JUDGMENT
1. The petitioners in this case allege that they are the sole selling agents of Messrs Modi Supplies Corporation Limited for the area South Bihar. It is said that in their capacity as the sole selling agents, the petitioners purchase biscuits manufactured by Modi Supplies Corporation Limited and sell them to consumers. It further appears that Modi Supplies Corporation Limited directly sell their products to consumers in South Bihar for which the petitioners get a fixed rate of commission. The case of the petitioners is that on the 30th May, 1951, the Superintendent of Sales Tax, Dhanbad, made an assessment of sales tax upon the petitioners for the year 1950-51 on an estimated turnover of Rs. 1,17,022. The petitioners took the matter in appeal to the Assistant Commissioner of Commercial Taxes, but the appeal was dismissed on the 30th November, 1954. The petitioners then filed a revision application to the Deputy Commissioner of Commercial Taxes under Section 24(4) of the Bihar Sales Tax Act, but the application was rejected. The petitioners then applied to the Board of Revenue, but their application was dismissed, and the Board of Revenue confirmed the assessment of sales tax with regard to the year 1950-51. The grievance of the petitioners is that in the estimated turnover for the year 1950-51 the Superintendent of Sales Tax illegally included the amount of sales made directly by the Modi Supplies Corporation Limited to the various customers in the agency area amounting to a sum of Rs. 24,088-10-0. With regard to this amount the petitioners allege that they were merely acting as brokers and the title to the goods did not pass to them and there was no sale made by the petitioners which could be taxed under the provisions of the Bihar Sales Tax Act.
2. In our opinion, this application must be dismissed for two reasons. In the first place, the petitioners had an effective remedy provided under the provisions of the Bihar Sales Tax Act, 1947, and it was open to them to have made an application to the Board of Revenue for stating a case to the High Court under Section 25 of the Bihar Sales Tax Act. If the Board of Revenue had refused to make a reference, the petitioners had the option of making an application to the High Court under Section 25(2) of the Bihar Sales Tax Act. It is manifest that the petitioners have not chosen to avail themselves of the special machinery provided by the Bihar Sales Tax Act and, in our opinion, it is not open to the petitioners to make an application to this Court under Article 226 of the Constitution. The principle that should be applied to a case of this description has been laid down by this Bench in Messrs Dayabhai Gokulbhai Patel v. State of Bihar (1959) B.L.J.R. 343. It was pointed out in that case that if the party has an effective remedy provided in the machinery of the Bihar Sales Tax Act and if he does not avail himself of the statutory remedy within the time granted, he cannot be permitted to attain his object by a method of his own choosing, namely, by an application under Article 226 of the Constitution and he is not entitled to the grant of a writ under Article 226 of the Constitution. In our opinion, the principle of this case applies to the present case and the petitioners are not, therefore, entitled to the grant of a writ under Article 226 of the Constitution.
3. We are further of opinion that even upon merits the petitioners are not entitled to succeed in this case. It is alleged in the application that a sum of Rs. 24,088-10-0 represented the proceeds of the sales made directly by the Modi Supplies Corporation Limited to various customers in the agency area and with regard to this amount the petitioners were not liable to be taxed under the provisions of the Bihar Sales Tax Act. But no such argument was addressed either before the Superintendent of Sales Tax, Dhanbad, or before the appellate and revisional authorities. Indeed it appears from the order of the Superintendent of Sales Tax, dated the 30th May, 1951, that the petitioners did not produce any accounts of sales and the case was detected by the sales tax department because of a report made by an Inspector of Sales Tax who visited the shop of the petitioners on the 27th March, 1951. According to the Inspector, the business of the petitioners was carried on in different names, such as, Bhojraj Dalmia, Rajeshwar Brothers, Pursot-tam Kumar and Kanodia Brothers. It also appears that Pursottam Kumar, Rajeshwar Kumar, Chotan and Yadeshwar Kumar are the sons of Bhojraj Dalmia in whose name the goods were imported. The finding of the Superintendent of Sales Tax on this point has not been set aside by the Deputy Commissioner of Sales Tax in appeal, though the point was argued before him on behalf of the petitioners that the various firms were different. The Board of Revenue also rejected the argument of the petitioners on this point. It was observed by the Board of Revenue in its order dated the 29th November, 1957, that the “lack of bona fides of the petitioner is shown by the fact that the petitioner failed to produce his accounts before the assessing officer and failed to give any satisfactory explanation as to why no accounts were maintained.” In the revisional order dated the 1st October, 1956, the Board of Revenue has dealt with the case of the petitioners for the year 1950-51 as follows: –
It will be convenient to dispose of the assessment for the year 1950-51 in respect of which liability was admitted. The assessing officer gave plausible reasons for the estimate of the business and the quantum has been considered in the light of the arguments put forward by the assessee before the lower courts. The admitted position is that the assessee failed to produce any accounts and was not able to give any satisfactory explanation as to why no accounts were maintained. On due consideration of the reasons given by the learned lower courts, I do not see any reason to differ with their findings about tbe estimate of business of the assessee in respect of the year 1950-51. In view of the liability of assessment for the year, the jurisdiction to impose penalty for not applying for registration cannot also be questioned and having regard to the circumstances of the case and the plea taken by the assessee, no case has been made out for interfering with the penalty imposed which is not excessive. The petition in respect of the year 1950-51 is therefore rejected.
4. It is, therefore, manifest that the petitioners never produced accounts before the Sales Tax Authorities and it was never their case that there were two kinds of sales carried on by them by virtue of the agency contract with the Modi Supplies Corporation, namely, sales made by them of biscuits to various consumers in the agency area and sales made by the Modi Supplies Corporation direct to various consumers for which the petitioners get a fixed rate of commission. The question is purely one of accounting; and since the petitioners never produced their account books before the Sales Tax Authorities nor furnished any return of their sales, it is obvious that no such question was raised by the petitioners before the Superintendent of Sales Tax or before the Deputy Commissioner of Sales Tax or before the Board of Revenue. As we have already said, the question raised by the petitioners for the first time in the High Court is a question of fact which was not raised before the Sales Tax Authorities and which was not investigated by them. It is impossible, therefore, for us to entertain this question for the first time in the High Court and determine it. For this reason also we hold that there is no merit in this writ application and the petitioners have not made out a case for grant of a writ under Article 226 of the Constitution,
5. For these reasons we hold that this application fails and must be dismissed with costs. Hearing fee Rs. 200.