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Pareek Hosiery Products Vs. Deputy Commissioner of Sales Tax (Appeals) and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petition No. 376 of 1960
Judge
Reported in[1962]13STC722(Raj)
AppellantPareek Hosiery Products
RespondentDeputy Commissioner of Sales Tax (Appeals) and ors.
Appellant Advocate J.P. Jain, Adv.
Respondent Advocate B.C. Chatterji, Deputy Government Adv.
DispositionPetition allowed
Cases ReferredIn Buchi Rajalingam v. State of Hyderabad
Excerpt:
- - even thereafter he submitted his quarterly returns in 1958 as well, as in a part of 1959 on the old basis......before us that the value of each piece manufactured by the petitioner is less than rs. 4. the word 'garment' in webster's new 20th century dictionary (1956 edition) means :1(a) any article of clothing ; (b) (p1.) clothes, costume. 2. covering.8. in oxford dictionary the word 'garment' has been stated to mean : 'any article of dress; in sing. esp., an outer vestment, in pl. clothes.9. the learned deputy government advocate stressed that it only meant an outer covering as distinguished from an underwear. we regret we are unable to accept this qualification sought to be put by the learned counsel. in its primary meaning 'garment' means any article of clothing irrespective of the fact whether it is visible to another or not. it is the use of covering human body which gives content to.....
Judgment:

B.P. Beri, J.

1. This is a writ petition under Article 226 of the Constitution of India praying for a writ in the nature of prohibition restraining the Deputy Commissioner, Sales Tax, Assistant Sales Tax Officer and the State of Rajasthan, respondents Nos. 1, 2 and 3 respectively, from recovering any sales tax on certain hosiery goods manufactured and sold by the petitioner and for quashing the order of the respondent No. 2, dated 29th June, 1960.

2. The petitioner carries on the business of manufacturing amongst other articles cotton vests (banians), underwears (jangias), mufflers and 'topas', the cost of which does not exceed Rs. 4 each, in the City of Jaipur. The State Government, respondent No. 3, in exercise of its powers conferred by Sub-section (2) of Section 4 of the Rajasthan Sales Tax Act, 1954 (Act XXIX of 1954), by Notification No. F. 5(3),E&T;/58 dated 31st January, 1958, exempted from the levy of sales tax, 'the sale of any garment whether prepared within or imported from outside Rajasthan the value of which does not exceed Rs. 4 in single piece, from payment of any tax under the said Act'. The petitioner kept on submitting his returns until June, 1958, without claiming exemption under the notification when he learnt of the existence of this notification. Even thereafter he submitted his quarterly returns in 1958 as well, as in a part of 1959 on the old basis. When the question of assessment came up before the Sales Tax Officer, Jaipur City, Circle 'B', on 29th June, 1960, for the year 1958-59, on behalf of the petitioner an objection was taken that his total turnover consisted of sales of underwears, cotton vests etc., the price of each piece of which did not exceed Rs. 4 and, therefore, was exempted under the notification mentioned above. The Assistant Sales Tax Officer dealing with the case held that although on test check it was found that the sale price of the goods sold by the petitioner did not exceed Rs. 4 a piece, nevertheless they were not the garments which were exempt from tax under the notification. He accordingly rejected the contention of the petitioner and made him liable to pay the tax less what he had already paid. A demand was served upon the petitioner against which he preferred an appeal but the Deputy Commissioner, Sales Tax (Appeals) refused to entertain the appeal unless the tax was deposited as required by the law. The petitioner has now come up by means of this petition to this Court and has asked for reliefs, we have already noticed.

3. The respondents have contested the present petition, without disputing the facts, mainly on the ground that the petitioner had an alternative remedy by way of an appeal and reference under the Sales Tax Act and due to the existence of such an alternative remedy this Court should decline to exercise its jurisdiction under Article 226 of the Constitution. It was further urged in the course of the arguments that a garment means an outer covering and did not include the articles manufactured by the petitioner.

4. Before we proceed to examine the merits of the case it will be appropriate to consider the preliminary objection raised by the respondents. It is correct to state that under the Rajasthan Sales Tax Act, 1954, remedies by way of appeal, revision and reference are provided. It is equally true that an appeal cannot be heard unless the tax demanded has already been deposited. The learned counsel for the petitioner urged that this Court should interfere firstly because the petitioner having already appealed but his appeal was not entertained merely because he had to deposit the demanded tax as a condition precedent for the hearing of his appeal. Therefore, the alternative remedy is an onerous one. Secondly, he has placed before us a judgment of the Deputy Commissioner, Sales Tax, (Appeals), Jaipur, M/s. Nisar Ahmed Faiyaz Ahmed, Jaipur, in relation to the case of another assessee wherein he had held that hosiery goods are not garments and, therefore, are not exempted from sales tax. In this view taken by the Deputy Commissioner, Sales Tax, it is submitted on behalf of the petitioner, no useful purpose would be served in pursuing the appeal when the Sales Tax Appellate Authority has already taken a view which is adverse to the petitioner. He invited our attention to Calcutta Discount Co. v. Income-tax Officer (1961) A.I.R. 1961 S.C. 372, Bengal Immunity Co. v. State of Bihar (1955) A.I.R. 1955 S.C. 661, Himmatlal v. State of Madhya Pradesh (1954) A.I.R. 1954 S.C. 403, Firm Murlidhar Brij Mohan v. State of Rajasthan (1957) R.L.W. 431 and Buchi Rajalingam v. State of Hyderabad (1954) A.I.R. 1954 Hyd. 1. In Calcutta Discount Co. v. Income-tax Officer (1961) A.I.R. 1961 S.C. 372, a notice under Section 34 of the Indian Income-tax Act was issued, the validity of which was challenged. On behalf of the Income-tax Officer it was submitted that the assessee would have had sufficient opportunity to raise the question whether the Income-tax Officer had reason to believe that under-assessment had resulted from non-disclosure of material facts in the course of assessment proceedings and if necessary before the Appellate Officer or the Appellate Tribunal or the High Court. Their Lordships held that 'the existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action.' When it was submitted that the assessment order had already been passed their Lordships held that there being an assessment order did not prevent the petitioner from getting the relief under Article 226 of the Constitution and the petitioner was entitled to an additional relief of quashing of the order.

5. In Himmatlal v. State of Madhya Pradesh [1954] 5 S.T.C. 115, their Lordships of the Supreme Court observed as follows :

Moreover, the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy.

6. In the case of Bengal Immunity Co. v. State of Bihar [1955] 6 S.T.C. 446 also the writ petition was held maintainable on the ground that the vires of law itself was challenged. In the case of our own High Court in Firm Murlidhar Brijmohan v. State of Rajasthan (1957) R.L.W. 431, an objection was taken that specific procedure directed under the Sales Tax Act existed and it was, therefore, for the petitioner to appeal and that this Court should not interfere at that stage. In this case whether groundnut oil was or was not exempt from sales tax was in question. In that case there was a confidential circular issued by the Sales Tax Commissioner to the effect that the groundnut oil is not edible oil and should, therefore, be taxed. Having regard to this circumstance this Court did interfere and granted relief to the petitioner. In Buchi Rajalingam v. State of Hyderabad [1954] 5 S.T.C. 401, it has been observed that it is desirable for the High Court to issue an appropriate writ by way of guidance in the matters affecting sales tax. In our opinion, whether the petitioner should be refused relief in proceeding under Article 226 of the Constitution on account of the availability of alternative remedies, no hard and fast rule can possibly be laid down. We have already taken note of the considerations which have induced the Courts to interfere. Therefore, in the circumstances set out in the present case we are not inclined to leave the petitioner to pursue his remedies of appeal particularly because it is available to him only on payment of the tax and further he is not likely to get any relief as the appellate authority had already expressed the opinion in another case. In these circumstances we reject the preliminary objection raised by the learned counsel for the respondents.

7. Coming to the merits of the case the word which calls for our interpretation is 'garment'. It is not disputed before us that the value of each piece manufactured by the petitioner is less than Rs. 4. The word 'garment' in Webster's New 20th Century Dictionary (1956 Edition) means :

1(a) any article of clothing ; (b) (p1.) clothes, costume.

2. Covering.

8. In Oxford Dictionary the word 'garment' has been stated to mean : 'Any article of dress; in sing. esp., an outer vestment, in pl. clothes.

9. The learned Deputy Government Advocate stressed that it only meant an outer covering as distinguished from an underwear. We regret we are unable to accept this qualification sought to be put by the learned counsel. In its primary meaning 'garment' means any article of clothing irrespective of the fact whether it is visible to another or not. It is the use of covering human body which gives content to the word. Besides articles such as muffler or caps normally constitute an outer covering. Under the notification there is no qualification, except its price, mentioned to distinguish garments before they are exempted from tax. Rather the word 'any' preceding the word 'garment' has the tendency of widening its amplitude. We see no reason to import any qualification either.

10. In another assessee's case the Deputy Commissioner Sales Tax (Appeals) distinguished 'garment' from articles made by the process of hosiery. We have already observed that the kernel of the word 'garment' appears to lie in the use to which it is put, viz., an article of dress intended for covering human body rather than the process by which the material was manufactured out of which it has been made. This argument also, therefore, does not appeal to us.

11. In this view of the matter this writ petition is allowed. The order of the Assistant Sales Tax Officer dated 29th June, 1960, is quashed and he is further directed to refund the tax already realised from the petitioner on the sale of such articles as are garments on the view of law taken by us. The respondents shall pay the costs of the petitioner.


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