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Indian Iron and Steel Company Ltd. Vs. the Officer on Special Duty (Central Circle) - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 743 of 1957
Judge
Reported in[1959]10STC150(P& H)
AppellantIndian Iron and Steel Company Ltd.
RespondentThe Officer on Special Duty (Central Circle)
Appellant Advocate Gurbachan Singh, Adv.
Respondent AdvocateM.R. Sharma for The Adv.-General
DispositionPetition dismissed
Cases ReferredState of Bombay and Anr. v. The United Motors
Excerpt:
.....further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments..........object is to short-circuit the procedure prescribed by the statute: vidya prakash and ors. v. the punjab state [1952] 3 s.t.c. 441, dharam chand kishore chand puri and brothers v. excise and taxation commissioner, jullundur and anr. a.i.r. 1953 punj. 27, in the matter of lala lachhman das nayar (h.u.f.) and ors. a.i.r. 1953 punj. 55, and kandhari oil mills, jullundur, and ors. v. excise and taxation commissioner, pnnjab and anr. a.i.r. 1953 punj. 245. on the other hand, mr. gurbachan singh, who appears for the petitioner, contends that he is challenging the order of assessment on the ground that it violates his fundamental right to carry on business as it imposes a tax on the petitioner without legal authority. reliance has been placed upon a number of decisions reported as himmatlal.....
Judgment:

A.N. Bhandari, C.J.

1. This petition under Article 226 of the Constitution raises the question whether the Excise and Taxation Officer was justified in requiring the petitioner to pay a sum of Rs. 1,59,762-12-0 by way of sales tax.

2. The petitioner in the present case is the Indian Iron and Steel Company, Limited, which has its head office at Calcutta and two branches known as Burnpur Works and Kulti Works.

3. On the 7th January, 1954, the petitioner applied to the Excise and Taxation Officer, Ambala, for registration under the Punjab General Sales Tax Act, 1948, without prejudice to its contention that it did not carry on any business in the Punjab and was not a dealer within the meaning of the said Act. A registration certificate was issued to him in due course.

4. On the 25th August, 1956, the Assessing Authority, Punjab, came to the conclusion that the taxable turnover of the petitioner for the year 1953-54 was Rs. 51, 12,408 and that the sales tax payable by the petitioner was Rs. 1,59,762-12-0. The petitioner presented an application before the Deputy Excise and Taxation Commissioner, Jullundur, for permission to prefer an appeal against the order of assessment without payment of taxes, but this application was rejected in due course. On the 24th July, 1957, the petitioner presented the present petition under Article 226 of the Constitution. The grounds on which the validity of the order of assessment was challenged were -

(1) that the sales in respect of which the tax was imposed were in many cases made on F.O.R. Calcutta or ex-works ;

(2) that the contracts under which the said sales were effected were in many cases entered into or accepted by the petitioner at Calcutta and outside the State of Punjab ;

(3) that the said goods were delivered to common carriers who acted as the agents of the purchasers outside the State of Punjab ;

(4) that the said sales took place outside the State of Punjab ; and

(5) that the goods manufactured by the petitioner were sold to customers in the Punjab under contracts which were accepted by customers in the State of Punjab.

5. Two other objections were also raised, namely (1) that the main place of business of the petitioner being in Bengal, it did not carry on any business and was not selling or supplying goods in the Punjab ; and (2) that the Sales Tax Laws Validation Act, 1956, was itself invalid.

6. The learned counsel for the State raises two preliminary objections. He submits in the first place that Sections 20, 21 and 22 of the statute provide not only for appeal and for revision but also for statement of a case to the High Court and that consequently the petitioners were not justified in invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution. Our attention has been invited to a number of decisions which propound the proposition that an application under Article 226 should not be entertained if the object is to short-circuit the procedure prescribed by the statute: Vidya Prakash and Ors. v. The Punjab State [1952] 3 S.T.C. 441, Dharam Chand Kishore Chand Puri and Brothers v. Excise and Taxation Commissioner, Jullundur and Anr. A.I.R. 1953 Punj. 27, In the matter of Lala Lachhman Das Nayar (H.U.F.) and Ors. A.I.R. 1953 Punj. 55, and Kandhari Oil Mills, Jullundur, and Ors. v. Excise and Taxation Commissioner, Pnnjab and Anr. A.I.R. 1953 Punj. 245. On the other hand, Mr. Gurbachan Singh, who appears for the petitioner, contends that he is challenging the order of assessment on the ground that it violates his fundamental right to carry on business as it imposes a tax on the petitioner without legal authority. Reliance has been placed upon a number of decisions reported as Himmatlal Harilal Mehta v. The State of Madhya Pradesh and Ors. A.I.R. 1954 S.C. 403, Bengal Immunity Company Limited v. The State of Bihar and Ors. A.I.R. 1955 S.C. 661 and Kailash Nath and Anr. v. State of U.P. and Ors. A.I.R. 1957 S.C. 790. In any case it is contended that the alternative remedy is onerous as the petitioner is required to pay the tax as a condition precedent to the appeal filed by him being heard: State of Bombay and Anr. v. The United Motors (India) Ltd. and Ors. A.I.R. 1953 S.C. 252.

7. Secondly it is contended that a considerable amount of delay has been occasioned in presenting the present petition for the issue of a writ.

8. After hearing the learned counsel for the parties I entertain no doubt in my mind that the present petition cannot be allowed to proceed further as the facts are in dispute. It has been held repeatedly that a writ should not be required to serve the purpose of a proceeding authorised by a taxing statute and that a writ should not be employed to secure the adjudication of a disputed right for which such proceeding affords a remedy equally adequate and complete. The petitioner states that the goods in respect of which sales tax has been charged were delivered to common carriers who acted as the agents of the purchasers, outside the State of Punjab. The Excise and Taxation Commissioner controverts this allegation and states that the common carriers did not act as the agents of the purchasers. Again, the petitioner alleges that the goods which are the subject-matter of the said sales tax were in many cases delivered ex-works or F. O. R. Calcutta and consequently that the sale of the said goods took place outside the State of Punjab. The respondent denies that the goods which were the subject-matter of the assessment order were delivered ex-works or at Calcutta. He avers that the only price settled was on the basis of ex-works or F. 0. R. Calcutta, but the goods were actually delivered at their destination in the Punjab. The petitioner alleges that he is not a dealer, but the respondent contends that he is.

9. The present petition must in my opinion be dismissed-(a) because another remedy equally adequate and efficacious is available; (b) because it has not been alleged, far less proved, that the respondent has exceeded his jurisdiction; (c) because our attention has not been invited to any error which is apparent on the face of the record ; and (d) because facts are in dispute which ought primarily to be decided by the administrative authorities concerned.

10. The validity of the Sales Tax Laws Validation Act, 1956, was challenged when the writ petition was first presented, but this challenge was given up when the petition came to be argued before us.

11. For these reasons I would dismiss the petition but would make no order as to costs.

12. This order also disposes of Civil Writs Nos. 744, 745 and 746 of 1957, and Civil Writ No. 313 of 1955 as the main points involved in all these petitions are common.

DOLAT, J.

13. I agree,


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