M.L. Shrimal, J.
1. The petitioner M/s Rajasthan Felts Manufacturing Company is a partnership firm engaged in the business of manufacturing woollen felts etc It is a registered dealer under the Rajasthan Sales-tax Act and the Central Sales-Tax Act.
2. For the assessment year 1968-69, the petitioner firm filed return claiming exemption from salts tax on the sale of woollen felts. The Sales-Tax Officer, by his assessment order Ex 1 dated November 3, 1969, allowed the exemption and raised no demands. The exemption was sought on the ground that woollen felts manufactured and sold by it was woollen fabric and was subject to additional excise duty on and from August 25, 1965 and as such levy of sales tax was not attracted to it. The Sales tax Officer held that the woollen felts produced by the petitioner was woollen fabric and was a declared item under Section 14 of the Central Sales-tax Act. It is urged that other manufacturers like that of the petitioner were also exempt from payment of sales-tax and in the case of Messrs S. Zoraster and Company, Jaipur, the Additional Commissioner, Commercial Taxes, Rajasthan Jaipur., determined the question in case No 23(56) M/ST/156 vide judgment dated November 22, 1960 that the woollen fabrics were subject to levy of additional excise duty under the Additional Duties of Excise (Goods of Special Important) Act, 1957 and the woollen felts manufactured and sold by Messrs S. Zoraster and Company was covered by entry 18 of the Schedule appended to the Rajasthan Sales-tax Act, 1954 and on the basis of this judgment. Messrs S. Zoraster and Company and the other similar woollen felt manufacturers were being treated as exempt from payment of sales-tax both under the Rajasthan Sales tax Act and the General Sales-tax Act.
3. That Messrs. Section Zoraster and Company, dealing in similar products as that of the petitioner, filed a writ petition before the Division Bench (No. 1163 of 1972) of this Court alleging that the woollen felt manufactured by them was not woollen fabrics and that the Central Excise Authorities were not entitled to charge any excise duty on the same. The Division Bench of this Court presided over by the Chief Justice, accepted the writ petition vide judgment dated April 22, 1976 and held that woollen felts are not fabrics and not liable to additional excise duty.
4. That 'by a notice dated July 30, 1976, the petitioner firm was asked to show cause why the assessment order dated November 3, 1969 for the assessment year 1968-69 in respect of woollen felts sold and exempted by the assessing authority treating them to be woollen fatties, should net be reopened because the Rajasthan High Court, vide its order dated April 22, 1976, held in the writ petition S. Zoraster and Co. v. Union of India that woollen felts are not woollen fabrics. The next date fixed by the assessing authority for submitting the 'reply was August 20, 1976. The petitioner 'filed a reply to this notice (Ex. 2) on August, 1976 and contended that the case cannot be reopened as exemption was granted after due consideration and proper application of mind. Thereafter, the petitioner also moved the State Government by making representations. The assessing authority, after receiving the reply of the petitioner or August 19, 1976(Ex. 2), sat tight over the matter and though a period of one year has elapsed, it did not decide this application The petitioner, apprehending that the assessing authority was not prepared to drop the proceedings or withdraw the notice and was bent upon reopening the assessment indicated in the notice, has approached this Court.
5. The contention of the petitioner is that the assessing authority had no jurisdiction to issue the impugned notice as all the material facts were placed before the assessing authority and he, having exempted the turn over, could not reopen the assessment in exercise of his power under Section 12 of the Rajasthan Sales Tax Act (hereinafter to be referred as 'the Rajasthan Act') merely because he has come to hold a different opinion or because the High Court of Rajasthan has held that woollen felt is not woollen fabric. The learned Counsel maintains that a mere change of opinion by the authorities cannot clothe them with the power to reopen the assessment once made. In support of the above contention, the learned Counsel has placed reliance on National Clinic v. Assistant Commercial Taxes Officer, Sri Ganganagar 1966 RLW257; Sahachari Udyog Mandir, Falna, District Pali v. State of Rajasthan (1972) 6 ITR 202; and Bhikkilal Chhotey Lal v. State of Rajasthan 1967 Rajasthan Revenue Decisions-228. It was also urged that the assessing authority did not have the jurisdiction under Section 12 of the Rajasthan Act to issue notices because it had no reason to believe that the sale was under-assessed and such under-assessment has occurred by reason of either omission or failure on the pan of the assessee to make a return to clear by disclose the sale or omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment. As both these conditions are conditions precedent to be satisfied before the assessing authority can have jurisdiction to issue a notice for reassessment. In the absence of the same, notices issued are without jurisdiction The assessee had clearly indicated the entire turn over in the return filed by it, and the assessing authority, after taking into consideration all the material on record, granted exemption and held that the sale regarding the woollen felts was free from tax. The learned Counsel urged that Section 34 of the Income-tax Act has provided the pattern for the re assessment machinery in the sales tax statute as well. The finality of the assessment cannot be lightly disturbed. The legislature intended that the assessee may not be put to unnecessary harassment la interpreting Section 12 of the Rajasthan Act, due consideration must be given to the language employed therein. Section 12 of the Rajasthan Act postulates that there should be reason for holding that the business of a dealer has escaped assessment to tax. The existence of a reason, that is required to be there, should appear to the authority that the business has escaped assessment. The belief about the escapement of the business from tax must be that of an honest and such belief should be based upon reasonable grounds. This clearly implies that mere change of opinion will not be enough to initiate an action. Simply because the High Court or the Supreme Court held that woollen felt is not woollen fabric, the assessment cannot be reopened, because it is nothing but a change of opinion and mere change of opinion is not sufficient to initiate an action under Section 12 of the Rajasthan Act because in the same nature of things, that cannot be said to be a reasonable thing to do.
6. Now, the question, which needs determination, is whether, in view of the circumstances of the case, and particularly the manner in which, and keeping in view the decision of the Additional Commercial Taxes Officer, Rajasthan, Jaipur, after due consideration, the assessing authority in its order dated November 3, 1969, held that the asset see was liable to exemption on the turn over of woollen felts, the learned assessing authority has jurisdiction to issue notices under Section 12 of the Rajasthan Act and has jurisdiction to determine the dispute again.
7. Mr. D.S. Shishodia, appearing on behalf of the State, has urged that the decision in National Clinic v. Assistant Commercial Taxes Officer, Sri Ganganagar 1966 Rajasthan Law Weekly 257 (supra) turned up on the interpretation of Section 34 of the Income tax Act and the other cases re ported in Sahachari Udyog Mundir, Falna v. State of Rajasthan (1972) 6 TR 202 and Bhikalal Chhotey Lal v State of Rajasthan (supra) relied upon by the petitioner, are based on the decision of that case As the case National Clinic v. Assistant Commercial Taxes Officer, Sri Ganganagar 1966 RLW257 was held to be not laying down the good law in view of tht other Section C. decisions and a Division Bench decision of this Court in Akbarali Amanaiali v. Assistant Commercial Taxes Officer 1976 WLN 815, the cases relied upon by the petitioner, cannot be of much Avail to him. The question whether woollen felt is woollen fabric or not stands conclusively determined by the decision of their Lordships of the SC in Union of India and Ors. v. Gujarat Woollen Felt Mils : 1977(1)ELT24(SC) , The decision of this Court in Section Zoraster & Co v. State of Rajasthan was based on the decision of the Gujarat High Court in Union of India and Ors. v. Gujarat Woollen Felt Mills : 1977(1)ELT24(SC) (supra), which was upheld by the Supreme Court in the above noted decision and it was held that:
Non-woven felts, manufactured from woollen fabrics by machine pressing of raw wool waste, which were neither sheets nor fabrics and utilised for the purpose of Alteration in heavy industries, are not 'woollen fabrics' within the meaning of Entry 21 in Schedule to the Act, read as a whole.
Thus indeed, there remains no dispute that woollen felt manufactured by the petitioner does not fall in the list of exempted goods from sales-tax provided in the Central Sales-tax Act and the Rajasthan Sales Tax Act.
8. The scheme of Section 34 of the Income Tax Act which is analogous to Section 147 of the Income-tax Act, 1961, is entirely different. Under Section 34 of the Income-tax Act, 1922, the Income-tax Officer could have reason to believe that the income chargeable to tax has escaped assessment for the relevant year or has beer, under-assessed or assessed at too low a rate etc The words 'reason to believe' impose a condition to the exercise of the power to make re-assessment under Section 34 of the Income-tax Act, 1922- Unlike suction 34 of he Income tax Act, Section 12(1) of the Rajasthan Act uses the words if for any reason, the whole or any part of any business of the dealer has escaped assessment to tax or has been assessed at too low a rate in any year etc.' The words 'for any reason' appearing in Section 12(1) of the Rajasthan Act are wide enough and the powers of Commercial Faxes Officer under the section are not circumscribed by any conditions In Maharadhiraja Sri Kameshwarsingh v. State of Bihar : 37ITR388(SC) , The words of Section 26 of the Bihar Agricultural Income-Tax Act (7 of 1938), which are analogues to the words appearing in Section 12(1), of the Rajasthan Act, came up for interpretation. Section 26, of the, Bihar Agricultural Income tax Act, as quoted in Kameshwar Singh's case : 37ITR388(SC) , and Section 12(1) of the Rajasthan Act read as under:
If for any reason any agricultural income chargeable to agricultural income-tax has escaped assessment for any financial year...the Agricultural Income tax Officer...may proceed to assess...such income ....
12(1), Assessment of fax and levy of exemption fee or registration feet incorrectly assessed : If for any reason the whole or any part of the business of a dealer has escaped assessment to the tax, or if the registration fee or exemption fee has escaped levy or has been assessed at too low a rate in any year, the assessing authority, may serve on the dealer liable to pay the tax in respect of such business or such registration fee or exemption fee, a notice in the prescribed form and may proceed to assess or reassess the amount of the tax or levy the correct amount of registration fee or exemption fee from such dealer.
Provided that if a Deputy Commissioner (Administration) has reason to believe that the whole or any part of the business of a dealer has escaped assessment o tax or has been under assessed or has been assessed at too low a rate, he may at any time subject to the time limit specified in Sub-section (2), either direct the assessing authority to assess or reassess the amount of tax or himself proceed to assess or reassess the tax.
Explanation : Nothing in this section shall be deemed to prevent the assessing authority from making an assessment to the best of his judgment.
(2) No notice under Sub-section (1) shall be issued in respect of any business, registration fee or exemption fee for an year after the expiry of eight years from the end of the relevant assessment year:
Provided that nothing contained in this sub section shall apply to any assessment or reassessment made in consequence of, or to give effect to, any finding or direction contained in an order under Section 13, 14 or 15 or in an order of any competent court.
Explanation - Where the assessment proceedings relating to any dealer remain stayed under the order of any competent court, the period during which the proceedings remain so stayed shall be excluded in computing the period of limitation for assessment or reassessment provided under this sub-section.
Their Lordships of the Supreme Court, while interpreting the words 'any reason' appearing in that Act, observed that the use of words 'any reason' which are of wide import, dispenses with those conditions by which Section 34 of the Indian Income-Tax is circumscribed Placing reliance on the same case, a, Division Bench of this Court in Bhanwarlal Binjaram v. Assistant commercial Taxes Officer, Jodhpur 1976 WLN 459, presided over by the present Chief Justice, held that the words 'any reason' appearing in Section 12(1) of the Rajasthan Act are of wide import and the scheme of the Income-tax Act is entirely different. In State Bank of India v. Shri N. Sundra Maney A.I.R. 1977 SC 1111, the words 'any reason' appearing in Section 2(00) of the Industrial Disputes Act, 1947, came up for interpretation and their Lordships of the Supreme Court observed that 'For any reason whatsoever very wide and almost admitting of no exception.'
9. Even if we apply the principles laid down in National Clinic v. Assistant Commercial Taxes Officer, Sri Ganganagar 1966 RLW257 (supra), then also, on the facts of this case, it cannot be said that it is a case of mere change of opinion. In the same case, it was observed that ' what is reasonable and what is not reasonable, will depend upon the facts and circumstances of each case, and it will not always be possible to put all the circumstances in a straight jacket'. In that cases reliance was placed on Maharaj Kumar Kamal Singh v. Commissioner of Income-tax' Bihar and Orissa : 35ITR1(SC) , wherein it was observed by their Lordships that the term 'information' will also comprehend knowledge about a state of the law or a decision on a point of law. In the same case, it was held:
The word 'information' in Section 34(1)(b) includes information as to the true and correct state of the law and so would cover information as to relevant judicial decisions.
10. In view of the pronouncement made by the D.B. of this Court in M/s Section Zoraster and Company and in view of the a thoritative pronouncement by their Lordships of the Supreme Court in Union of India and Ors. v. Gujarat Woollen Felt Mills : 1977(1)ELT24(SC) , it cannot now be said that the woollen felts manufactured by the petitioner is woollen fabric. The assessing authority has come to know about this true position of fact and law after the original assessment & in consequence of such information, it can be very well said that he has reason to believe that the turn over has escaped assessment of sales tax. The information can be of fact or of law. The fact that the Income-tax-Officer, with due diligence, could have obtained the information or could have come to a right conclusion during the previous assessment on a proper investigation of the material, would not go to hold that he does not have reasons to believe that the turnover has escaped assessment In R.L. Malhotra v. Kastur Bhai Lal Bhai : 1975CriLJ1545 , the question arose for consideration whether the information which the Income-tax officer received from the audit department be construed as an information within the meaning if Section 147(b) of the Income tax Act, 1961. Their Lordships of the Supreme Court, after considering the ratio decidendi of a catena of cases reported in Maharaj Kumar Kamalsingh v. Commissioner of Income-tax, Bihar and Orissa : 35ITR1(SC) & Commissioner of Income-tax, Delhi v. H.H. Smt. Chand Kanwarji 1972 TLR 100; Commissioner of Income-tax v. Kalukutty 1972 TLR72 and Assistant Controller of Estate Duly, Hyderabad v. Osman Ali Khan Bahadur : 72ITR376(SC) observed as under;
The Gujarat High Court was correct in its view that it would be information of law if it is stated by a person, body or authority competent and authorised to pronounce upon the law and is invested with authority to do so. In applying this principle the Court erred in holding that audit department is not an authority competent and authorised to declare the correct slate of law or to pronounce upon it. The audit department is the proper machinery to scrutinise the assessments of the Income tax Officer and point out the errors, if any, in law.
In this case, the decision of the Gujarat High Court dated June 23, 1970, allowing the application filed by the assessee and issuing of writ of mandamus, quashing and setting aside the notice issued by the Income-tax Officer under Section 148 of the Income-tax Act, was set aside, and it was observed that the Income-tax Officer, in the circumstances of that case, was entitled to reopen the assessment under Section 147(b) of the Income-tax Act.
11. In Assistant Controller of Estate Duty Hyderabed v. Mir Osman Ali khan Bahadur : 72ITR376(SC) (supra) the Supreme Court, while considering the question whether the opinion of the Central Board of Revenue would amount to information' within sect on 59(b) of the Estate Duty Act, observed that the opinion expressed by the Central Board of Revenue as to valuation was 'dearly 'information' Then, on the parity of reasoning, it can be safely said that the decision of this Court and that of Hon'ble the Supreme Court holding that woollen felts is not woollen fabric is sufficient reason within the meaning of Section 12(1) of the Rajasthan Act.
12. The grounds disclosed in the notice issued to the petitioner by the assessing authority cannot be said to be extraneous They are relevant & have nexus with the formation of reason regarding escaped assessment and not granting of exemption and the assessing authority is clothed with the jurisdiction to take action under Section 12(1) of the Rajasthan Act. Whether the grounds are adequate or not, is not a matter which can be gone into by this Court, for the sufficiency of the grounds, which induced the assessing authority to act, is not a justifiable issue, there is nothing to hold that the belief of the assessing authority is not formed in good faith and is a mere pretence for initiating action under Section 12 of the Act. The assessing authority, in the circumstances, in our opinion, acted within the ambit of its power in initiating proceedings under Section 12 of the Rajasthan Act.
13. This writ petition is also liable to be dismissed on the ground of alternative remedy. The Rajasthan Sales-tax Act provided for a complete machinery and the recourse must be bad to that machinery for redress and not by a petition under Article 226 of the Constitution. It is not the object of Article 226 of the Constitution to convert this Court into an original or assessing authority. Whenever an assessee chooses to attack an assessment for a notice for reassessment, there must be something more in a case to warrant the entertainment of a petition under Article 226, something going to the root of the jurisdiction of the Sales-tax Officer, something to show that it would be a case of palpable injustice to the assessee, to force him to adopt a remedy provided by the Act. Reference may be made to the Saks Tex Officer, Jodhpur and Anr. v. Shiv Ratan G. Mohotta : 3SCR71 . After the amendment to Article 226(1), the writ jurisdiction has been restricted by the three sub clauses under Article 226(1). Not only the scope of the writ jurisdiction is restricted I y the specific purpose which is substituted in the place of other purposes in Clauses (b) and (c), but further fetter is added under Article 226(3) that no such petition for redress of injury referred to in Sub-clause (b) and (c) of Clause (1) shall be entertained if any ether remedy for such redress is provided for by or under any other law for the time being in force.
14. Moreover, no question of legislative competence or of excessive delegation has been raised in this case. There is nothing to hold that the notice issued by the assessing authority are totally dehors the Act and ex facie without jurisdiction or complete nullities which could be ignored The case of Ahemdabad Cotton Mfg. Co. Ltd. etc. v. Union of India and Ors. A.I.R. 1977 Guj 113 is of no avail to the petitioner because the scheme of the Central Excise and Salt Act, 1944 is altogether different than that of the Rajasthan Act. Section 35 of the Central Excise and Salt Act, 1944, does not provide for any appeal against the type of notices issued in that case, whereas the Rajasthan Act is a complete code in itself which provides remedies by way of appeal, revision and rectification as well as reference petitions.
15. In Jai Hanuman Trading Co. Put. Ltd. v. The Commissioner of Income-tax Patiala and Anr. the validity of the notices issued under Section 147(b) of the Income tax Act, 1661, was challenged before the Full Bench in writ petitioner. The learned Counsel appearing on behalf, of the Revenue raised a preliminary objection that the amended provision of Article 226 of the Constitution, the court was precluded from going into the questions of non-existence of reasons for belief before the assessing authority itself Their Lordships in that case held as under:
While the High Court previously had the freedom to issue a high prerogative writ notwithstanding the existence of an alternative remedy, it is now precluded from going so because Article 226(3) provides 'no petition for redress of any injury referred to in Sub-clause (b) or Sub-clause Clause (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force'.
With these observations, their Lordships dismissed the writ petition pending before them.
16 in Delhi Cloth and General Mills Co Ltd. and Ors. v. R.R. Gupta, Commercial Tax Officer, Jaipur and Ors. AIR 1967 SC 2686, the petitioner asserted that from year 1966 to 1969 the respondent Commercial Taxes Officer was not subjecting the goods of Rayon Tyre Cord Fabric to sales-tax and accepted the case of the petitioner that they were exempt from taxation. Thereafter, some questions were put in the Rajasthan Stale Legislative Assembly on or about April 30, 1972 asking for the reasons why those goods were exempt from sales-tax. The Commissioner, Commercial Taxes, issued a letter to the Commercial Taxes Officer to levy such tax on the Rayon Tyre Cord Fabrics manufactured by the petitioners. Upon this, notices under the provision of Section 12(1) of the Rajasthan Act were issued for the years 1965 to 1969 with a view to reopening the assessments on the ground that the sales those goods had wrongly escaped assessment, but those were dropped due to some preliminary objections. Fresh notices were then issued and proceedings for subsequent assessment years were taken by orders passed on various dates. The Commercial Taxes Officer rejected the petitioners objection to sales-tax on 'Rayon T>re Cord Fabric'. The petitioner to that case went up before the Rajasthan High Court and also approached the Hon'ble the Supreme Court directly against the order of provisional assessment dated November 1, 1972 The High Court refused to interfere with the decision of the taxing authorities at that stage. Their Lordships of the Supreme Court, while rejecting the writ petition, observed as under:'
We also think that for the same reason we could not interfere under Article 32 with the decision of the Commercial Tax Officer Indeed, no fundamental right is shown to be affected by a mere determination of the question indicated above. There is no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wrongly.
On the parity of reasoning, it can be safely said that no fundamental right of the petitioner is involved in this case and this writ petition is also liable to be dismissed on the ground of not availing the alternative remedy available to the petitioner under the statute.
17. The writ petition is devoid of merits and is dismissed in limine.