Guru Nanak Flour and Oil Mills vs The State of Punjab and another

Dua, J.—This petition under Article 226 of the Constitution was initially presented in this Court on 22nd July, 1964 and a rule was issued by the Motion Bench on 23rd July, 1964. In this petition, a writ in the nature of mandamus was sought for directing the respondents, the State of Punjab and the Excise & Taxation Officer, Patiala, to repay the amount of tax which had been wrongfully recovered from the petitioner-firm. In addition, a writ in the nature of certiorari was prayed for quashing the assessment proceedings. In the writ petition, it was averred that the petitioner-firm had during the year 1959-60 when edible oils and oil cakes were subjected to the payment of sales tax, paid a sales tax of Rs. 3,272.62 in respect of the sales of edible oils and Rs 1,500/- in respect of the sales of oil cakes. In 1962, a Division Bench of this Court in Ganga Ram Suraj Parkash v. State of Punjab (1963) 14 S.T.C. 476, struck down the imposition of tax on sales of edible oils as contrary to law. It is further averred that the sale of oil cakes is also exempted from the payment of sales tax under the East Punjab General Sales Tax Act. In view of this decision, the petitioner-firm on 3rd June, 1964 applied to the Excise & Taxation Officer Claiming refund of the tax paid on this count. The Sales Tax Officer, however, rather than refunding the amount already received issued to the petitioner-firm a notice on 16th June. 1964 intimating that the sales tax assessment for the year 1959-60 would be taken up on 23rd June. 1964 and the petitioner-firm should arrange to appear before the officer for this purpose. A partner of the petitioner on 23rd June, 1966 appeared before the Sales Tax Officer and through his attorney applied saying that the assessment for 1959-60 was barred by time and, therefore, the notice was without jurisdiction. In spite of this representation, the petitioner firm was assessed to a sales tax amounting to Rs 2,434.01 for 1959-60. Thereafter, the petitioner was served with a Chilean for paying the amount in the Government treasury. On 27th June, 1964, the petitioner applied for a copy of the impugned assessment order but no copy had till the filing of the writ petition been supplied. In the writ petition, it has been averred that the proceedings for assessment of sales tax cannot be initiated after the expiry of four years and no tax for such a period can be recovered. The proceedings regarding the assessment of sales tax for the year ending with 31st May, 1960 have accordingly been alleged to be null and void because the proceedings started in June, 1964. In addition, it has been averred that there is a legal obligation on the part of the authorities to repay the amount of sales tax wrongfully recovered.

On 4th August, 1964, a petition u/s 151, Code of Civil Procedure, was presented to this Court seeking permission to add additional grounds in the writ petition. This apparently was done after securing a copy of the assessment order. Some of the observations from the assessment order have been reproduced and it has been averred that it was incumbent on the Assessing Authority to either refund the tax already paid on the sales of edible oils or to adjust the same against the amount found payable by the petitioner, Indeed, according to the petitioner, the firm had already deposited more tax than it was liable to pay. The Assessing Authority has, according to this application, ignored the fact that the other assessees in Patiala, district have been allowed by other officers refund of tax on the sales of edible oils. The Assessing Authority has also ignored, so proceeds the averment, that the learned Financial Commissioner has allowed refund to the petitioner also on the sale of edible oils with regard to the assessment years 1958-1959 and 1960-61. Finally, it has been urged that the Assessing Authority had in fact committed contempt of this Court in not obeying its judgment and in acting in violation thereof. This petition was granted subject to all just exceptions by a learned Single Judge on 3rd September, 1964. Apparently, the record does not show that a copy of this application was served on the respondents or that they were given any notice of this petition by this Court.

In the written statement, it has been pleaded that the petitioner had deposited Rs. 4,766.80 Np. voluntarily and it could not be said whether this amount relates to the sales of edible oils or oil cakes. It has further been alleged that the sale of oil cakes has not been shown as an exempted article in Schedule ''B'' appended to the Punjab General Sales Tax Act, 1948 Proceedings for the assessment in question according to the reply, had initiated on 24th January, 1961. The assessment has been asserted to be in accordance with law. It has finally been pleaded that it is incorrect to say that there are no speedy and efficacious remedies available under the Act from the order of the Assessing Authority. The petitioner, it is emphasised, could go in appeal or revision, as the case may be, under sections 20 and 21 of the Punjab General Sales Tax Act, 1948. Reference in support of the objections that the petitioner should not have come to this Court at this stage has been made to a decision of this Court in Khem Chand Vijay Kumar v. J.S. Malhotra (1963) 14 S.T.C. 821.

The learned counsel for the petitioner, Shri S.C. Goyal, has taken me through the assessment order and he has tried to persuade me to hold that a part of the imposition relates to edible oils and oil cakes. I am wholly unable to spell out from the assessment order any imposition on sales relating to edible oils or even oil cakes. On the assessment order, therefore, it is not possible to find any illegality or jurisdictional infirmity discernible on its face leading to any mani�fest injustice in the form of illegal imposition. If by a reference to the accounts or other material on the record, it is possible for the peti�tioner to establish a question of fact regarding imposition of tax on sales of edible oils, then the proper course for the petitioner would be to take proceedings by way of appeal and revision. Jurisdiction under Article 226 of the Constitution for seeking relief, which can more appro�priately be claimed from the appellate or revisional departmental authorities, cannot be invoked as a general rule. Indeed, the Supreme Court and this Court have in a number of decisions laid down in the clearest possible language that an assessee feeling aggrieved from original assessment order should not be encouraged to approach this Court direct without first seeking remedy from the departmental hierarchy. No special reason has been shown for departing from this rule in the present case. The suggestion that time for going to the Appellate Tribunal has by now run out has little cogency on the facts and circumstances of this case. If an aggrieved party has rushed to this Court instead of going to the Appellate Tribunal and thereby allowed period of limitation to expire, then he has to thank himself for such a situation and that by itself would not constitute a sufficiently cogent ground for this Court to depart from the normal rule and go into the merits of the controversy on facts on writ side I am, therefore, unable to allow the petitioner to go into the facts and thereby canvass the merits of the assessment order. Once this assessment order is declined scrutiny, the other question namely that the tax paid should be refunded, being an imposition on an exempted article, cannot survive. It is, therefore, unnecessary to go into the question whether this Court can without setting aside an order of assessment, direct refund of tax, not as an incidental relief but as a substantive relief. The question of applying the rule laid down in Sugan Mal v. State of Madhya Pradesh (1965) 16 S.T.C. 398, cited by the learned Advocate General does not arise.

Incidentally, it may be mentioned that the petitioner firm must apparently have realised the sales tax from its customers to when it sold edible oils etc. and if the tax paid by them was, as it obviously must be, out of the realisation from the customers, then there is obviously no manifest injustice done to it and on this additional ground also, I would be disinclined to interfere on writ side though even otherwise, I have not found any cogent ground for allowing the writ jurisdiction to be invoked by the petitioner.

This petition accordingly fails and is hereby dismissed but with no order as to costs.