Delhi High Court
Gee Gee Exports Pvt. Ltd. vs Commissioner Of Sales Tax And Ors. on 8 November, 1996
Equivalent citations: 1997IAD(DELHI)163, 65(1997)DLT888, 1997RLR19
Author: Y.K. Sabharwal
Bench: Y.K. Sabharwal, D.K. Jain
JUDGMENT Y.K. Sabharwal, J.
(1) Ruel D.B. The short question involved in this petition is about the legality of the impugned order dated 4th January, 1996 made by Sales Tax Officer rejecting the application of the petitioner for issue of two ST-1 forms for the year 1992-1995, on the ground that the petitioner/dealer has violated the provisions of Rule 8(4)(c)(ii) of Delhi Sales Tax Rules, 1975 (for short 'the Rules') as the dealer has defaulted in making the payment of the amount of tax assessed for Rs. 20,317.00 under the Local Act for the assessment year 1992-1993. Briefly the undisputed facts are these.
(2) On 19th July, 1995,assessment order for the year l992-93 was passed levying tax on the sale of old office car and obsolete tools which according to the dealer was not liable to tax under the provisions of Delhi Sales Tax Act, 1975 as the petitioner claimed that it was not carrying on the business in the sale of said goods. Feeling aggrieved with the order of assessment the petitioner has filed a revision petition before the Assistant Commissioner challenging the levy and disputing the demand. Alongwith the revision petition an application for stay of demand was also filed. The revision petition and stay application are pending. On 22nd December, 1995 the petitioner filed an application for issue of ST-I forms. On 26th December, 1995 the Sales Tax Officer issued to the petitioner a deficiency memo staling that there are dues of Rs. 20,316.00 against the dealer. That was replied by the petitioner on 27th December, 1995 (Annexure-B). In that reply the petitioner has given the particulars of the filing of the revision petition and application for stay. Thereafter, the impugned order dated 4th January, 1996 was made.
(3) We may notice the factual errors in the impugned order. The petitioner having pointed out facts in response to deficiency notice by its letter dated 27th December, 1995 (Annexure-B) about the filing of the revision petition, there was no justification for noticing in the impugned order that no proof has been filed that dues are in dispute. The petitioner had specifically stated in reply to deficiency memo that feeling aggrieved by the assessment, revision petition was filed before the Deputy Commissioner of Sales Tax on 26th December, 1995 vide Receipt No. 491602. The order itself shows that the Sales Tax Officer was aware and conscious of the fact that the revision petition has been filed. The impugned order states that "merely filing an application for stay does not mean that there are no dues or that recovery of demand outstanding against the dealer cannot be recovered". In this case we are not concerned with the right of the department to recover the assessed amount from the dealer but are concerned about the validity of the action denying the issue of ST-I forms in light of Rule 8(4) of the Rules. For facility of reference, we reproduce herein under Rule 8(4). RULE-8.Authority from whom the declaration form may be obtained, and use, custody and maintenance of records of such forms and matters incidental thereto. (1) .......... (2) .......... (3) .......... (4)(a) (if, for reasons to be recorded in writing), the appropriate Assessing Authority is satisfied that the declaration forms have not been used bonafide by the applicant or that he does not require such forms bona fide, the appropriate Assessing Authority may reject the application or it may issue such lesser number of forms as it may consider necessary. (b) If the application, for declaration forms has, at the time of making the application, failed to comply with an order demanding security from him under Sub-section (1) of Section 18, the appropriate Assessing Authority shall reject the application. (e) If the applicant for declaration forms has, at the time of making the application,- (i) defaulted in furnishing any return or returns in accordance with the provisions of the Act or these Rules, or in payment of tax due according to such return or returns; or (ii) defaulted in making the payment of the amount of tax assessed or the penalty imposed by an appropriate Assessing Authority, which the applicant admits to be due from him and which is not in dispute; or (iii) been found by an appropriate Assessing Authority having some adverse material against him, suggesting any concealment of sale or purchase or of furnishing inaccurate particulars in the returns; the appropriate Assessing Authority shall, after affording the applicant an opportunity of being heard, withhold, for reasons to be recorded in writing, the issue of declaration forms to him and the appropriate Assessing Authority shall make a report to the Commissioner about such withholding within a period of three days from the date of its order : Provided that the appropriate Assessing Authority may, instead of withholding declaration forms; issue to the applicant, with the previous approval of the Assistant Commissioner appointed under Sub-section (2) of Section 9 of the Act, such forms in such numbers and subject to such conditions and restrictions as it may consider reasonable : Provided further that notwithstanding the provisions of any other rule, the issue of declaration forms to an applicant to whom a certificate of registration under the Act has been granted for the first time, shall be withheld by the appropriate Assessing Authority, until such time as all the returns for the return period commencing from the date of validity of this certificate of registration are furnished and tax due according to such return is paid by him. (d) Where the appropriate Assessing Authority does not proceed under Clause (a). Clause (b) or Clause (e), it shall issue the requisite number of declaration forms to the applicant.
(4) A plain reading of Rule 8(4)(c)(ii), which has been taken as a ground 'for refusal to issue the forms, shows that the issue of declaration forms can be denied in case the dealer defaults in making payment of the amount which the dealer admits to be due and which is not in dispute. The rule lays emphasis on the state of the action of the dealer by incorporating therein the amount to be admitted to be due by the dealer and which is not disputed by the dealer. The Sales Tax Officer, however, states in the impugned order that "The amount assessed is not in dispute according to the Assessing Authority". This is doing violence to the aforesaid Rule 8(4)(c)(ii). The dealer has disputed the levy of tax by filing revision petition against the order of assessment. Learned Counsel for the respondent submits that wider interpretation is required to be given to this Rule. We are unable to accept the submission that by giving wider interpretation to Rule 8(4)(c)(ii) the dealer would be required to deposit even disputed tax and if he fails to deposit the same, issue of forms can be denied. In view of the clear language of the Rule in question such a plea cannot be accepted. If the intention of the Rule was that the issue of declaration forms can be denied for default in making the payment of the amount of the tax assessed, even though disputed, then the part of the rule which requires that the dealer is required to make the payment of the amount which is admitted to be due and which isnotindispute,wouldbecomeredundant.Wealsoseenothing in the scheme of the Act or the Rules, as contended by learned Counsel for the respondent, that the dealer has to deposit the amount assessed even if the dealer disputes it and he fails to deposit the same, issue of declaration forms can be denied to the dealer. The decision of Supreme Court in Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad and Others, has no bearing on the point in issue before us.
(5) The contention that an alternative remedy is available to the petitioner and, therefore, this Court should not entertain this petition, on the facts and circum- stances of the present case, is again devoid of any force. The availability of the alternative remedy does not create a bar to the exercise of the jurisdiction by this Court under Article 226 of the Constitution. In our view the order impugned in the petition is wholly without jurisdiction and the authority of law and it is, therefore, a fit case to quash the same in exercise of our writ jurisdiction rather than directing the petitioner to file an appeal, assuming for the present purposes that such an appeal lies. For the aforesaid reasons, we allow the petition, quash the impugned order dated 4th January, 1996 and make the rule absolute. We direct the respondents to issue ST-1 forms forthwith on petitioner complying with the other formalities, if any. The petitioner shall also be entitled to the costs of this petition quantified at Rs. 5,000.00.