Holding

Orders of assessment made under the Central Sales Tax Act and the Orissa Sales Tax Act are not amenable to writ jurisdiction under Article 226 and must be challenged through the statutory appeal hierarchy provided by the Acts.

Summary

Titaghur Paper Mills Co. Ltd. was assessed for sales tax for the year 1980-81 under the Central Sales Tax Act, 1956 and the Orissa Sales Tax Act, 1947 after the assessing officer, having refused further adjournments, made a best‑judgment assessment treating the gross turnover as taxable. The company filed writ petitions under Article 226 of the Constitution alleging that the assessment orders were nullities and violated natural‑justice principles. The High Court dismissed the petitions, holding that the company had an alternative statutory remedy. The Supreme Court held that the Acts provide a complete machinery for challenging assessments and that such orders cannot be attacked by invoking Article 226 when a specific appeal route under the statutes exists. Consequently, the petitions were dismissed.

Issues considered

Whether an order of assessment under the Central Sales Tax Act and the Orissa Sales Tax Act can be challenged by a writ under Article 226 of the Constitution when statutory appeal mechanisms are available.
Whether the assessing officer acted without jurisdiction or in violation of natural‑justice principles, rendering the assessment a nullity.
Whether the rule of exhaustion of alternative remedies is a rule of law or merely a rule of convenience.

Legislation cited

Central Sales Tax Act, 1956s. s.13, s. s.23, s. s.24
Central Sales Tax (Orissa) Rules, 1957s. r.12(5), s. r.15
Orissa Sales Tax Act, 1947s. s.12(4), s. s.13, s. s.23, s. s.24

Subjects

Sales taxCentral Sales Tax ActAssessmentBest‑judgment assessmentArticle 226Statutory appeal hierarchyExhaustion of remediesNatural justice

Judgment

743

TITAGHUR PAPER MILLS CO. LTD.
A
v.
STATE OF ORISSA
' April 13, 1983
.B
(A.P. SEN, E.S. VENKATARAMIAH AND R.B. MISRA, JJ.}
Sales-tax-Central Sales Tax Act, 1956-Repeated notices for production
of records issued to assessee-Best judgment assessment made-Assessee, if
could impugn order under Article 226 of the Constitutian.

It appears that proceedings under r. 12(5) of the Central Sales Tax
c
(Orissa) Rules 1957 and under sub-s. (4) of s. 12 of the Orissa Sales Tax Act,
1947 were initiated against the petitioners for the assessment year .1980-81 in
relation to assessment of tax on sales in the course of inter-state 1rade and com·
merce under· the Central Sales Tax Act, 1956 and inside sales effected during
the year in question undef the Orissa Sales Tax Act, 1947. Despite repeated
opportunities to get themselves ready for the assessment of tax and to produce .D
their account books and other documents, they sought adjournments on the
one pretext or another. Eventually the Assistant Sales Tax Officer, Cuttack
It circle, Cutta9k before whom the assessment proceedings were pending,
refused to grant any further adjournment and proceeded to best judgment
assessment and treated the gross turnover of Rs. 7,13,94,903.63 p. as
returned by the petitioners for purposes of the Central Sales Tax Act, 1956
to be their taxable turnover. Similarly, he treated the gross turnover of
E
Rs. 2,02,07,852.65 p returned by the petitioners as representing inside sales
vis-a-vis the State of Orissa to be their taxable turnover. After allowing
adjustment of Rs. 27,88 ,388 .47 p paid by the petitioners, the learned Sales
T;ix Officer raised a demand for the payment of a sum of R~. 43,57,101.89 p
towards tax on sales in the course of inter-State trade and commerce payable
under the, Central Sales Tax Act, 1956 and after allowing adjustment of F
Rs. 1,08 ,480.11 p paid by the petitioners, he raised the demand for payment
of a sum ofR;. 13,06,069.60 pas tax payable under the Orissa Sales Tax Act,
1947. Thus the petitioners were faced with a total demand of Rs. 56,57,171.49 p
for the assessment year 1980-81. The petitioners instead of preferring
appeals under sub-s (I) ofs. 23 of the Act filed petitions before the High Court
under Art. 226 of the Constitution challenging the validity of the two
orders of assessment. The High Court was not sa ti tied that this was a case G
of inherent Jack ot jurisdiction or any violation of principles of natural justice
and accordfitgly held that the1 Were not entitled to invoke the extraordinary
juriSdiction of the High Court under Art. 226 of the Constitution,

Dismissing the Petitions,
)
H
HELD : In 1he provenance, of tax where the Act provides for a complete
machinery which enables an assessee to efl'ective!y1 raise in the courts the
11uestion of the validity of an asse>S!"ent ~~nic d an alternative jurisdictl91\
744 SUPREME COURT REPORTS (1983) 2 S.C.R.

to the High Court to interfere under Art. 226 of the Constitution. The phrase
A "made under the Act'' describes the provenance of the assessment; it does not
relate to its accuracy in point of law. The use of tt.e machinery provided by
the Act, not the result of that use, is the test. [748 G-H; 749 AJ

Under the scheme of the Act, there is hierarchy of authorities before
which the petitioners can get adequate redress against the wrongful act ,
complained of. They have the right to prefer an appeal before the pre£cribed
B authority under sub-s. (1) of s. 23 of the Act. If they are dissatisfied with the
decision in the appeal, they can prefer a further appeal to the Tribunal under
sub-s. (3) of s. 23 of the Act, and then ask for a case to be stated on
a question of law for the opinion of the High Court under s. 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 prescri·
c bed by the Act and not by a petition under Art. 226 of the Constitution.
(751 F-H]

Ra.leigh Investment Company Limited v. Governor General in Council,
74 IA 50, followed.

K. S. Veukataraman & Co. v. State of Madras [1966] 2 SCR 229 and
D State of Uttar Pradesh v. Mohammad Nooh [1958] SCR 595 ; distingnished.

The question whether a provision is ultra vires or not cannot obviously
be decided by any of the authorities created by the Act and t_herefore cannot
be the subject matter of a reference to the High Court or a subsequent appeal
to this Court. No such question arises in a case like the present where the
E impugned orders of asses·;ment are not challenged on the ground that they
are based on a provision which is ultra vires. This is a case in which the
ent~stment of power to assess is not in dispute and the authority within the
- limits of his power is a Tribunal of exclus}ve jurisdiction. The challenge is
only to the regularity of the proceedings before the ]earned Sales Tax Officer
as also his authority to treat the gross turnover returned by the petitioners
to be the taxable turnover. Investment f authority to tax involves authority
F to take transanctions which in exercise of his authority the taxing officer
regards as taxable: and not n1erely ~ authority to tax on1y thos~ transactions
which are, on a true view of the facts and the law, taxa~Je. There is no
justification for extending the principles laid down in Raleigh Investment
Company's case or Mohammad No:;h's case to a case like the present Where
there is an assessment made by the learned Sales Tax Officer under the Act.
G [749 E-H; 753 A-BJ

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 in an appeal undersub-s. (1) ofs. 23 of the
Act.[751 DJ
H
The rule laid down in Mohammad Noah's _case which requires the
exhaustion of· alternative remedies is a ~ule of convenience and discre~ioni,
I. i'athc;r than a rule of law. (751 Ej
TITAGHUR PAPER v. ORISSA (Sen, J.) 745
The Act provides for. an adequate safeguard against an arbitrary or
Unjust assessment. The petitioners have a right to prefer an appeal under A
sub-s. (I) of s. 23 of the Act subject to their payll)ent of an admitted amount
") .> of tax as enjoined by the proviso thereto. As regards the disputed ambunt .of
tax, they have the remedy of applying for Stay of teco . . ery to the Commissioner
of Sales Tax under cl. (a) of the second proviso to sub-s. (I) of s. 13 .of the
Act. It is for the Comn1issioner to decide whether or not there should be
such stay on such terms and conditions as he thinks fit, looking to the nature
of the demand raised in the facts and circumstances of the present case. B
[752 E-F; 753B-C]

CIVIL APPELLATE JURISDICTION ; Special Leave Petition Nos.
4513-14 of 1983.
} From the Judgment and Order dated the 10th March, 1983
of the Orissa High Court in O.J.C. No. 590 of 1983. C
WITH
Writ Petition Nos. 3363·64 of 1983.

(Under Article 32 of the Constitution) D
S.R. Banerjee and Vinoo Bhagat for the Petitioners in S.L.P.

Vinoo Bhagat for the Petitioner in Writ Petition.

F.S. Narirnan, V.S. Desai, and R.K. Mehta : for the Respondent E
in S.L.P.

S,K. Mehta, for the Respondent in Writ Petition.

The Judgment of the Court was delivered by

SEN, J. These two special leave petitions are directed against F
an order of the Orissa High Court dated March 18, 1983 dismissing
the Writ Petitions flied by the petitioners in /imine challenging the two
orders of assessment passed by the Assistant Sales Tax Officer,
Cuttack II Circle, Cuttack dated February 16, 1983. The connected
petititions under Art. 32 of the Constitution are by an Officer of the G
Company challenging the two orders of assessment.

By one of the Writ Petitions, the petitioners challenged the
validity of the order of assessment under the Central Sales Tax
)
Act, I 956 for the assessment year 1980-81 passed by the Assistant H
Sales Tax Officer, Ctittack II Circle, Cuttack dated February 16, 1983
under r.15 of the Central Sales Tax (Orissa) Rules, 1957 treating the
gross turnowr of Rs, 7, 13, 94, 903. 63p. as returned by th~

__ ,,__ _
746 SUPREME COURT REPO~TS [1983] 2 s.c.R.

petitioners to be their taxable turnover and the tax payable thereon
A at 10% at Rs. 7l,39,490.36p. By the other, the petitioners
challenged the validity of an order of assessment under the Orissa
Sales Tax Act. 1947 for the assessment year 1980-81 passed by the
Assistant Sales Tax Officer, Cuttack II Circle, Cuttac~ dated
February 16, 1983 under sub-s. (4) of s.12 of the Orissa Sales Tax
Act, 1947 treating the gross turnover of Rs. 2,02,07,852.65p. as
B returned by the petitioners to be their taxable turnover and the tax
payable thereon at 7% at Rs. 14,14,549.7lp.

It appears from the impugned orders of assessment that
proceedings under r.12 (5) of the Central Sales Tax (Orissa) Rules,
c 1957 ("Rules" for short) and under sub-s. (4) of s.12 of the Orissa
Sales Tax Act, 1947 ("Act" for short) were initiated against the
petitioners for the assessment year 1980-81 in relation to assessment
of tax on sales in the course of inter-state trade and commerce under
the Central Sales Tax Act, 1956 and inside sales effected during the
year in question under the Orissa Sales Tax Act, 1947. The
D
provisions contained in r. 12 (5) of the Rules and in sub-s. (4) of s.12
of the Act enjoin the affording of reasonable opportunity to the
dealer for completion of assessment. The learned Sales Tax Officer
observes that he gave repeated opportunities to the petitioners to get
themselvea ready for the assessment of tax and to produce their
E account books and other documents but they sought adjournments
on one pretext or another. Eventually on February 16, 1983 the
learned .Sales Tax Officer refused to grant any further adjournment
holding that the petitioners had sufficient opportunity and accordingly
proceeded to best judgment under r.15 of the Rules and sub-s. (4)
of. s.12 of the Act. In" the absence· of any material, the learned
F Sales Tax Officer made an assessment under r.15 of the Rules
treating the gross turnover of sales in the course of inter-State trade
and commerce amounting to Rs. 7,l3,94,903.63p. as returned by
the petitioners under the Central Sales Tax Act, 1956 to be their \
taxable turnover and the tax payable thereon at 10% at
G Rs. 7!,39,490.36p. After allowing an adjustment of Rs. 27,88,388.47p.
paid by the petitioners along with the quarterly return, the learned
Sales Tax Officer has raised a demand for payment of a sum of
Rs. 43,5!,I0!.89p. He disallowed their claim for deduction of
Rs .. 6,74,99,085.65p. representing sales to registered dealers and
H departments of Government as well as of. Rs. 28,24,224.42p.
claimed as deduction on account of tax collected from purchasers
as the requisite declarations in Form 'C' were not forthcoming. He
;ilso disallowed the concessional rate of tax at 4%. Similarly, while
TITAGHUR PAPER v. ORISSA (Sen, J.) 747

") . making an assessment under sub-s. (4) of s.12 of the Orissa Sales Tax
Act, 1947, he treated the gross turnover of inside sales amounting to A
Rs. 2,02,07,852.65p. as returned by the petitioners to be their
taxable turnover and the tax payable thereon at 7% at Rs. 14,14,549.
7lp. After allowing an adjustment of Rs. 1,08, 480. llp. paid by
the petitioners along with the quarterly return, the learned Sales Tax
Officer has raised a demand for payment of a sum of B
Rs. 13,06,069.60p. It would thus appear that by the impugned orders
of assessment the petitioners are faced with a total demand of
Rs. 56,57,17!.49p. for the assessment year 1980-81. The petitioners
instead of prefering appeals under sub-s. (1) of s. 23 of the Act filed
petitions before the High Court under Art. 226 of the Constitution
challenging the validity of the two orders of assessment. C
The only contention raised before the High Court was that the
·impugned orders of assessment being a nullity, the petitioners were
entitled to invoke ·the extraordinary jurisdiction of the High Court
under Art. 226 of the Constitution, but the High Court was not
satisfied that this was a case of inherent lack of jurisdiction. The D
High Court while dismissing the writ petitions observed :

"Having heard the learned counsel for both the
parties and having gone through the records, we are not
inclined to interfere with the impugned order (s) in E
exercise with our extra-ordinary jurisdiction since there
is a right of appeal against the same. It is contended on
behalf of the petitioner that the impungea order being
a nullity is entitled to invoke our extra-ordinary jurisdic-
tion. We are not satisfied that this is a case of inherent
lack of jurisdiction. There is no violation of principles F
of natural justice."

In support of these petitions, the submissions advanced by
learned counsel for the petitioners rest purely on procedural
irregularities or touch upon the merits of the assessments. Broadly G
speaking, the contentions were that : (1) The learned Sales Tax
• Officer had no authority or jurisdiction while making an assessment
under r. 15 of the Central Sales Tax (Orissa) Rules, 1957 to treat the
gross· turnover as returned by the petitioners to be their taxable
turnover. (2) He was not justified in disallowing the claim for H
deduction of Rs. 6, 74,99,085.65p. representing sales to registered
dealers and departments of Government as well as of Rs. 28,24,224.
42p. on ~ccoun,t of tax collected fro!ll the J?Urchasers froll! the ~ross

~ .. -.
748 SUPREME COURT REPORTS [1983] 2 S.C.R.

turnover of sales in the course of inter-State trade and commerce
A amounting to Rs. 7,13,94,903.63p. (3) He wrongly denied the
petitioners the benefit of the concessional rate of tax at 4% merely
because they failed to furnish the requisite declarations in Form 'C'.
(4) He could not, for similar reasons, while making an assessment
under sub-s. (4) of s. 12 of the Orissa Sales Tax Act, 1947 treat the
B gross turnover of inside sales amounting to Rs. 2,02,07 ,852.65p.
as returned by the petitioners to be their taxable turnover nor was he
justified in disallowing their claim for deduction of Rs. 1, 80, 65, 167.
66p. representing sales to registered dealers merely because they
failed to produce the prescribed declarations from registeread dealers.
(5) And the learned Sales Tax officer had acted in flagrant violation
C of the rules of natural justice as the petitioners were deprived of an
opportunity to place their case for the assessment year in question.
We are afraid, these contentions cannot prevail. It is not for us to
say whether or not the learned Sales Tax Officer was justified in
proceeding to best judgment under r. 15 of the Central Sales Tax
(Orissa) Rules, 1957 and under sub-s. (4) of s. 12 of the Orissa Sales
D Tax Act, 1947 or whether he was justified in treating the gross
turnover as returned by the petitioners to be their taxable turnover or
whether he was wrong in disallowing the deductions claimed for the
assessment year in question. In the ve1y nature of things, these are the
questions which the petitioners should raise in appeals preferred
E before the prescribed Appellate Authority under sub-s. (I) of s. 23 of
the Act.

We are constraitied to dismiss these petitions on the short
ground that the petitioners have an e_qually efficacious alternative
remedy by way of an appeal to the prescribed authority under
F sub-s. (I) ofs. 23 of the Act, then a second appeal to the Tribunal
under.subs. (3) (a) thereof, and thereafter in the event the petitioners
get no relief, to have the case stated to the High Court under s. 23 of
the Act. In Raleigh Investment Company Limited v. Governor General
in Council,(') Lord Uthwatt, J. in delivering the judgment of the
G Board observed that in the provenance of tax where the A~t provided
for a complete machinery which enabled an assessee to effectively to
raise in the courts the question of the validity of an assessment •
denied an alternative jurisdiction to the High Court to interfere. It
is true tl\at tbe decision of the Privy Council in Raleigh l71vestment
H Company's case, supra, was in relation to a suit brought for a
declaration that an assessment made by t]le Income Tax Offic~r was

(1) 74 IA SO,
t1tAGllUR PAPER v. ORISSA (Sen, J.} 749
a nullity, and it was held by the Privy Council that an assessment
made under the machinery provided by the Act, even if based on a A
·"l > provision subsequently .held to be ultra vires, was not a nullity like
an order of a court lacking jurisdiction and that s. 67 of the Income
Tax Act, 1922 operated as a bar to the maintainability of such a
suit. In dealing with the question whether s. 67 operated as a bar
to a suit to set aside or modify an ~ssessment made under a provision B
of the Act which is ultra vires, the Privy Council observed:

"In construing the section it is pertinent, in their
Lordships opinion to ascertain whether the Act contains
J machinery which enables an assessee effectively to raise in
the courts the question whether a particular provision of c
the Income Tax Act bearing on the assessment made Is or
is not ultra vires. The presence of such machinery,
though by no means conclusive, marches with a construc-
tion of the section wlllch denies an alternative jurisdiction
tu inquire into the same subject-matter."
D
We are not oblivious of the fact that this Court in
K.S. Venkataraman & Co. v. State of Madras,( 1) in a five-Judge
Bench by a majority of 3 : 2 has dissented with the view expressed
by the Privy Council in Raleigh Investment Company's case, supra,
and held that an assessment made on the basis of a provision which E
is ultra vires is not an assessment made under the Act. It was
> observed that the entire reasoning of the Judicial Committee was
based upon the assumption that the question of ultra vires can be
canvassed and finally decided through the machinery provided under
the Income Tax Act. The majority observed that the hierarchy of
authorities set up under the Act being creatures of statute were not F
concerned as to whether the provisions of the Act were intra vires
or not. If an assessee raises such a question, according to the decision
of the majority in Venkataraman's case, supra;the Appellate Tribunal
can only reject it on the ground that it has no jurisdiction to entertain
such objection or render any decision on it. As no such question G
can be raised or can even arise out of the order of the Appellate '
Tribunal, the High Court cannot possibly give any decision on the
question of ultra vires because its jurisdiction under s. 66 is a special
advisory jurisdiction and its scope is strictly limited. It can only
decide questions of law that arise out of the order of the Appellate H /
Tribunal and that are referred to it. Further, an appeal to thi~

(!) (1966] 2 SCR 229.
SUPREME COURT REPORTS (19831 i s.c.ii..
Court under s. 66A (2) does not enlarge the scope of the jurisdiction
A of this Court as this Court can only do what the High Court can
under s. 66. It would therefore appear that the majority decision in
Venkataramon's case, supra, rests on the principle that (i) An ultra
.. ("·

vires provision cannot be regarded as a part of tJie Act at all, and an
assessment under such a provision is not "made under the Act" .
but is wholly without the jurisdiction and is not directed by s. 67 of
B the Act. And (ii) The question whether a provision is ultra vires
or not cannot be decided by any of the authorities created by the
Act and therefore cannot be the subject matter of a reference to the
High Court or a subsequent appeal to this Court.
No such question arises in a case like the present where the
c impugned orders of assessment are not challenged on the ground that
they are based on a provision which is ultra vires. We are dealing
with a case in which the entrustment of power to assess is not in
dispute, and the authority within the limits of his power is a Tribunal
of exclusive jurisdiction. The challenge is only to the regularity of the
proceeding before the learned Sales Tax Officer as also his authority
D to treat the gross turnover returned by the petitioners to be the taxa-
ble turnover. Investment of authority to tax involves authority to
tax ransactions which in exercise of his authority the Taxing Officer
regards as taxable, and not merely authority to tax only those
transactions which are, on a true view of the facts and the law,
E taxable.
Emphasis is laid on the following observations made by this
Court in State of Uttar Pradesh v. Mohammad Nooh(') :
"If an inferior Court or tribuual of first instance acts
wholly without jurisdiction or patently in excess of
F 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
G 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 if recourse
was had to it, it confirmed what exfacie was a nullity for
reasons aforementioned.''
H
We find no justification for extending the principles laid down
in Mohammad Noah's case, supra, to. a case like the present where
(I) [1958] SCR 595.
T!TAGHUR PAPER v. ORISSA (Sen, J.) 7si
there is an assessment made by the learned Sales Tax Officer under
the Act. In Raleigh Investment Company's case, supra, the Privy A
n -. 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.
B
The decision in Mohamamd 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 C
proceedings under r. 12(5) of the Rules and sub-s. (4) of s. 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 be D
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-s.
(1) of s. 23 of the Act. All that this Court laid down in Mohammad
Noah's case, supra, is that the rule which requires the exhaustion of E
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.

Under the scheme of the Act, there is a hiererchy of authori-
ties before which the petitioners can get adequate redress against the F
wrongful acts complained of. The petitioners have the right to prefer
an appeal before the prescribed authority under sub-s. (I) of
s. 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-s. (3) of s. 23 of the Act, and then ask for a case G
to be stated upon a question of law for the opinion of the High
Court under s. 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 Art. 226 of the H
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
SUPREME COllR'f REPORTS fl983J i S.C.R.

be availed of. This rule was stated with great clarity by Willes, J.
A in Wo/Verhampton New Water Works Co. v. Hawkesford( 1 ) 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 class, viz., where a liability
B 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
c be adopted and adhered to."

The rule laid down in this passage was approved by the House
of Lords in Neville v. London Express Newspaper Ltd.(•) and has
been reaffirmed by the Privy Council in Attorney-General of Trini-
D dad and Tobago v. Gordon Grant & Co.( 3) and Secretary of State v.
Mask & Co.(') It has also been held to be equally applicable to
enforcement of rights; and has been followed by this Court through-
out. The High Court was therefore justified in dismissing the writ
petitions in /imine.

E Furthermore, the Act provides for an adequate safeguard
against an arbitrary or unjust assessment. The petitioners have a
right to prefer an appeal under sub-s. (I) of s. 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
F petitioners have the remedy of applying for stay of recovery to the
Commissioner of Sales Tax under cl. (a) of the second proviso to
sub-s. (l)ofs. 13 of the Act which runs:

"Provided further that- \
G (a) When the dealer or person, as the case may be, has
presented an appeal under sub-s. (I) of s. 23, the Commis·
sioner may, on an application in that behalf filed by such
dealer or person ~ithin thirty days from the date of

H (1) [185916 CB (NS) 336 at p. 356.
(2) [1919! AC 368.
(3) [:1935] AC 532.
(4) Am 1940 PC 105.
T1TAGHull PAPER V. ORISSA (Sen, J.) ?53

receipt by him of the notice under sub-s. (4), in his
discretion, stay the recovery of the amount in respect of A
which such notice has been issued or any portion thereof,
for such period and subject to such conditions as the
Commissioner thinks fit;"
•
The petitioners are at liberty to make an application for stay
of the disputed amount and the Commissioner will decide whether B
or not there should be such stay on such terms and conditions as he
thinks fit, looking to the nature of the demand raised in the facts and
circumstances of the present case.

For these reasons, the petitions must fail and are dismissed. C
We hope and trust that the Appellate Authority will dispose of the
appeals as expeditiously as possible. Shri Nariman, appearing on
behalf of.the State of Orissa fairly stated that he has no objection to
the appeal being heard as early as possible without any objection as
to limitation.

Petitions dismissed.

•