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Amar Chand Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax/VAT
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petiton No. 362 of 1978
Judge
Reported in1979WLN371
AppellantAmar Chand
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases Referred and State v. Ganga Mux Nagar Mal
Excerpt:
.....this stage.;we do not feel persuaded to go into the merits of the case. admittedly, the commercial taxes officer has not given his findings on the points raised by the petitioner in reply to the impugned notice, and the matter is pending before him.;(b) practice circular & two decisions of revenue board of one view & different view in another decision - held, acto to consider all and arrive at a proper finding.;on the one hand there is a circular referred to above & two decisions by the board of revenue holding the view propounded by the learned counsel for the petitioner. on the other hand, a different view has been taken in ambika wine store's case 1976 rrd 162 which goes against the petitioner in this state of case law, we are clearly of the opinion that it would be opezn..........the validity of the notice ex 3 dated november 8, 1977, issued by the assistant commercial taxes officer, a ward, sri ganganagar, circle sri ganganagar, under rule 54 of the rajasthan saks-tax rules, 1955, made by the state of rajasthan in exercise of its powers conferred by section 26 of the rajasthan sales-tax act (no. 29 of 1954).2. the relevant facts giving rise to this petition may be stated within a narrow compass. the petitioner is a registered dealer under the rajasthan sales-tax act. he purchased poppy heads (there is a dispute between the parties as to whether the article in question is poppy-head or lanced poppy-head) during the accounting year 1976-77 from certain dealer & paid the raj salts-tax at the time of purchase on the purchase price. however, the assistant.....
Judgment:

C.M. Lodha, C.J.

1. By this petition under Article 226 of the Constitution, the petitioner has challenged the validity of the notice Ex 3 dated November 8, 1977, issued by the Assistant Commercial Taxes Officer, A Ward, Sri Ganganagar, Circle Sri Ganganagar, under Rule 54 of the Rajasthan Saks-tax Rules, 1955, made by the State of Rajasthan in exercise of its powers conferred by Section 26 of the Rajasthan Sales-tax Act (No. 29 of 1954).

2. The relevant facts giving rise to this petition may be stated within a narrow compass. The petitioner is a registered dealer under the Rajasthan Sales-tax Act. He purchased poppy heads (there is a dispute between the parties as to whether the article in question is poppy-head or lanced poppy-head) during the accounting year 1976-77 from certain dealer & paid the Raj salts-tax at the time of purchase on the purchase price. However, the Assistant Commercial Taxes Officer, Sri Ganganagar, issued the impugned notice to him to show cause why tax should not be assessed on the sale-price realised by him on the poppy heads in question on the ground that the article in dispute is taxable at the last point. Certain other points have also been raised in the notice but we do not consider it necessary to refer to them, as the arguments addressed by the learned Counsel for the parties are confined only to the question whether the petitioner is liable to pay tax on the last point. The contention raised on behalf of the petitioner is that tax having been realised on the turn-over at the first point, it is not open to the taxing authority to demand tax on the sale of the same article at the last point. It has also been urged that the tax has been rightly paid on the first point in view of Section 2(e)(iv) of the Act. Shri S.C. Bhandari, appearing or the Assistant Commercial Taxes Officer, has. however, raised a preliminary objection to the entertain ability of the writ petition on the ground that it is premature in as much as only a notice to show cause has been issued to the petitioner & the petitioner has rushed to this Court to invoke its extraordinary jurisdiction Under Article 226 of the Constitution without obtaining orders from the taxing authority. He has also submitted that the mere fact that tax has been paid by the assessee on the first point, will not absolve him of the liability to pay the tax at the last point, in case it is so warranted by law. In this connection, he has invited our attention to the Notification issued by the State of Rajasthan whereby in case of sale of poppy heads, it has been directed that the tax will be levied at the last point.

3. For the reasons, which we are presently going to state, we do not feel persuaded to go into the merits of the case Admittedly, the Commercial Taxes Officer has not given his findings on the points raised by the petitioner in reply to the impuged notice, and the matter is pending before him Of course, we are alive to the argument addressed by Shri Lekh Raj Mehta that where there is complete lack of jurisdiction, the assessee should not be asked to wait till the matter is finally decided. But so far as the case on hand is concerned, it may be pointed out that the assessee has placed reliance on a Circular dated March 25, 1965, according to which it is contended by the assessee that he is not liable to pay tax over again on the last point. But at the same time, it is contended that this Circular has been given a go-by by the Board of Revenue in its judgment in Ambika Wine Store v. ACT, Ward 'D', Kishangarh 1976 RRD 1262, wherein it has been held in similar circumstances that tax would be leviable at the last point even though the goods have been subjected to tax at the first point. In view of the decision in Ambika Wine Store's case 1976 RRD 162 (supra), Shri Lekh Raj Mehta has contended that it would be futile to wait for the decision of the Assistant Commercial Taxes Officer, as he would feel bound by the decision in Ambika Wine Store's case 1976 RRD 162 and thus the petitioner has no remedy left under the Act. We may, how ever, point out that there are two earlier decisions of the Board of Revenue referred to in Ambika Wine Store's case in which a different view has been taken. These two cases are Nadbai Kroya Vikraya Sahakari Samiti Ltd. v. State 1976 TR 175 and State v. Ganga Mux Nagar Mal 1972 RRD 67. Thus the position, as it stands today is that on the one hand there is a circular referred to above and two decisions by the Board of Revenue holding the view propounded by the learned Counsel for the petitioner. On the other hand, a different view has been taken in Ambika Wine Store's case 1976 RRD 162, which goes against the petitioner. In this state of case law, we are clearly of the opinion that it would be open to the Assistant Commercial Taxes Officer to take into consideration all the three decisions by the Revenue Board referred to above, as well as the Circular and to come to a proper finding in the matter. It is enough to point oat that when there are three Single Bench decisions of the Revenue Board, taking a different view in the same matter then the Assistant Commercial Taxes Officer is bound to find himself in an embarrassing position as to which view to follow All that we can say that in such a circumstance, he would be free to follow that judgment which appeals to him the most. It is an established principle of law that it is only a Division Bench decision which will prevail over the decisions of Single Bench. Of course, as & when the matter goes before the Board of Revenue, the Board of Revenue will be well advised to constitute a larger Bench to lay down the law with definiteness and certainty. The petitioner should, therefore, go before the Assistant Commercial Taxes Officer and press his point of view before him. In the facts and circumstances of the case, we are not inclined to interfere at this stage.

4. With these observations, we dismiss the writ petition, but in the circumstances of the case, we make no order as to costs.


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