Inderjit Singh and Company vs State of Punjab and Others

N.K. Sodhi, J.—The Petitioner is a registered partnership firm and also a registered dealer under the Punjab General Sales Tax Act, 1948

(hereinafter called ''the Act''). For the assessment year 1974-75, the Petitioner-Assessee filed its returns showing a gross turnover of Rs.

18,60,769.03. A sum of Rs. 14,53,968 was claimed as a deduction u/s 5(2)(a)(ii) of the Act on account of sales to registered dealers and ST-

XXII Forms in support of the claim were also submitted. On scrutiny of this claim for deduction, it was found that amongst others, sales were

shown to have been made by the Petitioner to M/s Muni Lal & Sons, Amritsar to the tune of Rs. 4,77,587, who were said to be a registered

dealer. The assessing authority recorded the statement of Muni Lai, representative of this dealer on January 6, 1981 and he denied having made

any purchases from the Petitioner Assessee. It was also found that M/s Muni Lal & Sons were a petty Karyana merchant and could not have

purchased hardware and surgical goods from the Petitioner as was alleged by him. The assessing authority while disbelieving the sales allegedly

made by the Petitioner to M/s Muni Lal & Sons, thus, disallowed the claim for deduction to the extent of Rs, 4,77,587 as per its order dated 14th

July, 1981 whereas the rest of the claim was allowed.

Feeling arrieved against the order of the assessing authority, the Petitioner filed an appeal before the Deputy Excise and Taxation Commissioner,

Fatiala. The appellate authority accepted the claim of the Petitioner for deduction on account of sales made to M/s Muni Lal & Sons, Amritsar u/s

5(2)(a)(ii) of the Act and allowed the appeal,--vide its order dated 7th January, 1982. The Excise & Taxation Commissioner, Patiala of his own

motion sent for the records of this for the purpose of sati sing himself as to the legality and propriety of the order dated 7th January, 1982 passed

by the appellate authority. Alter hearing the Petitioner and also the representative of the department, the appellate order was set aside and that of

the assessing authority was restored as per order dated 24th October, 1986 with the following observations:

In view of these findings, it is held that the sales of Rs. 4,77,587 never took place between the Ludhiana dealer and M/s Muni Lal & Sons,

Amritsar whose business was not that of Hardware and Surgical goods and who never had the capacity to make any purchases and who admitted

in affidavit that he never made purchases. The appellate order dated 7th January, 1982 passed by the Deputy Excise & Taxation Commissioner

(A), Patiala Division, Patiala. is, therefore, set aside and assessment order passed by the Assessing Authority, Ludhiana dated 14th July, 1981 is

restored in so far as it pertains to disallowance of this very; deduction. Amount of tax due on account of this disallowance be recovered from the

Respondent-dealer under the provisions of law.

The matter was further taken in revision before the Tribunal u/s 21(3) of the Act. What was urged before the Tribunal was that the Commissioner

had no jurisdiction to exercise his suo motu powers in the case and that it was only the assessing authority who could reopen the assessment u/s

11-A of the Act and-support for this contention was sought from a Full Bench judgment of this Court in Hard Chand Rattan Chand and Company

v. Deputy Excise and Taxation Commissioner 24 S.T.C. 258, on merits, it was contended that the sales made to M/s Muni Lal & Sons were

genuine and the same ought to have been accepted by the assessing authority. Both the contentions advanced on behalf of the Petitioner were

rejected by the Tribunal as well, who--vide its order dated 14th November, 1990, dismissed, the revision, petition and upheld the order passed by

the Commissioner. Instead of moving the Tribunal, requiring it to refer to this Court any question of law arising out of its order, the Petitioner filed

the present writ petition challenging the orders dated July 14, 1981, October 24, 1986 and November 14, 1990 passed by the assessing authority,

the Commissioner and the Tribunal, respectively.

The main contention raised before us on behalf of the Petitioner Assessee is that the order of assessment dated 14th July, 1981 was illegal and

without jurisdiction inasmuch as the assessment was completed beyond five years after the expiry of the period of assessment. It was contended

that the assessment year in question was 1974-75 and the assessment could only be made within five years from 1st April, 1975 and therefore, the

order of assessment dated 14th July, 1981 was totally without jurisdiction and that it could be challenged by way of the present writ petition. We

are unable to accept his contention. It is clear from a perusal of the impugned orders that the plea relating to time-barred assessment was not

raised before any of the authorities below and has been advanced for the first time in the present writ petition after a lapse of ten years.

The learned Counsel for the Petitioner then sought to challenge the impugned orders on merits by contending that the sales made in favour of

M/s Muni Lal & Sons had been wrongly disallowed and that they were genuine. It was also urged that the Petitioner had not been afforded

reasonable opportunity to cross-examine the representative of this firm who denied having purchased the goods from the Petitioner. We regret our

inability to accept these contentions as well. Whether the sales made in favour of M/s Muni Lal & Sons were genuine or not is a pure finding of fact

arrived at by the authorities below on a consideration of the entire evidence and circumstances of the case and the Petitioner cannot be allowed to

challenge the same in proceedings under Article 226 of the Constitution. Even otherwise, if it had any grievance against the order passed by the

Tribunal it was open to the Petitioner to resort to the remedy available u/s 22 of the Act and if a question of law arose from the order of the

Tribunal, the same would have been referred to this Court for its opinion. The Petitioner not having resorted to this procedure cannot be allowed to

challenge the impugned orders on merits in these proceedings.

For the reasons recorded above, we find no merit in this writ petition and the same stands dismissed with no order as to costs.