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Harbans Lal Mangal Mal Vs. Punjab State, Through the Excise and Taxation Commissioner, Punjab, Jullundur City - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 16 of 1953
Judge
Reported inAIR1954P& H244
ActsEast Punjab General Sales Tax Act, 1948 - Sections 5, 5(1) and 6; ;Constitution of India - Article 226
AppellantHarbans Lal Mangal Mal
RespondentPunjab State, Through the Excise and Taxation Commissioner, Punjab, Jullundur City
Appellant Advocate H.L. Sibal and; C.L. Aggarwal, Advs.
Respondent Advocate S.M. Sikri, Adv. General
DispositionPetition allowed
Cases ReferredV. N. Wanchoo v. Collector of Delhi
Excerpt:
.....high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a..........'maida' for the years 1949-50 and 1950-51 should not be quashed.2. the petitioner is a dealer in wheat-flour. in 1942 on his enquiry he was informed by the then financial commissioner that the expression 'wheat-flour' used in section 5 (i) (b), punjab general sales tax act of 1941, should be construed according to its dictionary meaning so as to include 'maida', 'suji' and 'rawa'. the petitioner again wrote tothe deputy excise and taxation commissioner, jullundur, on 19-11-1951, to clarify wnetner maida and 'atta' came within the term 'wneat-flour or not. to this the reply of this officer is dated 24-11-1951 in which he said that 'maida' and 'atta' were both exempt from the sales-tax. the gentleman who wrote this letter is b. l ahuja.3. on 10-12-1951; and 11-7-1952, the petitioner was.....
Judgment:

Kapur. J.

1. This rule is directed against the Punjab State through the Excise and Taxation Commissioner, Punjab, calling upon them to show cause why the order made against the petitioner requiring him to pay sales-tax in regard to sales of 'maida' for the years 1949-50 and 1950-51 should not be quashed.

2. The petitioner is a dealer in wheat-flour. In 1942 on his enquiry he was informed by the then Financial commissioner that the expression 'wheat-flour' used in Section 5 (i) (b), Punjab General Sales Tax Act of 1941, should be construed according to its dictionary meaning so as to include 'maida', 'suji' and 'rawa'. The petitioner again wrote tothe Deputy Excise and Taxation Commissioner, Jullundur, on 19-11-1951, to clarify wnetner maida and 'atta' came within the term 'wneat-flour or not. To this the reply of this officer is dated 24-11-1951 in which he said that 'maida' and 'atta' were both exempt from the sales-tax. The gentleman who wrote this letter is B. L Ahuja.

3. On 10-12-1951; and 11-7-1952, the petitioner Was assessed for the years 1949-50 and 1950-51 on the sales made by his firm during these two years. Appeal was taken by the petitioner to the Deputy Excise and Taxation Commissioner who was the same B. L. Ahuja and he held in this appeal that

' 'Maida' is a fine product extracted from wheatbut it is certainly not wheat-flour and as suchis not covered by item No. 1 of the schedule ofexemptions.'

And he thereupon dismissed the appeal. The petitioner went in revision to the Excise and Taxation Commissioner, Jullundur, on 3-5-1952, but this Tribunal has not heard the appeal, and on 6-8-1952, on behalf of the Commissioner one P. K. Kapur, Personal Assistant, said that the application was not ripe for hearing.

4. The petitioner submits that this is a case which is not covered by the rule laid down by this Court in -- 'Bharam Chand & Bros. v. Excise and Taxation Commr.' AIR 1953 Punj. 27 (A) nor by the rule which we have laid down today in -- 'Civil Writ No. 309 of 1952 (Funj) (B)' but falls within the rule laid down in -- 'V. N. Wanchoo v. Collector of Delhi', AIR 1952 Pun] 263 (C). The Excise and Taxation Commissioner on 21-12-1951, issued a general instruction in which he stated that 'maida' and 'suji' are not included in wheat-flour and are therefore taxable under the Act and he instructed his subordinates that they should apply this interpretation to their orders of assessment. Ho has therefore precluded himself from giving an unbiased hearing and deciding the revision petition of the petitioner. And in spite of the fact that the revision petition of the petitioner was filed in May 1952, it has not yet been heard.

5. Wheat-flour was interpreted by the Financial Commissioner according to the dictionary meaning so as to include 'maida', 'suji' and 'rawa'. The very gentleman who has dismissed the petitioner's appeal under Section 20 of the Sales Tax Act, 1948, himself wrote to the petitioner on 24-11-1951, that 'maida' and 'atta' were exempt from sales-tax. How he has come to a different conclusion is not clear from his order. I am unable to agree with the interpretation put on 'wheat-flour' by the Excise and Taxation Commissioner. It cannot be said that 'maida' is not included in the word 'wheat-flour.' Flour according to the dictionary meaning is

'the finer portion of meal (wheat or other) whichis separated by bolting; and hence the fine softpowder of any substance'.

Maida, therefore, is, according to the dictionary meaning, included in the word 'wheat-flour'. I do not know of any definition of the word 'wheat-flour' which has ever excluded 'maida'. I would therefore, hold that 'maida' is excluded under item 1 of the schedule under Section 6.

6. The petitioner went up in appeal in accordance with the machinery provided for by the Sales Tax Act. He also filed a revision petition which has not yet been heard and it appears that Excise and Taxation Commissioner has by issuing a circular excluded himself from correctly interpreting the words 'wheat' and its 'flour'. And the petitioner's revision petition is not being heard. In this case therefore I am of the opinion that the rule in 'AIR 1952 Punj 268 (C)' applies and I would therefore, issue a writ of certiorari quashing the order calling upon the petitioner to pay sales-tax and wouldmake the rule absolute. The petitioner will have his costs. Counsel fee Rs. 100/-

Falshaw, J.

7. I agree.


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