1996 (5) TMI 407 - AT - VAT and Sales Tax

Issues Involved:

1. Maintainability of the writ petition.
2. Validity of the notification dated September 15, 1988.
3. Application of increased tax rate from the date of notification.
4. Publication and issuance of the notification.
5. Burden of proof regarding the publication date.
6. Relevance of precedents cited by the petitioner.
7. Impact of defective affidavit.
8. Presumption of regularity of official acts under the Evidence Act.
9. Applicability of natural justice principles.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition:

It was contended by the department that the writ petition is not maintainable as an alternative remedy by way of filing an appeal against the assessment order was available to the petitioner. However, the Tribunal held that the vires of the provisions of the old Act were challenged in the writ petition, and no authority under the old Act had jurisdiction to entertain and decide such matters. Therefore, the plea of alternative remedy had no substance.

2. Validity of the Notification Dated September 15, 1988:

The petitioner challenged the notification issued under section 5(1) of the Rajasthan Sales Tax Act, 1954, which increased the tax rate on scooters from 5% to 12%. The petitioner argued that the notification was not published and issued to the public on September 15, 1988, as it was a restricted holiday. The Tribunal noted that the notification was dated September 15, 1988, and there is a presumption that official acts were done regularly.

3. Application of Increased Tax Rate from the Date of Notification:

The Tribunal held that since the notification was published in the Rajasthan Gazette dated September 15, 1988, the increased tax rate was applicable from that date. The petitioner's argument that the notification was not made known to the public on September 15, 1988, and thus the increased rate could not apply, was rejected.

4. Publication and Issuance of the Notification:

The petitioner contended that the notification was printed on September 16, 1988, and issued to the public on September 17, 1988. The Tribunal found that the notification was published in the Rajasthan Gazette dated September 15, 1988, and the news about the notification appeared in newspapers on September 16, 1988, which corroborated the publication date.

5. Burden of Proof Regarding the Publication Date:

The Tribunal emphasized that it was the petitioner's responsibility to prove that the notification was not published and issued on September 15, 1988. The petitioner failed to provide sufficient evidence to disprove the publication date.

6. Relevance of Precedents Cited by the Petitioner:

The petitioner relied on several judicial decisions to support their case. However, the Tribunal found that the facts and circumstances of those cases were different and distinguishable. The cited cases did not help the petitioner's argument that the notification was not validly published on September 15, 1988.

7. Impact of Defective Affidavit:

The Tribunal noted that the affidavit filed in support of the writ petition was defective as it did not specify which paragraphs were true to personal knowledge and which were based on legal advice. The importance of verification of affidavits was emphasized, and no reliance was placed on the defective affidavit.

8. Presumption of Regularity of Official Acts Under the Evidence Act:

Illustration (e) of section 114 of the Evidence Act allows the court to presume that official acts have been regularly performed. Section 81 of the Evidence Act presumes the genuineness of official gazettes. The Tribunal held that the notification dated September 15, 1988, was presumed to be genuine and regularly published.

9. Applicability of Natural Justice Principles:

The Tribunal referred to the principle of natural justice which requires that laws must be published and made known to the public. However, in this case, the Tribunal held that the notification was published in the official gazette on September 15, 1988, and thus the increased tax rate was applicable from that date.

Separate Judgments:

The Chairman dismissed the writ petition, holding that the notification was validly published on September 15, 1988, and the increased tax rate applied from that date. The Judicial Member, in a separate judgment, allowed the writ petition, setting aside the assessment order and demand notice, holding that the notification was not made public on September 15, 1988. The Technical Member concurred with the Judicial Member's judgment.

Conclusion:

The writ petition was allowed, and the assessment order and demand notice were set aside. No order as to costs was made.

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