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Dassmal Ram Labhaya Vs. Mahabir Singh, Financial Commissioner - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 1163 of 1971
Judge
Reported in[1986]61STC58(Delhi)
ActsBengal Finance (Sales Tax) Act, 1941 - Sections 2(1) 20(3) and 21
AppellantDassmal Ram Labhaya
RespondentMahabir Singh, Financial Commissioner
Excerpt:
the case focused on the petition filed under article 226 of the constitution of india, challenging the order of sales tax officer, denying the exemption of sales tax - it was observed that there existed an alternate remedy to seek reference to high court, by filing an application under section 21 of the bengal finance (sales tax) act, 1941, addressed to financial commissioner - in view of the alternate remedy, it was ruled that petition was liable to be dismissed - - thereafter, the first revisional authority as well as the second revisional authority also dismissed the respective revision petitions......ram labhaya of loha mandi, motia khan, delhi, had sought exemption of the sales tax on the sale of persian wheel frames manufactured by it for the assessment year 1965-66. the sales tax officer dismissed its plea and held that it was not entitled to the exemption of the sales tax on the sale of the persian wheel frames amounting to rs. 3,05,227.00, on the ground that the said goods manufactured and sold were not agricultural implements. the petitioner appealed against the said order which appeal was dismissed by the assistant commissioner, sales tax. thereafter, the first revisional authority as well as the second revisional authority also dismissed the respective revision petitions. a copy of the order dated 15th december, 1970, of the financial commissioner is annexure 'd' to the writ.....
Judgment:

Charanjit Talwar, J.

1. The petitioner herein, firm Dassmal Ram Labhaya of Loha Mandi, Motia Khan, Delhi, had sought exemption of the sales tax on the sale of Persian wheel frames manufactured by it for the assessment year 1965-66. The Sales Tax Officer dismissed its plea and held that it was not entitled to the exemption of the sales tax on the sale of the Persian wheel frames amounting to Rs. 3,05,227.00, on the ground that the said goods manufactured and sold were not agricultural implements. The petitioner appealed against the said order which appeal was dismissed by the Assistant Commissioner, Sales Tax. Thereafter, the first revisional authority as well as the second revisional authority also dismissed the respective revision petitions. A copy of the order dated 15th December, 1970, of the Financial Commissioner is annexure 'D' to the writ petition. By the present petition the challenge is to the orders of the assessing authority on the ground that the Persian wheel frames sold by the petitioner is an agricultural implement and a such was exempted boy item 29 of the Schedule to the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi (herein referred to as 'the Act').

2. The plea of the petitioner is that the said revisional order and the other orders of the sales tax authorities are illegal and without jurisdiction.

3. Mr. R. S. Mittal, the learned counsel for the respondents, at the outset has taken a preliminary objection to the maintainability of the writ petition. He has referred to section 21 of the Act, wherein, it is provided that it is open to a dealer to file an application before the Financial Commissioner seeking reference to the High Court of any question of law arising out of the impugned order. As this argument has a bearing on the decision of this petition, it is useful to quote section 2(1) of the act. It reads :

'21, Statement of case to High Court. - (1) Within sixty days from the passing by the Chief Commissioner of any order under sub-section (3) of section 20 affecting any liability of any dealer to pay tax under this Act, such dealer or the Commissioner may, by application in writing, and accompanied in the case of an application by a dealer by a fee of one hundred rupees, require the Chief Commissioner to refer to the High Court any question of law arising out of such order.'

4. Admittedly, the petitioner did not filed any such application before the Financial Commissioner. I have gone through the impugned order of the Financial Commissioner. It appears that on facts it was held that the item which was manufactured and sold by the petitioner was not meant for exclusive use in the Persian wheel; it could be used for other purposes also. As noticed by the learned Financial Commissioner this position had been 'tacitly admitted by the learned counsel for the petitioner'. The item manufactured consisted of two 'joists' comprising the base of the Persian wheel. In view of this finding of fact it cannot be held that the item manufactured and sold by the petitioner was an agricultural implement. At any rate, the preliminary objection raised by Mr. Mittal has to be upheld.

5. The result is that the writ petition, which is devoid of any merit, is dismissed. No order as to costs.


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