9911796707
TMI Blog1995 (1) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... be referred to as "the Act of 1954") and also under the Central Sales Tax Act, 1956 (hereinafter to be referred to as "the Act of 1956"). It is alleged that the appellant paid sales tax which was due against it both under the State Sales Tax Act as well as under the Central Sales Tax Act. The assessment order for the year 1965-66 in respect of the Rajasthan Sales Tax Act was passed on July 31, 1968. It appears that the company claimed deduction of Rs. 2,198.40 on the ground that the woollen felt sold by the company had already been subjected to additional excise duty and the same was not liable to tax under the Rajasthan Sales Tax Act with effect from August 25, 1965. The deduction claimed by the appellant was allowed by the assessing authority. It has been averred that the appellant was paying sales tax chargeable both under the Rajasthan and the Central Sales Tax Acts before 1965-66. The Central excise authorities charged excise duty from 1965-66 onwards on the ground that the woollen fabric produced by the appellant-company was a declared item under section 14 of the Sales Tax Act and as such was liable to pay additional excise duty under the Additional Duties of Excise (Goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from the appellantpetitioner from August 25, 1965 to September 30, 1972. The aforesaid petition was contested by the Central excise authorities. The contention raised by the respondents in the aforesaid D.B. writ petition was that "woollen felt" as produced by the petitioner was a "woollen fabric". It was also brought to the notice of this Court that the Gujarat High Court's judgment was under challenge before the Supreme Court*. However, this Court by judgment dated April 22, 1976, upheld the contention of the petitioner that the "woollen felt" was not woollen fabric and the Central excise authorities were not entitled to charge any excise duty on the same. It has been averred in para 13 of the writ petition that the Union of India moved an application in this Court for leave to appeal before the Supreme Court, which was allowed by this Court on October 17, 1976 and the appeal filed by the Central excise authorities is still pending before the apex Court. It is alleged that the Commercial Taxes Officer, Special Circle, Jaipur, issued a notice dated May 5, 1976, under section 12 of the Rajasthan Sales Tax Act read with section 9(2) of the Central Sales Tax Act to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner No. 2 on December 16, 1976, the petition was dismissed by this Court on December 21, 1976, holding that the same has become infructuous because of the notice issued earlier under section 12 of the Act. The non-petitioner No. 3 again served the company with a notice dated December 31, 1976, under section 12 of the Rajasthan Sales Tax Act in pursuance of the directions of the Deputy Commissioner (Administration) dated December 7/30, 1976 given under proviso to sub-section (1) of section 12 of the Rajasthan Sales Tax Act. The direction given by the Deputy Commissioner (Administration), Commercial Taxes, Jaipur, to the Commercial Taxes Officer, Special Circle-II, Jaipur, was to the effect that in view of the judgment dated April 22, 1976 of this Court in D.B. Civil Writ Petition No. 1163 of 1972 S. Zoraster & Company (Supplies) (P) Ltd. v. Union of India there is reason to believe that M/s. S. Zoraster & Company (Supplies) Pvt. Ltd., Purana Ghat, Jaipur, a registered dealer under both the Acts, Rajasthan Sales Tax Act and the Central Sales Tax Act, has not been assessed on the inter-State sales of woollen felts during the years April 1, 1970 to March 31, 1971, April 1, 1967 to Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, which was rejected on August 4, 1977. The appellant-petitioner also moved transfer application before the Additional Commissioner under section 52 of the Rajasthan Sales Tax Act for transfer of the case from the court of nonpetitioner No. 2 to some other court and on the said application the case was transferred from non-petitioner No. 2 to non-petitioner No. 4 vide order dated July 23, 1977. After transfer of the case from non-petitioner No. 2 to nonpetitioner No. 4, the appellant was served with a notice to appear before him on September 24, 1977. It appears that before any reassessment proceedings were done by the non-petitioner No. 4 in pursuance of the notice issued under section 12 of the Rajasthan Sales Tax Act, the appellant-petitioner approached this Court by means of writ petition under article 226 of the Constitution of India, in which following reliefs were claimed: (i) that this honourable Court be pleased to declare that the provisions of proviso to sub-section (1) of section 12 of the Rajasthan Sales Tax Act and/or to the extent necessary, the provisions of sub-section (1) of section 12 of the Act are unconstitutional, null and void: (ii) by a suitable writ, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t force inasmuch as the learned single Judge has discussed the plea of limitation raised by the petitioners regarding the impugned notice in detail and has also interpreted section 12(1) of the Rajasthan Sales Tax Act and its proviso and after discussing the same, has arrived to a conclusion that the plea of limitation raised by the petitioners was untenable. It has been further contended on behalf of the appellant-petitioners that in view of the findings recorded by the learned single Judge on the question of limitation, nothing remains to be decided by the sales tax authorities and as such the remedy available to the petitioners now under the Act before the authorities will be a mere formality and the authorities would be bound by the order of the learned single Judge on the question of limitation. The above argument cannot be brushed aside in view of the fact that the learned single Judge has recorded a finding that the contention raised by the petitioners on the question of limitation is not tenable. In view of the said fact, the authorities under the Sales Tax Act cannot take a contrary view on the question of limitation and the finding recorded by the learned single Judge wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation for assessment or reassessment provided under this sub-section." From a perusal of the language used in sub-clause (2) of section 12 of the Act, it is abundantly clear that normally no notice under sub-section (1) of section 12 shall be issued after the expiry of eight years except where the assessment or reassessment is started as a consequence of any finding or direction contained in an order under section 13, 14 or 15 or an order of any competent court. In the instant case, there is no dispute on the point that the impugned notice has not been issued to the assessee for making assessment in pursuance of any order or direction passed by any court under section 13, 14 or 15. Proviso added to section 12(2) of the Act speaks of two contingencies; the first where reassessment is being made in pursuance of the order, finding or direction contained in an order passed under section 13, 14 or 15 of the Act and the other where reassessment is being done in order to give effect to an order of any competent court. Learned single Judge was of the opinion that since reassessment has been started in order to give effect to a judgment rendered by this Court, the period of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proviso. The other limb of arguments advanced on behalf of the petitioners-appellants is that since the notices issued to the petitioners-appellants were barred by time, the learned single Judge should not have thrown the petitions on the ground of alternative remedy. He submitted that inspite of the fact that the petitionersappellants have an alternative remedy under the Act, this Court has always interfered in cases where the impugned order is without jurisdiction, where the impugned order has been passed in violation of the principles of natural justice or where the notices issued under the fiscal statute are barred by limitation. It is well-settled that where the petitioner has an alternate remedy of agitating the matter before the authorities, specially under the fiscal statute, normally this Court should not interfere under article 226 of the Constitution of India, but sometimes this Court may interfere under article 226 of the Constitution of India inspite of alternate remedy in appropriate cases depending on the facts of each case. Learned counsel for the appellants submits that in case the contention raised by him on the question of limitation is accepted, then this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons stated above, we hold that the impugned notices issued under section 12(1) of the State as well as Central Sales Tax Act relating to the assessment years 1965-66, 1966-67 and 1967-68 are barred by limitation and deserve to be quashed and as far the notices relating to the assessment years 1968-69, 1969-70 and 1970-71 are concerned, they are within time. Learned counsel for the appellants also contended that the learned single Judge has in fact decided the whole case on merits as he has also recorded the finding that since the Supreme Court has held that woollen felt is not the woollen fabric the exemption to the assessee was wrongly allowed. In view of the said finding, he contends that nothing remains to be decided by the tax authorities as the matter has been finally adjudicated upon by this Court itself. We have carefully perused the order passed by the learned single Judge and the said contention raised on behalf of the assessee is well-founded, inasmuch as the learned single Judge has held as under: "The judgment of this honourable Court has been affirmed by the Supreme Court. The Supreme Court also held that woollen felt is not woollen fabric. Since the petitioner g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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