter ending September, 1973, Respondent No.1 estimated the gross turnover at Rs.34,00,000/-. 51. There this Court after considering the decision of the Supreme Court in the case of Raghubar Mandal Harihar Mandal (Supra), held that the Commercial Tax Officer did not state any reason whatsoever in support of his estimate of gross turnover of Rs.34,00,000/- accordingly the order of assessment was not sustainable. 52. Reference may also be made to the judgment of Sabyasachi Mukherjee, J. (as His Lordship then was) in the case of Sathela Managing & Manufacturing Corpn. Ltd. This is also a case under the Sales Tax Act where the best judgment assessment was challenged under Article 226 of the Constitution. How the best assessment was made in the case was noted by the Court in the following words ; “In the instant case, the respondent assessing authority has merely observed that the petitioner runs a colliery. From the fact that it is a colliery business and that the demand for coal was high, he has estimated the gross turnover. The exemption under section 5(2)(a)(v) of the Act was also without any basis. The assessing authority did not refer to any past records of the dealer or the amount or the quantum as well as the business done by the dealer in the past years. He has also not referred to any comparable sales by any comparable dealer in the same region or the locality. He has also made no attempt to call for the books or papers, if any, from the coal mines authority. In my opinion, the assessing authority has made no attempt to make the assessment to the best of his judgment. In the aforesaid view of the matter. I am of the opinion that the said assessment is liable to be set aside on the ground that it is whimsical and arbitrary. The assessment order is, therefore, set aside." 53. The Court observed as follows :- "This was a best judgment assessment. The respondent assessing authority was entitled to make a best judgment assessment in the facts and circumstances of the case. The assessment order is, therefore, set aside." 53. The Court observed as follows :- "This was a best judgment assessment. The respondent assessing authority was entitled to make a best judgment assessment in the facts and circumstances of the case. But the best judgment assessment does not permit an assessing authority to make an arbitrary or whimsical assessment. There must be basis for the said assessment and the basis of such assessment must have some rational nexus to the assessment made. This position in law is well-settled by several decisions of the Judicial Committee, the Supreme Court and the High Courts." The best judgment assessment was therefore set aside" 54. In our view the principles laid down by the aforesaid decisions will equally apply to the facts of this case. In making the assessment the Commercial Tax Officer did not apply his mind or any judgment at all. There was no basis for such estimate at all. Neither was there any material for making huge addition to the turnover, nor was there any scope for such illegal additions. The ex parte assessments or best judgment assessments are liable to be set aside and quashed. 55. Mr. Mitra then contends with reference to a decision of the Supreme Court in M/s Gojen Brothers (P) Ltd., (infra), that order of the Commercial Tax Officer has merged in the order of the appellate authority and as such the operative order is of the appellate authority which cannot be said to be in violation of the principles of natural Justice. On the contrary appellant has got ample opportunity before the appellate authority to challenge the orders passed by the Commercial Tax Officer. Accordingly it can have any further grievance even if this under of the Commercial Tax Officer was illegal. 56. On the contrary appellant has got ample opportunity before the appellate authority to challenge the orders passed by the Commercial Tax Officer. Accordingly it can have any further grievance even if this under of the Commercial Tax Officer was illegal. 56. In (22) Gojen Brothers (P) Ltd. v. Shri Ratan Lal Singh reported in AIR 1974 SC 1380 the Supreme Court observed : "In cases were the decree of the trial Court is carried in appeal and the appellate Court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate Court and not of the trial Court." "The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate Court is that in such cases the decree of the trial Court is merged in the decree of the appellate Court. In course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like Revisions and even to proceedings before quasi-judicial and executive authorities." 57. One of the decisions referred to by the Supreme Court is in (23) Commissioner of Income Tax, Bombay v. M/s Amritalal Bhoogilal & Co. reported in AIR 1958 SC 868 . The Supreme Court discussed the Gojea Bros. the said decision in paragraph 20 as follows : "The question which arose for decision was whether the order passed by the Income Tax Officer allowing the registration of a firm merged in the order passed by the appellate Assistant Commissioner in the appeals filed by the firm against the order of assessment. If it did, the Commissioner of Income Tax could not in the exercise of his revisional powers under section 33B(1) set aside the order of registration passed by the Income Tax Officer. This Court held on the merits of the matter that though the appellate order of the Appellate Asstt. Commissioner was the only order which was valid and enforceable in law what merged in the appellate order was the Income-tax Officer's under appeal and not his order of registration which was not and could have become the subject-matter of an appeal before the appellate authority. Commissioner was the only order which was valid and enforceable in law what merged in the appellate order was the Income-tax Officer's under appeal and not his order of registration which was not and could have become the subject-matter of an appeal before the appellate authority. The position in regard to the doctrine of merger was stated thus by Gajendragadkar, J. who spoke for the Court : "There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation of affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision along which subsists and is operative and capable of enforcement." 58. It has been contended by Shri Anindya Mitra, the learned Counsel appearing for the respondents that even assuming the assessment orders were illegally made by the Commercial Tax Officer, the petitioner having preferred appeals against such orders and the appellate authority having confirmed the order of the Taxing Officer with certain modifications, the original orders have merged with the appellate orders. Accordingly the appellate orders will subsist and will be operative and effective. He contends that even if the orders of the Taxing Officer are set aside, it will have no effect as the effective and subsisting order is the order of the appellate authority. He also submitted that the petitioner cannot have any grievance against the appellate orders as such orders have been made after giving the petitioner reasonable opportunity of being heard. He has also submitted that the Court at this stage cannot set aside the orders passed by the authorities under the Act and only course open for the assesse is to prefer revisional application or appeal as the case may before the higher authorities. 59. We are, however unable to accept these contentions. He has also submitted that the Court at this stage cannot set aside the orders passed by the authorities under the Act and only course open for the assesse is to prefer revisional application or appeal as the case may before the higher authorities. 59. We are, however unable to accept these contentions. In a case where an assessment is made in accordance with law and an appeal is preferred against such order and the appellate authority confirms or reduces the assessment, it is the appellate decision which will be effective and enforceable. A Taxing Officer is under on obligation to act in accordance with the law under the provisions of the Act and Rules and in compliance with the principles of natural justice. Where the order is contrary to the essence of justice and fair-play, where the order of the Taxing Officer is vitiated because of non-compliance with the minimal requirement of the principles of natural justice, on being in violation of the provisions of Act and the rules whether mandatory or directory. where the order of the Taxing Officer is ex facie bad and illegal not only because the order was made ex parte, but because the order is not based on the best of his judgment, in such a case infirmity or illegality of the order of the Taxing Officer cannot be cured by the appellate authority If there is nullity inherent in the impugned order, the appellate authority cannot cure that nullity. The aggrieved dealer has an option either to prefer appeal or to invoke jurisdiction under Article 226 of the Constitution. 60. Reference may be made to a decision in the case of (24) Leary v. National Union of Vehicle Builders reported in (1970) 2 All ER 713. A question that arose in that case whether the denial of the natural justice by the First Tribunal could be cured by sufficiency of natural justice by the First Tribunal could be cured by sufficiency of natural justice before in appellate tribunal. Admittedly the first tribunal contraven the principle of natural justice, but it was contended that such defect had been cured by the subsequent hearing given at the appellate stage where the rules of natural justice had been sufficiently complied with. 61. Magarry. J said that a decision made by an appellate court in such circumstances would equally be void. Admittedly the first tribunal contraven the principle of natural justice, but it was contended that such defect had been cured by the subsequent hearing given at the appellate stage where the rules of natural justice had been sufficiently complied with. 61. Magarry. J said that a decision made by an appellate court in such circumstances would equally be void. He asked the question “If an man has never had a fair trial by an appropriate trial body, is to open to an appellate body to discard its appellate functions and itself give the man of the fair trial that he has never had”? And answered it by saying that no such doctrine exists. One of the reasons given by him for his conclusion was :- “If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him in subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity : and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all event, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.” 62. In our view the principles laid down in the aforesaid judgment would equally apply to the facts of this case. As a general rule, at all event, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.” 62. In our view the principles laid down in the aforesaid judgment would equally apply to the facts of this case. The appellate authority even though had no doubt given the opportunity of hearing to the petitioner, but that will not cure the infirmity in the order of the Taxing Officer. Even otherwise in this case the appellate order cannot also be sustained. The appellate authorities held this :- “The first contention of the petitioner was that the notices issued in Form VI and Form III respectively were issued with the C.T.O.’s presumption that returns were not filed, although the petitioner dealer filed the return. A preliminary objection embodied in the letter dated 22.12.87 was raised against issue of such notices, I find on perusal of case records that one return for the year ended 31.3.85 was filed on 18.6.85 under the B.F. (S.T.) Act, 1941. Return for quarter ending 30.9.85 as disclosed by the petitioner dealer was filed on 6.11.85. Similarly another return for the quarter ending 30.6.85 was filed on 6.11.85 and the return for the year ending 31.3.86 was filed on 14.4.86. The dealer’s previous accounting year was English Calender Year and as per prayer of the dealer accounting year was changed from English Calender year to financial year by the Commercial Tax Officer as per his order dt. 19.11.85. Hence assessment proceeding for the period 1.1.85 to 18.11.85 and another for the period 19.11.85 to 31.3.86 were initiated. As no return for the said period was filed by the dealer, the Commercial Tax Officer issued the notice holding that no return was furnished by the dealer. In view of such background I do not find that the C.T.O. committed wrong in issuing the notices. Under both the acts by stating that no return were furnished. Next contention of the petitioner was that the Commercial Tax Officer made ex parte assessment without giving the petitioner dealer reasonable opportunity of being heard. The notices were issued fixing date of hearing on 22.12.87. A letter dated 22.12.87 signed by one person who disclosed his identity as Accountant was filed. Next contention of the petitioner was that the Commercial Tax Officer made ex parte assessment without giving the petitioner dealer reasonable opportunity of being heard. The notices were issued fixing date of hearing on 22.12.87. A letter dated 22.12.87 signed by one person who disclosed his identity as Accountant was filed. But the signatory was not authorised in writing to act and submit on behalf of the petitioner dealer as an agent of the petitioner. The power of attorney in favour of Shri Nirmal Kr. Saraf, Accountant was effective from 31.12.87. The signatory in the petition date 22.12.87 was stated to be Shri Nirmal Kr. Saraf, Accountant. Hence at the material point of time Shri Saraf could not be held as an agent of the dealer as defined in Rule 1(2)(a) of the B.S.T. Rules, 1941. The petition cannot therefore be held as that of the petitioner dealer. As the dealer did not file petition seeking for time through a principal officer or any other employee duly authorised in writing, the Ld. C.T.O. had no other option but to make the assessment ex parte. In doing so nothing wrong was committed on the part of the assessing Office." 63. As indicated earlier, the Commercial Tax Officer held that the accountant of the Company appeared and submitted the petition for adjournment. The Commercial Tax Officer refused the adjournment on ground which is not tenable. 64. We have already dealt with this aspect of the matter. Strangely enough the Asstt. Commissioner being the appellate authority in sustaining the order of the Commercial Tax Officer held that the accountant of the company was not an authorised representative of the dealer. That is not the ground on which the Commercial Tax Officer rejected the application for adjournment. He cannot put gloss on the order passed by the Commercial Tax Officer. In any event, the Accountant of a company as a Principal Officer can always appear before the Commercial Tax Officer. It is a deliberate attempt to regularise what was otherwise illegal and irregular. The Assistant Commissioner rejected the contention that the notice of assessment given to the dealer without giving 20 days time was bad. In any event, the Accountant of a company as a Principal Officer can always appear before the Commercial Tax Officer. It is a deliberate attempt to regularise what was otherwise illegal and irregular. The Assistant Commissioner rejected the contention that the notice of assessment given to the dealer without giving 20 days time was bad. He also ignored completely that although in the notice it was stated that the returns were not filed but in the assessment order the Commercial Tax Officer himself admitted that returns have been filed and he had taken into the returns. It is thus evident that the appellate authority proceeded on the footing that the notice in Form VI did not suffer from any infirmity. 65. This order of the appellate authority amply demonstrates that the appellate authority supported the reasoning of the Taxing Officer in refusing the adjournment and making “best judgment assessments”. The Principal question before him was whether reasonable opportunity was given to the petitioner or whether the estimate made was arbitrary or not. He did not at all consider whether the ex parte assessment order was made without any basis whatsoever or whether such assessment could be called a best judgment assessment at all. The appellate authority has fallen in error in confirming orders of the Taxing Officer, without deciding the infirmity of the said orders. 66. Thereafter he considered whether the estimate was rightly made by the Taxing Officer. He did not accept the accounts as correct and complete. According to him the figures reflected in the statement could not be relied upon. The reduced gross turnover estimated by the Commercial Tax Officer to a negligible extent without assigning any reason He held : "There is room for rejection of the same and estimation of the gross turnover. But the gross turnover estimated by the Ld. C.T.O. seems to me a bit high." 67. If according to him the estimate made by the Commercial Tax Officer was high, so also the estimate made by him. He only reduced the gross turnover to negligible extent only to demonstrate that he applied his mind to the facts of the case. He proceeded arbitrarily in the gross turnover to a negligible extent. The right Course for him was to set aside the assessments and directed the Taxing Officer to make fresh determination which he did not do. He only reduced the gross turnover to negligible extent only to demonstrate that he applied his mind to the facts of the case. He proceeded arbitrarily in the gross turnover to a negligible extent. The right Course for him was to set aside the assessments and directed the Taxing Officer to make fresh determination which he did not do. That would have served the interest of justice and fair play. In our view the appellate authority acted arbitrarily in not setting aside the order of the Commercial Tax. Officer and directing him to make fresh assessment. We must also observe that the Commercial Tax Officer made ex parte assessment without there being any basis and if a dealer does not get justice either before the Taxing Officer or the Appellate Authority, the result would be that the dealer would be saddled with huge liability as had been done in the instant case. If the entire sale proceeds and bank accounts are attached for the purpose of recovery of demands raised pursuant to the illegal orders, the industry has to come to a standstill. That is what has happened in this case. The Taxing Statute does not warrant that the alleged tax evaders would be penalised without giving them any opportunity of hearing. Had the minimum requirement of natural justice and fair play been complied with, we would not have interferred with this case. But having regard to the fact that the Commercial Tax Officer was bent upon in making ex parte assessments without complying with the principles of natural justice. We cannot sustain either the orders of the Commercial Tax Officer or the orders passed by the Appellate Authority. Strict penal measures have been incorporated to deal with the tax evaders. There is no provision to penalise the tax gatherers where unfair and unreasonable assessments are deliberately or vindictively, malafide or motiveledly made at an astronomical figure and a dealer is visited with Civil and Criminal consequences in view of the demands raised pursuant to such assessments. In such cases the provisions should have been made for dealing such officers in appropriate manner so that the responsibility may be fixed on them for such excessive or arbitrary assessment if such assessment is not ultimately sustained by the Court on the Tribunal. 68. Before we part with this case we have to deal with one other contention. In such cases the provisions should have been made for dealing such officers in appropriate manner so that the responsibility may be fixed on them for such excessive or arbitrary assessment if such assessment is not ultimately sustained by the Court on the Tribunal. 68. Before we part with this case we have to deal with one other contention. The contention is that whether at this stage we should dispose of the entire matter including the writ petition. In deciding whether we would give or refuse any relief to the appellant, we had to go into the merits or controversy. Elaborate arguments have been made and accordingly we thought fit to dispose of all the contentions which would not only dispose of the appeal but also the writ petition. 69. Reference may be made to the case (25) Chanda Jhunjhunwalla & Anr v. State of West Bengal & Ors. reported in 89 CWN 924 the High Court observed as follows :- "In the case of (26) Woodfard & Anr. v. Smith & Anr. reported in (1970) 1 All ER 1091 at 1093, Megarry, J. (as His Lordship then was), said : "I do not think that there is anything to present the court in a proper case from granting on motion substantially all the relief claimed in the action. It is true that in Dodd v. Amalgumaled Marine Workers' Union, it was said in the Court of appeal that it was not the 'usual practice' or the 'general rule of practice' to grant on motion all the relief claimed in the action. But this language is general rather than absolute, the judgments are very brief, No reasons are given, and there have been later decisions. Thus in Bailey (Multa) Ltd. Vs. Bailey, Lord Denning, M.R. Flatly said that there was ‘no such rule’. In this, he based himself on what Sargant. L.J. had in 4-G v. Stockton-on-Tees Corpn., where there is what I may call a reasoned demolition of the supposed rule, the basis of which seems to have been an objection to trying the same point twice over. In the Bailey case Harman, L.J. referred to the supposed rule as a theory had in his view ‘long been exploded' Heywood Vs. BDC Properties Ltd. & Booker v. James. In the Bailey case Harman, L.J. referred to the supposed rule as a theory had in his view ‘long been exploded' Heywood Vs. BDC Properties Ltd. & Booker v. James. I have ventured to refer to those authorities (which were not discussed before me, since there was no need) because it is time that the passage in the Supreme Court Practice, 1970 which I have read received the firm touch of a revising hand. Plainly in the present case the objection which Counsel for the defendants raised but did not press is no obstacle to granting the injunction sought. In my judgment, looking at the case as a whole, there are no grounds on which the Court should refuse to grant an injunction." 70. For the reasons aforesaid, this application is allowed so also the writ petition. The assessment orders made under the Bengal Finance (Sales Tax) Act, 1941 and under the Central Sales Tax Act, 1956 for the period from 19.4.84 to 31.3.86; eight appellate orders all dated 10.6.88 the certificate proceedings under the Bengal Public Demands Recovery Act, 1913 bring Certificate Case Nos. 69 to 76 are all set aside and quashed. The Commercial Tax Officer shall proceed to make fresh assessments in accordance with law after giving the petitioner at least three weeks time to comply with any requisition that may be made by him. All such requisitions shall be served on the advocate-on-record of the petitioner. Unless it is absolutely essential for the ends of justice, the commercial Tax Officer may not allow adjournments and the assessment shall be completed in any event within three months from the date of communication of this order. 71. The orders of attachment are also set aside subject to the following terms. 72. The Special Officers, who have been appointed shall continue until the fresh assessments in accordance with the directions contained in the judgment are completed. The Special Officers shall hold the sum of Rs.10 lacs until fresh assessments are made. In the event if any demand is raised pursuant to the assessments to be made by the Commercial Tax Officer afresh, the Commercial Tax Officer shall notify to the Special Officers the demand if the demand is more than 10 lacs or if the demand is less than 10 lacs then such amount shall be paid or may be sufficient to satisfy the demand. The Special Officer shall make payment to the extent of Rs.10 lacs towards such demands subject to any order that may be obtained by the petitioner from the Appellate Authority, if any adverse order is made against the petitioner. In the event no intimation is received by the Special Officers from the Commercial Tax Officer within four months from the date of communication of this order then the Special Officers shall be at liberty to refund the said sum of Rs.10 lacs held by them, to the appellant. The Special Officers shall continue subject to the order that may be made in the connected appeal. 73. Each of the Special Officers shall be entitled to a remuneration of 100 GMs. per month to be retained out of the funds lying in their hands. 74. The Commercial Tax Officer and the Assistant Commissioner of Commercial Taxes shall pay costs personally assessed at 100 GMs and for the manner in which ex parte assessments have been made completed and appeals have been heard and disposed of. Mr. Bajoria appearing for the appellant has stated that the costs may be paid to the Rural Cancer Society. Let the costs be paid within a week from the date of communication of this order. 75. Mr. S. Panja bas asked for stay of the operation of the judgment and order which is refused having regard to the observations made in the judgment. 76. Filling of Paper Book dispensed with. Undertaking is discharged. 77. After the judgment was delivered. Mr. Anindya Mitra has mentioned this matter and submitted that the respondents do not want to go higher up and they will abide by the directions contend in the judgment. He has however submitted that the Officers concerned may be excepted from payment of costs. Having regard to the submissions of learned Counsel for the Sale Tax Authorities, we direct that no costs shall be payable by the concerned Officers personally or otherwise. In other words, there will be no orders as to costs. Special Officers and all parties concerned to act on a signed copy of the operative part of this judgment and order on usual undertaking. Yusuf, J.: I agree