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TMI Blog1969 (12) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... essarily delay the decision of this point. In these circumstances I think it is desirable that this matter should be decided by a larger Bench in the very first instance. I would, therefore, refer this case, in which only these two points are involved, to a Division Bench. Let the papers be placed before the learned Chief justice for necessary orders in this respect at a very early date. In pursuance of the abovesaid order of reference the case came on for hearing before the Division Bench consisting of D.K. MAHAJAN and A.D. KOSHAL, JJ., and the court delivered the following judgment on 17th December, 1969. Siri Chand Goyal with Satya Parkash Jain, for the petitioner. Balwant Singh Gupta, for the respondents. JUDGMENT KOSHAL, J.-The petitioners before us are a partnership known as Messrs Maman Chand Kundan Lal (hereinafter referred to as the firm) who carry on business as commission agents at Narwana in District Jind of Haryana State and as such are assessed to sales tax under the provisions of the Punjab General Sales Tax Act, 1948, as amended by the Haryana Legislature (hereinafter called the Haryana Act). For the assessment year 1967-68 the Assessing Authority, who is im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Haryana Act itself, the petition which seeks to invoke the extraordinary jurisdiction of this court under articles 226 and 227 of the Constitution should be thrown out as incompetent. Reliance in support of the objection is placed on Webbing and Belting Factory Ltd., Delhi v. Sales Tax Officer(1), Radhey Mohan Gupta v. Union of India and Others(2), Guru Nanak Flour Oil Mills v. The State of Punjab and Another(3) and Sales Tax Officer, jodhpur and Another v. Shiv Ratan G. Mohatta(4). These authorities no doubt lay down that (1) A.I.R. 1955 Punj. 184. (2) A.I.R. 1956 Punj. 167; 7 S.T.C. 819. (3) (1966) 68 P.L.R. 665. (4) A.I.R. 1966 S.C. 142; 16 S.T.C. 599. normally an assessee cannot have recourse to a petition under article 226 of the Constitution unless he has exhausted the remedies available to him under the taxing statute. However, the rule is not universal in its application and admits of exceptions as was pointed out by their Lordships in Sales Tax Officer, jodhpur and Another v. Shiv Ratan G. Mohatta(1) with the following observations: "It was urged on behalf of the assessee that they would have had to deposit sales tax, while filing an appeal. Even if this is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e United Motors (India), Ltd.(4) above referred to. There it was (1) A.I.R. 1966 S.C. 142; 16 S.T.C. 599. (2) [1954] 5 S.T.C. 115. (3) [1952] 3 S.C.R. 572. (4) [1953] 4 S.C.R. 1069; 4 S.T.C. 133. held that the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under article 226. Moreover, the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy." In Kailash Nath and Another v. The State of U.P. and Others(1), the matter was dealt with thus: "An objection has been taken on behalf of the State Government that the imposition of an illegal tax will not entitle the citizen to invoke article 32; but he must resort to remedies available under the ordinary law or proceed under article 226 of the Constitution, in view of the fact that the right to be exempted from the payment of tax cannot be said to be a fundamental right which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eering and Locomotive Company Ltd. v. The Assistant Commissioner of Commercial Taxes and Another(2), their Lordships observed: "The power and jurisdiction of the High Court under article 226 of the Constitution has been the subject of exposition from this court. That it is extraordinary and to be used sparingly goes without saying. In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed, To these there are certain exceptions. One such exception is whether action is being taken under an invalid law or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould attribute to it." It has thus to be determined whether gram chhilka which is nothing but the brown skin taken off the gram seed is husk within the popular meaning. Reference in this connection may be usefully made to two portions of Chapter VI appearing in a Government of India publication entitled "Agricultural Marketing in India: Report on the Marketing of Gram in India. " Those portions are reproduced below: "CHAPTER VI. PROCESSING AND DISTRIBUTION OF GRAM PRODUCTS A. Processing. As has already been mentioned in a previous chapter, gram is consumed in the form of dal, baisin, gram ata, crushed gram or as whole gram boiled or parched. In the manufacture of dal, gram is passed through chakkis for splitting the grain and separating the husk and the kernel, while baisin and gram ata are prepared by milling dal and gram respectively." "B. Supply of gram products. * * * * (d) By-products-Chooni and husk are the by-products of dal manufacture. The yield of chooni and husk per 100 maunds of gram differs from place to place as is shown on page 45. Chooni is a mixture of smaller grains of dal and husk." These extracts leave no room for doubt that in so far as the commodit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the four corners of item No. 54. Question No. (1) posed by Pandit, J., in the referring order must thus be answered in the affirmative. 8.. In view of the conclusion just arrived at the other question formulated by Pandit, J., does not arise for decision. It may be stated, however, that in our opinion gram chhilka would be liable to sales tax at the rate of 6 per cent. and not a mere 1 1/2 per cent. (the rate governing sales covering foodgrains). Learned counsel for the firm, however, has made an argument to the contrary on the basis of proviso (12) to Notification No. S.O. 175/ P.A. 46/48/S-5/66 dated 30th of June, 1966, issued by the Government of erstwhile Punjab in exercise of the powers conferred by section 5 of the Punjab General Sales Tax Act. The relevant part of the notification is set out below: "In supersession of all previous notifications on the subject and in exercise of the powers conferred by section 5 of the Punjab General Sales Tax Act, 1948, the Governor of Punjab is pleased to direct that, with effect from the 1st July, 1966, there shall be levied on the taxable turnover every year of a dealer a tax at the rate of six paise in a rupee: Provided that- * * ..... X X X X Extracts X X X X X X X X Extracts X X X X
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