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TMI Blog1979 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... ft in favour of the plaintiffs. The plaintiffs, in the later part of 1973, with their own capital, started the business afresh under the same name and style as the goodwill was transferred to them. According to the plaintiffs, Nityananda did not transfer his business absolutely to the plaintiffs and the building in which he used to carry on his business and the furniture lying therein were transferred to his two sons, Bijoy Chandra Nag and Basanta Kumar Nag, and the plaintiffs were tenants under them. The aforesaid business of the plaintiffs had no taxable sale and turnover and, as such, they were not at all liable to pay any sales tax, nor was any registration certificate necessary for the plaintiffs to run the business and the shop. In the year 1367 B.S., a certificate of demand for arrears of sales tax amounting to Rs. 676.95 was served upon the plaintiff s under section 7 of the Public Demands Recovery Act, calling upon them to pay the said amount as transferee of the whole business of Nityananda Nag and, in the certificate of demand, the registration number of Nityananda was shown against the name of the plaintiffs even though the registration certificate was surrendered by Ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e civil court jurisdiction to try the suit? (2) Is the impugned certificate valid and legal or liable to be cancelled or amended or set aside? The learned Munsif answered the first issue in favour of the plaintiffs but, as regards the other issue, the learned Munsif found, on construction of the deed of gift and other evidence adduced by the parties, that there was absolute transfer of the business and, therefore, the plaintiffs were liable to pay the sales tax assessed as transferees in view of the provisions of section 17 of the Act. Accordingly, he dismissed the suit with costs. In the appeal preferred by the plaintiffs, the learned Subordinate judge overruled the decision of the learned Munsif so far as the first issue was concerned, as, according to the learned Subordinate judge, section 19 of the Act was a bar to the institution of the suit. Regarding the other issue, the learned Judge concurred with the finding of the learned Munsif that the plaintiffs were the transferees of the business and they were liable to pay the sales tax. Accordingly, the appeal was dismissed. In assailing the judgment of the learned lower appellate court, Mr. Mitter, the learned Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that when an order is passed without jurisdiction such an order cannot be labelled as an order under the Act and, therefore, the civil court had jurisdiction to entertain the suit, notwithstanding the provision of section 19 of the Act. In support of his contention, Mr. Mitter referred to the following passage from the decision of the Privy Council in the case of Secretary of State for India v. Mask Co.(1940) 67 I.A. 222 (P.C.).: "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well-settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." Mr. Mitter next drew my attention to the following observation of the Supreme Court made in the case of Union of India v. A.V. Narsimhalu[1970] 2 S.C.R. 145.: "We, however, deem it necessary to observe that the civil courts have jurisdiction to examine cases in which the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority without jurisdiction, as part of the sales was outside the jurisdiction of the State. It was further contended that when the appropriate authority purported to levy the tax in respect of the transactions in question, it was attempting to assess outside sales and, since the said assessment contravened article 286 of the Constitution, it was invalid and the order was without jurisdiction and, as such, a nullity. To decide the validity of the above contention, the Supreme Court raised the following questions: "Is the decision about the character of the transaction the decision of a collateral fact, the finding on which alone confers jurisdiction on the tribunal to levy the tax, or is it the decision on a question of fact which is left to be determined by the appropriate authority itself?" and answered the same itself with these following words: "If the jurisdiction conferred on the appropriate authority falls under the first category, then its finding that a particular transaction is taxable under the relevant provisions of the Act, would be a finding on a collateral question of fact, and it may be permissible to a party aggrieved by the said finding to contend that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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