Rajasthan High Court - Jaipur
S. Zoraster And Company (Supplies) Pvt. ... vs The State Of Rajasthan And Ors. on 20 January, 1995
Equivalent citations: 1995(2)WLN428
JUDGMENT Anshuman Singh, J.
1. These twelve special appeals are directed against the judgment dated 31st October, 1986 passed by the learned Single Judge of this Court dismissing the writ petitions filed by the appellant-petitioners. Since all the special appeals are directed against the common order, in which similar controversy is involved, they are being disposed of by common judgment.
2. The fact giving rise to the present special appeals have chequered history, which are as under: The appellant-petitioner is a Private Limited Company incorporated under the Indian Companies Act, 1956 and has its factory situated at Purana Ghat, Jaipur. The appellant Company manufactures woolen industrial felt. The appellant company is registered under the Rajasthan Sales Tax Act, 1954 (hereinafter to be referred to as "the Act of 1954") and also under Central Sales Tax Act, 1956 (hereinafter to be referred to as "the Act of 1956"). It is alleged that the appellant paid sales tax which was due against it both under the State Sales Tax Act as well as under the Central Sales Tax Act. The assessment order for the year 1965-66 in respect of the Rajasthan Sales Tax Act was passed on 31.7.1968. It appears that the Company claimed deduction of Rs. 2198.40 on the ground that the woolen felt sold by the Company had already been subjected to additional excise duty and the same was not liable to tax under the Rajasthan Sales Tax Act with effect from August 25, 1965. The deduction claimed by the appellant was allowed by the assessing authority. It has been averred that the appellant was paying sales tax chargeable both under the Rajasthan and the Central Sales Tax Act before 1965-66. The Central Excise authorities charged excise duty from 1965-66 onwards on the ground that the woollen fabric produced by the appellant Company was declared item under Section 14 of the C.S.T. Act and as such was liable to pay additional excise duty under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The appellant petitioner contested the claim of the Central Excise authorities, but failed. Thereafter the appellant moved an application under Section 12A of the R.S.T. Act for seeking opinion as to whether the woollen felt as produced by the Company was covered by the term "woollen fabric". The Additional Commissioner, Commercial Taxes Rajasthan, Jaipur determined the aforesaid question in case No F. 23. (56)/M/ST/166 vide judgment dated November 22, 1966. The Additional Commissioner by the aforesaid judgment held that "woollen fabric" are subjected to levy of additional excise under the Additional Duets of Excise (Goods of Special Importance) Act, 1957. It was further held that "woollen fect" manufactured and sold by the petitioner company was covered by Entry 18 of Schedule appended to the Rajasthan Sales Tax Act, 1954. According to this determination, the petitioner-Company was being treated as exempt from payment of sales tax both under the R.S.T. Act and under the C.S.T. Act. It is alleged that thereafter the appellant-company continued to enjoy exemption from payment of tax under C.S.T. Act and R.S.T. Act because of the order passed by the Additional Commission, Commercial Taxes Rajasthan, Jaipur. It has been further stated that the appellant some-times in June, 1971 came to know that Gujarat High Court has given judgment on 17th June, 1971 on a petition, viz., Special Civil Application No. 112/67 Gujarat Woollen Felt Mills v. Union of India and Ors. holding that the "woollen felt" is a similar product as that of the petitioner company and is not a woollen fabric". There upon, the appellant again requested the excise authorities that appellant should not be subjected to payment of excise duty on its product. Since the Excise authorities did not accede to the request of the appellant, the appellant filed a D.B. Civil Writ Petition No. 1163/72 on 25th October, 1972 in this Court. In the aforesaid writ petition, the appellant claimed that the excise authorities may be restrained from charging any duly on the ground that the "woollen felt" manufactured by the appellant is not a "woollen fabric. The appellant-petitioners are alleged to have raised a claim of refund amounting to Rs. 6,69,948.19 in the aforesaid petition, which was collected from the appellant-petitioner from 25.8.1965 to 30.9.1972. The aforesaid petition was contested by the Central Excise authorities. The contention raised by the respondents in the aforesaid D.B. Writ Petition was that "woollen felt" as produced by the petitioner was a "woollen fabric". It was also brought to the notice of this Court that Gujarat High Court's judgment was under challenge before the Supreme Court. However, this Court by judgment dated April 22, 1976 upheld the contention of the petitioner that the "woollen felt" was not woollen fabric and the Central Excise Authorities were not entitled to charge any excise duty on the same. It has been averred in para 13 of the writ petition that the Union of India moved an application in this Court for leave to appeal before the Supreme Court, which was allowed by this Court on 17.10.1976 and the appeal filed by the Central Excise authorities is still pending before the Apex Court.
3. It is alleged that the Commercial Taxes Officer Special Circle, Jaipur issued a notice dated 5.5.1976 under Section 12 of the R.S.T. Act read with Section 9(2) of the C.S.T. Act to the appellant-petitioner. In the impugned notice, it was asserted that the respondent No. 3 was of the opinion that the appellant has escaped assessment on the sales of woollen felts in view of the judgment given by this Court on April 22, 1976, in which it was held that the woollen felts are not "woollen fabrics." It was further asserted by the respondent No. 3 that since the said judgment was not in existence while completing the said assessment, hence woollen felts were not subject to tax and since in the judgment it was held that the woollen felts were not liable to additional excise duty and because of this additional fact, proceedings were stalled for re-assessment. The appellant challenged the aforesaid notice by filing D.B. Civil Writ Petition in this Court, which came up for admission on 13.12.1976. This Court issued show cause notices to some of the respondents asking them to show cause as to why the petition be not admitted and in the mean-time, the respondents were restrained from finalising the assessment proceedings against the appellant in pursuance of the notice issued under Section 12 of the Act. A certified copy of the order passed by this Court was served on the Commissioner, Commercial Taxes, Rajasthan, Jaipur on 15th December, 1976. It has been stated that the appellants were required to appear before the respondents No. 3 on 16th December, 1976. When the appellants' authorised representative appeared before him on 16th December, 1976, he was informed that the non-petitioner No. 2 has already issued direction on 7th December, 1976 that for the assessment years 1965-66, 1966-67, 1967-68 and 1970-71 the levy of sales tax on woollen felt has escaped assessment and as such he should reassess the same in pursuance of the aforesaid order and he has already withdrawn the notice dated 5.5.1976 issued under Section 12 of the R.S.T. Act read with Section 9(2) of the C.S.T. Act and the appellant was informed that a fresh notice will be issued in pursuance of the order passed by the non-petitioner No. 2. The appellants' authorised representative was further informed that in view of the withdrawal of the notice dated 5.5.1976, there was no question of reassessment in pursuance of the aforesaid notice and the stay order issued by this Court was kept on file by the non-petitioner No. 3. In view of withdrawal of notice by the non-petitioner No. 2. on 16.12.1976, the petition was dismissed by this Court on 21.12.1976 holding that the same has become infructuous because of the notice issued earlier under Section 12 of the Act.
4. The non-petitioner No. 3 again served the Company with a notice dated 31st December, 1976 under Section 12 of the R.S.T. Act in pursuance of the directions of the Deputy Commissioner (Administration) dated 7/30.12.1976 given under Proviso to Sub-section (1) of Section 12 of the R.S.T. Act. The direction given by the Deputy Commissioner (Administration) Commercial Taxes. Jaipur to the Commercial Taxes Officer Special Circle II, Jaipur Was to the effect that in view of the Judgment dated 22.4.1976 of this Court in D.B. Civil Writ Petition No. 1163/72 M/s. S. Zoraster and Company (Supplies) Pvt. Ltd. v. Union of India and Ors., there is reason to believe that M/s. S. Zoraster and Company (Supplies) Pvt Ltd., v. Purana Ghat, Jaipur a registered dealer under both the Acts, Rajasthan Sales tax Act and the Central Sales-tax Act, has not been assessed on the inter-stated sales of woollen felts during the years 1.4.1970 to 31.3.1991, 1.4.1967 to 31.3.1968. 1.4.1966 to 31.3.1967 and 1.4.65 to 31.3.1966 and thus the business of the woollen felt of the dealer has escaped assessment to tax. The appellant Company being aggrieved against the order of the non-petitioner No. 2, dated 7/30 12.1976 directing the non-petitioner No. 3 to reassess the appellant-company, preferred a revision petition before the Board of Revenue, Rajasthan, Ajmer, challenging the aforesaid order inter-alia on the ground that the notice under Section 12 of the Act having already been issued by the assessing authority on 5.5. 1976 the Deputy Commissioner had no jurisdiction to direct the assessing authority to proceed under Section 12 of the Act and in view of the determination of the Additional Commissioner, Commercial Taxes Rajasthan, Jaipur under Section 12-A of the R.S.T. Act the woollen felt of the appellant company was exempted from the sales tax and in face of the said order, the non-petitioner No. 2. has no jurisdiction to issue the order dated 7/30.12.1976. The questions of limitation and Jurisdiction were also pleaded. The appellants are also alleged to have moved stay petition before the Board of Revenue and the said petition was fixed for hearing on March 11, 1977. It has been averred that while hearing arguments on the said application, the Board of Revenue dismissed the revision petition without deciding the main controversy involved in the revision petition. The Board of Revenue took the view that only one levy has to be effected in respect of the transaction either by way of additional excise duty or sales-tax under the Central or State Act and it would not harm the fiscal interest of the State if reassessment proceedings are directed to be stayed till the decision of the Supreme Court and directed the assessing authority not to finalise the reassessment in compliance of the order of the Deputy Commissioner (Administration). The assessee was also restrained from taking any recourse for claiming the refund of the additional excise duty paid by it till the reassessment proceedings under the Acts, if and when it becomes necessary, were finalised. It appears that since the Board of Revenue did not decide the main point raised in the revision petition, the assessee/appellant-company moved an application for rectification under Section 17 of the R.S.T. Act, which was rejected on 4th August, 1977. The appellant petition also moved transfer application before the Additional Commissioner under Section 52 of the R.S.T. Act for transfer of the case from the court of non-petitioner No. 2 to some other court and on the said application the case was transferred from non-petitioner No. 2 to non-petitioner No. 4 vide order dated 23.7.1977. After transfer of the case from non-petitioner No. 2 to non-petitioner No. 4, the appellant was served with a notice to appear before him on 24.9.1977. It appears that before any reassessment proceedings were done by the non-petitioner No. 4 in pursuance of the notice issued under Section 12 of the R.S.T. Act, the appellant petitioner approached this Court by means of writ petition under Article 226 of the Constitution of India, in which following reliefs were claimed:
(i) that this Hon'ble Court be pleased to declare that the provisions of Proviso to Sub-section (1) of Section 12 of the Rajasthan Sales Tax Act and/or to the extent necessary, the provisions of Sub-section (1) of Section 12 of the Act are unconstitutional, null and void;
(ii) by a suitable writ, order or direction the impugned order of the Deputy Commissioner Commercial Taxes dated 7/30. 12.1976 and the consequential notices issued by non-petitioner No. 3 dated 31st December, 1976 under Section 12 of the Act, the order of the Board of Revenue, Annexures 4 and 5, order of the Board dismissing special appeal dated 9.9.1977 and notice Annexure 6 dated 12.9.1977 be quashed.
(iii) by a suitable writ, order or direction the non-petitioner No. 4 be restrained from taking any further proceedings in pursuance to the Notice Annexures 3 and 6.
5. Counter affidavit was filed on behalf of the respondents and the contentions raised by the appellant petitioners were denied and hotly contested. On of the most relevant and legal pleas, which was raised by the respondents in their counter affidavit was that the appellant petitioner had an alternative remedy and as such this Court should not invoke its extra ordinary writ jurisdiction. In this connection, we would refer to the contents of para 27 of the counter affidavit, which runs as under:
That para 27 is not admitted. The petitioner has an alternate remedy of contesting its liability to tax before the tax authorities and further remedy by way of appeal, revision etc. under the Sales Tax Laws.
6. Learned Single Judge of this Court dismissed the writ petitions of the appellant petitioner mainly on the ground that the appellant-petitioner had an alternate remedy and declined to entertain the petitions under Article 226 of the Constitution of India challenging the notices issued under Section 12(1) of the R.S.T. Act for reassessment.
7. We have heard Shri S.M. Mehta, Sr. Advocate for the appellant petitioners, Mr. A.K. Bhandari for respondent No. 1 and Mr. K.K. Sharma for respondents No. 2 to 4.
8. The First contention raised by Mr. Mehta, learned Counsel for the appellant-petitioners is that on the one hand the learned Single Judge refused to exercise extra ordinary jurisdiction under Article 226 of the Constitution of India on the ground that the petitioners-appellants had an alternate remedy of contesting the notice issued under Section 12(1) of the Act before the Sales Tax authorities and on the contrary, he also recorded categorical finding that the objection regarding limitation was untenable. The submission made by Mr. Mehta appears to be well founded and has sufficient force inasmuch as the learned Single Judge has discussed the plea of limitation raised by the petitioners regarding the impugned notice in detail and has also interpreted Section 12(1) of the Rajasthan Sales Tax Act and its proviso and after discussing the same, has arrived to a conclusion that the plea of limitation raised by the petitioners was untenable.
9. It has been further contended on behalf of the appellant-petitioners that in view of the findings recorded by the learned Single Judge on the question of limitation, nothing remains to be decided by the Sales Tax authorities and as such the remedy available to the petitioners now under the Act before the authorities will be a mere formality and the authorities would be bound by the order of the learned Single Judge on the question of limitation. The above argument cannot be brushed aside in view of the fact that the learned Single Judge has recorded a finding that the contention raised by the petitioners on the questions of limitation is not tenable. In view of the said fact, the authorities under the Sales-tax Act cannot take a contrary view on the question of limitation and the finding recorded by the learned Single Judge would be binding on the authorities. For determining the fact whether the view taken by the learned Single Judge on the question of limitation is within the para-meters of Section 12(1) of the Act and its Proviso or is otherwise, erroneous, we have to refer to the provisions of Section 12 of the Rajasthan Sales Tax Act 1954, which runs as under:
12. Assessment of tax and levy of exemption fee, registration fee incorrectly assessed,--(1) 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 from 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 the Commissioner or Deputy Commissioner (Administration, Anti Eviation) or a Deputy Commissioner (Administration) has reason to believe that the whole or any part of the business of a dealer has escaped assessment to 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.
10. Sub-section (2) of Section 12 of the Act is also very relevant, which runs as under:
(2) No notice under Sub-section (1) shall be issued in respect of any business, registration fee or exemption fee for any year after the expiry of three 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 an order of any competent court.
Explanation--Where the assessment proceedings relating to any dealer remain stayed under the orders of the competent court, the period during which the proceeding remain so stayed shall be excluded in computing the period of limitation for assessment or re-assessment provided under this Section.
11. From a perusal of the language used in Sub-clause (2) of Section 12 of the Act, it is abundantly clear that normally no notice under Sub-section (1) of Section 12(1) shall be issued after the expiry of three years except where the assessment or reassessment is started as a consequence of any finding or direction contained in an order under Section 13, 14 or 15 or an order of any competent court. In the instant case, there is no dispute on the point that the impugned notice has been issued to the assessee for making assessment in pursuance of any order or direction passed by any court under Section 13, 14 or 15. Proviso added to Section 12(2) of the Act speaks of two contingencies; the first where reassessment is being made in pursuance of the order, finding or direction contained in an order passed under Section 13, 14 or 15 of the Act and the other where reassessment is being done in order to give effect to an order of any competent court. Learned Single Judge was of the opinion that since reassessment has been started in order to give effect to a judgment rendered by the court, the period of limitation would not be attracted. The crux of the matter is as to what is the meaning of the words "an order of any competent Court" occurring in Proviso to Section 12(2) of the Act. There is no dispute between the parties that there is no order of any competent court either under the Rajasthan Sales Tax Act or under the Central Sales Tax Act for reassessment of the turn over of the assessee. The notice for reassessment has admittedly been issued in order to give effect to the law laid down by the Apex Court and this Court while deciding a case under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The question which arises for determination is, whether the power under Section 12(1) of the Act can be exercised by the authorities in order to give effect to an order passed by any competent court relating to the proceedings under the Sales Tax Act or relating to any other Act?
12. Learned Counsel for the petitioner-appellants has vehemently urged that the interpretation put forth by the learned Single Judge to the words "an order of any competent court" occurring in Proviso to Section 12(2) if the Act is wholly erroneous. He contends that reading of the Proviso to Section 12(2) of the Act clearly indicates that reassessment proceedings can be initiated only in order to give effect to an order passed by an competent court while deciding a case under the State Sales Tax Act or under the Central Sales Tax Act and not otherwise.
13. We have given out thoughtful consideration to the arguments advanced on behalf of the petitioners-appellants and also carefully perused the language used in Proviso to Sub-section (2) of Section 12 of the Act and the only conclusion to which we arrive is that the intention of the Legislature while using the words "an order of any competent court"? wa confined to any order passed by any competent court under the Sales Tax Act and not otherwise. We, therefore, have no hesitation in holing that the interpretation put forth by the learned Single Judge is wholl erroneous and in our opinion since the proceedings for reassessment have been initiated in order to give effect to an order passed by this Court under the Additional Duties of Excise (Goods of Special Importance) Act, 1957, the Proviso would not be attracted and the period of limitation prescribed under Section 12(2) of the Act will apply to the instant case and not the Proviso.
14. The other limb of arguments advanced on behalf of the petitioners-appellants is that since the notices issued to the petitioners-appellants were barred by time, the learned Single Judge should not have thrown the petitions on the ground of alternative remedy. He submitted that inspite of the fact that the petitioners-appellants have an alternative remedy under the Act, this Court has always interfered in cases where the impugned order in without jurisdiction where the impugned order has been passed in violation of the principles of natural justice or where the notices issued under the fiscal statute are barred by limitation. It is well settled that where the petitioner has an alternate remedy of agitating the matter before the authorities, specially under the fiscal statute, normally this Court should not interfere under Article 226 of the Constitution of India, but some-times this Court may interfere under Article 226 of the Constitution of India inspite of alternate remedy in appropriate cases depending on the facts of each case. Learned Counsel for the appellants submits that in case the contention raised by him on the question of limitation is accepted, then this Court instead of relegating the petitioners to avail the alternate remedy under the Act should exercise its extra ordinary jurisdiction in favour of the petitioner-appellants. In order to tests as to whether the impugned notices issued to the appellants are barred by limitation or not, we have to revert back to the assessment years in question. The assessment years in question involved are 1965-66, 1966-67 arid 1967-68 under the Rajasthan Sales Tax, Act, 1965-66, 1966-67 and 1967-68 under the Central Sales Tax Act. The assessee-appellant has been issued notices for reassessment under the State as well as under the Central Sales Tax Act for the aforesaid assessment years. The other assessment years for ! which the assessee has been issued notice under Section 12(1) under the State Act as well as under the Central Sales Tax Act, relate to the assessment years 1968-69, 1969-70 an 1970-71. Counsel contained that so far notices issued to the assessee-appellants relating to the assessment years 1965-66, 1966-67 and 1967-68 both under the State as well as Central Sales Tax Act are barred by limitation, inasmuch as they have been issued after expiry of 8 years, whereas the notices relating to the assessment years 1968-69, 1969-70 and 1970-71 are within time. The assessment year 1965-66 ends on 31.3.1966, assessment year 1966-67 ends on 31.3.1967, and assessment year 1967-68 ends on 31.3.1968. The notices under Section 12(1) of the Act were admittedly issued to the assessee-appellants on 31.12.1976. From the above, it can be safely said that there is no room for doubt that the notices relating to the assessment years 1965-66, 1966-67 and 1967-68 issued both under the State as well as Central Sales Tax Act have been issued after expiry of 8 years. The period of limitation prescribed under Section 12(2) of the Act was 8 years when the impugned notices were issued, which has been reduced to 5 years by Act No. 8 of 1991 w.e.f. 1.4.1991 In view of the fact that the impugned notices relating to the assessment years 1965-66, 1966-67 and 1967-68 are admittedly barred by limitation, in our opinion it would not be expedient and proper to relegate the petitioners-appellants to avail the alternate remedy under the Act and the case in hand appears to be a fit case, in which extra ordinary jurisdiction should be invoked. Consequently, for the reasons stated above, we hold that the impugned notices issued under Section 12(1) of the State as well as Central Sales Tax Act relating to the assessment years 1965-66, 1966-67 and 1967-68 are barred by limitation and deserve to be quashed and as far the notices relating to the assessment years 1968-69, 1969-70 and 1970-71 are concerned, they are within time.
15. Learned Counsel for the appellants also contended that the learned Single Judge has in fact decided the whole case on merits as he has also recorded the finding that since the Supreme Court has held that woollen felt is not the woollen fabric the exemption to the assessee was wrongly allowed. In view of the said finding, he contends that nothing remains to be decided by the tax authorities as the matter has been finally adjudicated upon by this Court itself.
16. We have carefully perused the order passed by the learned Single Judge and the said contention raised on behalf of the assessee is well founded, inasmuch as the learned Single Judge has held as under:
The judgment of this Hon'ble Court has been affirmed by the Supreme Court. The Supreme Court also held that woollen felt is not woollen fabric. Since the petitioner got the exemption from payment of sales Tax on the ground that woollen felt was woollen fabric and since the Supreme Court thereafter held that woollen felt was not a woollen fabric as defined in the Additional Duties of Excise (Goods of Special Importance) Act, 1957, it is obvious that the exemption had been wrongly allowed.
17. From the above, it appears that in fact the learned Single Judge decided the whole controversy and the entire case on merit. After considering the entire judgment passed by the learned Single Judge, with great respect we are of the view that the approach adopted by the learned Single Judge in deciding the cases was not correct, inasmuch as in case he was of the view that the facts of the case did not warrant exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India, the petitions should have been dismissed on that ground alone, but instead of doing so, the learned Single Judge also proceeded to decide the entire controversy and gave finding, which if the petitioner was relegated to avail the alternate remedy before the authorities under the Act, would be mere illusary and a formality. We have already held earlier that the notices relating to the assessment years 1968-69, 1969-70, and 1970-71 are clearly barred by limitation and deserve to be quashed on this ground alone, and as such in our opinion, the petitioner-appellant should not be relegated to avail alternate remedy under the statute before the authorities and the order passed by the learned Single Judge to the extent that objection regarding limitation is untenable, deserves to be quashed in so far it relates to the assessment years 1965-66, 1966-67 and 1967-68. As regards the findings recorded by the learned Single Judge on the merits of the case as to whether "woollen felt" was "woollen fabric" or not, we do not want to express any opinion on the merits and leave it to the authorities under the Act to decide the question after giving due opportunity to the assessee as well as the department. However, the authorities under the Act will decide the question independently ignoring the findings recorded by the learned Single Judge on the merit of the case and we would like to make it clear that the findings recorded by the learned Single Judge on the merit of the case would not be, in any way, binding on the authorities under the Act in deciding the case on merit.
18. In the result, the special appeals in so far they relate to the assessment years 1965-66, 1966-67 and 1967-68 succeed and are allowed and the order passed by the learned Single Judge relating to these assessment years is set-aside and the notices issued to the appellant-assessee under Section 12(1) of the Act are quashed. However, the appeals of the appellant-assessee in so far they relates to the assessment years 1968-69, 1969-70 and 1970-71 fail and are accordingly dismissed on the ground of availability of alternate remedy and the order of the learned Single Judge to that extent is maintained.
19. In view of divided success, the parties will bear their own costs.