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Sita Ram Joginder Kumar Vs. the Assistant Commissioner of Sales Tax, Delhi and Another - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtDelhi High Court
Decided On
Case NumberWrit Petitions Nos. 1216, 1217, 1218, 1219 and 1220 of 1973
Judge
Reported in[1983]54STC19(Delhi)
ActsBengal Finance Sales Tax Act, 1941 - Sections 20(3) and 21
AppellantSita Ram Joginder Kumar
RespondentThe Assistant Commissioner of Sales Tax, Delhi and Another
Cases ReferredMadhya Pradesh v. Chhotelal Bharosilal
Excerpt:
in the instant case, the writ petitioner filed revision and the cases were fixed for hearing on a day which happened to be a holiday - the next day the assistant commissioner decided suo motu revision in the absence of the assessed - it was observed that the punjab high court rules and orders did not apply to the authorities or the tribunal under the bengal finance sales tax act, 1941 - the order was passed in the presence of the assessed and no revision was preferred - a demand notice was issued and a writ petition was filed in 1973 after four years delay - it was held that since the petitioner did not pursue the remedy provided under the act, the writ petition was not maintainable. - .....against the petitioners.civil writs nos. 1216, 1217, 1218 and 1220 of 1973. 5. four of the present writ petitioners, namely, the petitioners in civil writs nos. 1216, 1217, 1218 and 1220 of 1973 filed revision before the chief commissioner under section 20(3) of the act. he dismissed the revision petition on the ground of limitation on 27th august, 1970. the petitioners sought a reference to the high court under section 21 of the act. the lt. governor declined to make the reference in 1970. the writ petitions were filed in 1973. 6. what happened between 1970 and 1973 was this. in 1971 a case of a firm m/s. kundan lal mohan lal came before the commissioner of sales tax. the question in that case was the same as here. exercising his suo motu revisional jurisdiction and basing himself on.....
Judgment:
ORDER

Avadh Behari Rohatgi, J.

1. These are five writ petitions (Civil Writs Nos. 1216, 1217, 1218, 1219 and 1220 of 1973) challenging the order of the Assistant Commissioner of Sales Tax dated 1st March, 1969, read with the demand notice dated 2nd May, 1973.

2. The petitioners carry on business of fresh fruits and khajoors. They were dealing in dates, namely, khajoors, at the relevant time. The dispute relates to khajoors.

3. For the assessment year 1964-65 the petitioners duly submitted returns of their turnover. They computed sales tax on the item in dispute, that is, khajoors, at the rate of 1 per cent treating it as a dry fruit. They deposited the tax accordingly. The assessment was completed.

4. The Assistant Commissioner of Sales Tax by his order dated 1st March, 1969, interfered with the order of the Sales Tax Officer in exercise of his powers of suo motu revision under section 20(3) of the Bengal Finance Sales Tax Act, 1941, as extended to Delhi (the Act). He held that the Sales Tax Officer was in error in assessing this item of khajoor at 1 per cent. He took the view that the khajoors are neither fresh fruits nor dry fruits and thereforee are taxable at 5 per cent as general and unclassified items. In the result he revised the assessment orders and raised demands against the petitioners.

Civil Writs Nos. 1216, 1217, 1218 and 1220 of 1973.

5. Four of the present writ petitioners, namely, the petitioners in Civil Writs Nos. 1216, 1217, 1218 and 1220 of 1973 filed revision before the Chief Commissioner under section 20(3) of the Act. He dismissed the revision petition on the ground of limitation on 27th August, 1970. The petitioners sought a reference to the High Court under section 21 of the Act. The Lt. Governor declined to make the reference in 1970. The writ petitions were filed in 1973.

6. What happened between 1970 and 1973 was this. In 1971 a case of a firm M/s. Kundan Lal Mohan Lal came before the Commissioner of Sales Tax. The question in that case was the same as here. Exercising his suo motu revisional jurisdiction and basing himself on the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh v. Chhotelal Bharosilal [1966] 18 STC 179, he held that khajoors were taxable at 5 per cent. Kundan Lal Mohan Lal went in revision to the District Judge. The District Judge remanded the matter. After remand the Commissioner of Sales Tax passed on order on 29th March, 1971, holding that khajoors were dry fruits and that they were taxable at 1 per cent. He was of the view that there was no cause of action for a suo motu revision because the Sales Tax Officer had rightly proceeded on the view that the khajoors are taxable at 1 per cent. The petitioners in the four writ cases to which I have referred say that they were under the impression that the sales tax authorities will obey the order pronounced in Kundanlal Mohanlal and treat these petitioners on the same footing as M/s. Kundan Lal Mohan Lal. thereforee, they took no steps after 1970 because the decision by the Commissioner on 29th March, 1971, went in their favor. But the department, it seems, took a different view. They thought that the order dated 1st March, 1969, in these four cases had become final and thereforee they issued a demand notice on 2nd May, 1973, demanding sales tax in accordance with the suo motu revisional order of the Assistant Commissioner holding that khajoors are taxable at 5 per cent. These writ petitions were filed on 13th September, 1973.

7. Mr. Mittal on behalf of the sales tax department says that the order dated 1st March, 1969, has attained finality and the petitioners are guilty of laches and delay because they filed the present writ petitions as late as 13th September, 1973. Mr. Chawla, on the other hand, on behalf of the petitioners, contends that the order of the Assistant Commissioner dated 1st March, 1969, is a nullity in law because the petitioners in these four cases with which I am dealing at present were never heard in the proceedings of suo motu revision which the Assistant Commissioner had himself started. He issued notices of suo motu revision to these petitioners for 20th February, 1969. On that day these four cases were adjourned to 28th February, 1969. 28th February, 1969, happened to be a holiday because of Id-ul-zuha. The cases were thereforee not taken up on that day. On the next day, that is, 1st March, 1969, the Assistant Commissioner decided the suo motu revision 'in absentia', as he himself calls it. He did not issue any notice to the petitioners. He took the view that under the Punjab High Court Rules and Orders the petitioners were bound to appear before him on the following day if the previous day was declared a holiday. So he made the order in question in absentia. The question is : Could he make an order on 1st March, 1969, as he did, without hearing the petitioners on the ground that the Punjab High Court Rules and Orders empowered him to do so I think, he was in error. The Punjab High Court Rules and Orders do not apply to the authorities under the Act. The authorities are tribunals. The Punjab High Court Rules and Orders apply to civil and criminal courts under the Punjab High Court. They apply to the High Court also. But they do not apply to the authorities or the tribunals constituted under the Act. The tribunals can evolve a procedure of their own. They are not governed by any rigid procedure. All that they have to do is that they must observe the principles of natural justice. They must hear the parties. That is a duty laid on anyone who has to decide a controversy. The decider cannot decide behind the back of the parties. thereforee, I have reached the conclusion that the order dated 1st March, 1969, was a nullity. On this short ground these four writ petitioners are entitled to succeed. The order dated 1st March, 1969, is quashed. The demands are quashed. These four cases (Sita Ram Joginder Kumar; C.W. No. 1216 of 1973, M/s. Girdhari Lal : C.W. No. 1217 of 1973, M/s. Om Prakash : C.W. No. 1218 of 1973 and Sardar Rawal Singh & Co. : C.W. No. 1220 of 1973) will go back of the Assistant Commissioner of Sales Tax. He will decide the suo motu revision after hearing the petitioners. The petitioners are directed to appear before him on 16th December, 1982. The four writ petitions are allowed on these terms. The parties are left to bear their own costs.

C.W. No. 1219 of 1973.

7. Now I take up the fifth petition of Gulati Fruits Co. (C.W. No. 1219 of 1973). The facts in this case are entirely different. The impugned order in this case of the Assistant Commissioner of Sales Tax assessing khajoors at 5 per cent is dated 24th March, 1969. On 24th March, 1969, the petitioners were present. They were heard. The impugned order was made in their presence. They did not prefer any revision to the Chief Commissioner as is provided in law. The only step that they took is that they filed the present writ petition in this Court on 13th September, 1973. There is great delay in this case. On the ground of delay and on the ground that the petitioners have not pursued the remedy provided to them under the Act, they are not entitled to invoke the extraordinary jurisdiction of this Court. For this reason this writ petition (C.W. No. 1219 of 1973) is dismissed. The parties are left to bear their own costs.


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