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TMI Blog1973 (9) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ments as "ready-made garments", an Item entered at No. 2 in Schedule II appended to the Act. The petitioner having felt aggrieved against the assessment of those articles as "ready-made garments" filed an appeal before the Assistant Commissioner, but before that appeal could be decided he filed the Instant writ petition challenging the finding of the Superintendent of Taxes that the garments of which the sale price was included In the turnover appropriately fall within the description of "ready-made garments". 3.. The respondents have joined issue with the petitioner on the point that the articles in question do not answer the description of "ready-made garments". In addition, it is pleaded that the petitioner having not exhausted his departmental remedies he had no right in law to file the present writ petition. 4.. The learned Advocate-General, Assam, has invited our attention to the Supreme Court decisions in Champalal Binani v. Commissioner of Income-tax, West Bengal[1970] 76 I.T. R. 692 (S.C.); [1971] 3 S.C.C. 20., and V.V. Iyer v. Jasjit Singh[1973] 1 S.C C. 148., to reinforce his submission that the present writ petitions are misconceived. Beyond doubt it was held in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase under the Bengal Finance (Sales Tax) Act, 1941, and, as such, it has a clear bearing on the present writ petitions which are all, as stated earlier, filed challenging the assessments made under the Act. 7. We feel satisfied on going through the various authorities cited by the parties' counsel that the rule requiring exhaustion of statutory remedies before the writ petition can be filed is purely a rule of policy, convenience and discretion rather than a rule of law binding on the High Court. In this respect we invite reference to another decision of the Supreme Court In the case of Baburam v. Zila ParishadA.I.R. 1969 S.C. 856. Ramaswami, J., held therein, while speaking for the court, that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue prerogative writ. It is true, it was said further, that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ though the existence of an adquate legal remedy is a thing to be taken into consideration in the matter of granting writs and, where such a remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of its preparation. According to the allegations made in the writ petition of Srikrishna Stores, what normally happens is that a customer firstly comes to the textile department of the stores, chooses a particular piece of cloth, probably pays its price, and then orders that the proprietor of the stores may get a particular garment prepared from his own tailors of the cloth selected by him. It is easy to assume that in such a case the tailor would take the measurements of the customer so that the required garment when ready fits him. Not quite unoften the tailor tries the garment on the customer before finalising its stitching. It Is not disputed on behalf of the respondents that all these processes are gone through before the customer can take delivery of the prepared garment. In our opinion, such a garment would not answer the description of "ready-made garment" but can more aptly be described as a "garment made to order". As such, such a garment cannot be assessed as ready-made garment under the Act. A peculiar feature of the garment we are concerned with is that it is earmarked for an individual and it cannot be sold by the dealer to someone else, whereas rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is the price of thread, buttons and metalware that may have been used in preparing the particular garment. However, as may normally turn out to be the case, if the customer selects the piece of cloth and places an order for making a particular garment out of it and the entire process constitutes one contract, then he (the customer) shall be purchasing a garment made to order which shall be liable to assessment as "other goods", an item entered at No. 3 of Schedule II of the Act. These illustrative cases make it abundantly clear that the assessment cannot be made by any rule of thumb. Each individual transaction will have to be looked into with a view to determine its true nature. 10.. The expression "sale" is defined in section 2(12) of the Act and that definition, we feel, would be of considerable help in determining whether the piece of cloth of which the garment to order is made had been sold out by the dealer before the purchaser placed an order for its being stitched into a particular garment, or whether the purchase of the piece of cloth forms an integral and inseparable part of the entire transaction ending with the delivery of the garment prepared out of it. The expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged; or (b) the carrying out of any contract, less such fraction of such amount as represents the prescribed proportion of the cost of labour used in carrying out such contract. It is apparent that in terms of clause (b) the whole of the amount paid by the customer as the price of the garment prepared on order, shall not be considered as sale price for the purposes of the Act. The true sale price which shall be taken into account in finding out the turnover of the dealer, who supplied the garment made on order, would be the amount payable to him as the price of the garment less such fraction of the total amount paid as represents the prescribed proportion of the cost of labour used in carrying out such contract. Hence, while assessing the sale price of the various garments on order supplied by a dealer the assessing authority cannot ignore the definition of the expression "sale price". 12.. The above discussion of the various provisions of the Act and other connected matters leave no room for doubt that the method adopted by the assessing authorities respecting the garments prepared on order and sold by the petitioner may not be perfect, for it appears that the authorities ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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