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Laxmi Ginning and Oil Mills Vs. the Deputy Excise and Taxation Commissioner (Appeals) and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petition No. 1993 of 1977
Judge
Reported in[1978]41STC127(P& H)
AppellantLaxmi Ginning and Oil Mills
RespondentThe Deputy Excise and Taxation Commissioner (Appeals) and ors.
Appellant Advocate Bhagirath Dass and; S.K. Hirajee, Advs.
Respondent Advocate D.S. Boparai, Assistant Adv.-General
DispositionPetition allowed
Cases ReferredIn Atma Ram v. State of Punjab A.I.R.
Excerpt:
.....appeal without payment of tax or penalty if it is satisfied that the dealer or the assessee is unable to pay the tax assessed or the penalty, if any, or both, which might have been imposed. if the appellate authority could hear the appeal on payment of no tax at all, we fail to understand how it can be said that such an authority cannot order deferred payment of tax or its payment in instalments......tribunal has not fixed any time for the petitioner-firm to pay the arrears of tax for having its appeal entertained on merits, we might do so in these proceedings but we should refrain from giving any judgment on the merits of the controversy.5. the relevant portion of article 226 of the constitution reads as under:226. power of high courts to issue certain writs.-(1) notwithstanding anything in article 32 but subject to the provisions of article 131a and article 226a, every high court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition,.....
Judgment:

M.R. Sharma, J.

1. The petitioner-firm is a registered dealer under the Punjab General Sales Tax Act (hereinafter called the Act) and is carrying on the business of sale, purchase and manufacture of paddy and oil-seeds. For the assessment year 1975-76, the petitioner-firm filed quarterly returns and deposited the tax in accordance with Section 10 of the Act amounting to Rs. 1,46,045.02. It disputed the levy of tax on paddy and oil-seeds on various grounds but the position taken by it was not accepted by the Assessing Authority, Ludhiana, who, vide its order dated 13th August, 1976, created an additional liability of Rs. 4,20,043.52. This did not include the amount of Rs. 1,46,045.02, which had already been paid by the petitioner-firm. Against the assessment order dated 13th August, 1976, the petitioner-firm filed an appeal under Section 20(1) of the Act along with an application under Section 20(5) for the entertainment of the appeal without payment of tax, which came up for hearing before the Deputy Excise and Taxation Commissioner, Patiala Division, on 28th October, 1976. On that date, the request of the petitioner-firm under Section 20(5) of the Act was considered by the appellate authority and it was allowed to pay the tax in monthly instalments of Rs. 20,000, the last instalment being of Rs. 20,043. The said authority ordered that the appeal would be entertained and decided on merits on payment of the first instalment of Rs. 20,000.

2. The Excise and Taxation Commissioner, exercising powers under Section 21(1) of the Act sent for the records of the case and after giving hearing to the parties concerned, held that there was no provision in the Act which entitled the appellate authority to order that arrears of tax be paid in instalments as envisaged by Section 20(5) of the Act. The assessee filed a revision under Section 21(3) of the Act, which was disposed of by the learned Presiding Officer of the Sales Tax Tribunal, Punjab, vide his order dated 4th July, 1977, with the following observations:

There is no such situation envisaged in law where an appeal can be entertained only after payment of one instalment out of the several instalments ordered to be paid and the hearing of the appeal can come to a close or stay of the recovery of the entire amount getting vacated in case there is default in payment of future instalments. The position envisaged in law is simple that either the entire amount is required to be paid or a part of that amount is required to be paid before the appeal is actually entertained. There is no third position. Of course, there will be no bar to such part of the amount as may be required, being paid in instalments but in that case such amount will be deemed to have been paid only when the last instalment has been paid and the appeal can be entertained only thereafter. Also because of this clear contradiction in the order of the Deputy Excise and Taxation Commissioner, namely, fixing payment in instalments and yet in the same breath entertaining the appeal after only the first instalment, the order is improper. In view of the foregoing discussion, I find no reason to interfere with the order of the Excise and Taxation Commissioner and dismiss the revision accordingly.

3. The petitioner-firm has come up in this petition and challenges the legality of the view entertained by the Excise and Taxation Commissioner and the learned Presiding Officer, Sales Tax Tribunal, Punjab.

4. Shri Boparai, appearing on behalf of the State, has raised a preliminary objection that it is open to the assessee to request the Tribunal to state the case for our opinion under Section 22(1) of the Act and since this remedy is available to it, we should not interfere in exercise of our powers under Article 226 of the Constitution. He has further submitted that even if the learned Presiding Officer of the Sales Tax Tribunal has not fixed any time for the petitioner-firm to pay the arrears of tax for having its appeal entertained on merits, we might do so in these proceedings but we should refrain from giving any judgment on the merits of the controversy.

5. The relevant portion of Article 226 of the Constitution reads as under:

226. Power of High Courts to issue certain writs.-(1) Notwithstanding anything in Article 32 but subject to the provisions of Article 131A and Article 226A, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,-

(a) for the enforcement of any of the rights conferred by the provisions of Part III; or

(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder ; or

(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (b) where such illegality has resulted in substantial failure of justice.

(2)....

(3) No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.

(4)....

6. A plain reading of this article shows that this court would be incompetent to entertain a petition under this article if the injury complained of is covered by Sub-clause (b) and Sub-clause (c) of Clause (1) and the petitioner-firm has a right to have recourse to any other remedy provided by law. Clause (3) does not apply in case the grievance made in a petition under Article 226 of the Constitution is covered by Sub-clause (a) of Clause (1) which relates to the enforcement of the fundamental rights. It is settled law that if tax is sought to be recovered by the revenue from a citizen in contravention of the relevant statutory provisions, his fundamental right to hold property gets violated. In this view of the matter, we are not inclined to uphold the preliminary objection raised by Shri Boparai. Furthermore, while suggesting that we should grant the petitioner-firm time to make the payment of the arrears of tax so that it may have its appeal entertained and decided on merits, the learned counsel has by implication conceded our jurisdiction to entertain this petition.

7. Coming now to the merits of the case, Section 20(5) of the Act reads as under:

No appeal shall be entertained by an appellate authority unless such appeal is accompanied by satisfactory proof of the payment of the tax or of the penalty, if any, imposed or of both, as the case may be :

Provided that if such authority is satisfied that the dealer is unable to pay the tax assessed or the penalty, if any, imposed or both, he may, for reasons to be recorded in writing, entertain the appeal without the tax or penalty or both having been paid or after part payment of such tax or penalty or both.

8. This provision entitles the appellate authority to entertain the appeal without payment of tax or penalty if it is satisfied that the dealer or the assessee is unable to pay the tax assessed or the penalty, if any, or both, which might have been imposed. If the appellate authority could hear the appeal on payment of no tax at all, we fail to understand how it can be said that such an authority cannot order deferred payment of tax or its payment in instalments. The reason is that if such an authority can grant a greater relief to an assessee, the law would assume that it would have jurisdiction to grant any smaller relief. In Atma Ram v. State of Punjab A.I.R. 1959 S.C. 519, the court explained the meaning of the maxim omne majus continet in se minus and held that any part of the estate would have to be regarded as estate on the principle that the greater contains the lesser. On a parity of reasoning, we hold that where an appellate authority is entitled under the law to give greater relief to an assessee, it would lie within its power to grant it any relief lesser than that. We are accordingly of the view that it was within the jurisdiction of the appellate authority to order the entertainment of the appeal on payment of tax on instalment basis. The view taken by the Excise and Taxation Commissioner and the learned Presiding Officer of the Sales Tax Tribunal, Punjab, runs contrary to the above-quoted maxim as explained by the Supreme Court of India and cannot be allowed to prevail. We accordingly allow this petition, set aside the order dated 8th March, 1977, passed by the Excise and Taxation Commissioner, Punjab and the order dated 4th July, 1977, passed by the learned Presiding Officer, Sales Tax Tribunal, Punjab. We further direct that the appellate authority should decide the appeal expeditiously on merits provided of course the conditions fixed by it regarding the payment of tax in instalments are fulfilled by the petitioner-firm. There shall be no order as to costs.


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