MANGOO MAL KISHORE Vs. H K SHARMA

JUDGEMENT

(1.) The petitioners who are dealing in sugar, Khandsari, bura, batasha and misri have challenged three notices issued by the respondent, purporting to be notices under sec- lion 21(4) of the Bengal Finance (Sales. Tax) Act, 1941 (hereinafter to be called as the Act) under his letter No. ST/W-2/69-70/94 dated January 7, 1970 for the year 1965-66, annexure 19, No. S I /W-2/69.70/95, dated January 7, 1970 for the year 1966-67, annexure 20 and No. Sr/W2'69- 70/96 dated January 7, 1970 for the year 1967-68, annexure 21 on the ground that 'Bura'is sugar and is not liable to sales tax ; that it is not open to the respondent to review the orders of assessment as is sought by him in the aforesaid notices (annexures 19 to 21), nor the respondent is empowered under Rule 71 of the Delhi Sales Tax Rule to re assess the turn-over of the firm as the petitioners firm's turnover was neither under assessed nor escaped assessment; that since "Bura' is not separately' mentioned in Scheduled I or Scheduled III prescribed in section 5(1) of the Act as taxable goods, it is implicit that Bura is included in sugar shown as Entry No. 9 of the 2nd Scheduled rmde under section 6 of the Act, that the impugned notices annexures 19- 21 are beyond the scope, power, jurisdiction and competence of the respondent, that section 20(4) of the Act is ultra vires Article 19(1) (a) and 19(1) (f) of the Constitution of India as it imposes unreasonable restrictions on the trade and commerce to be carried out by the petitionets in 'Bura' sugar.

(2.) It may be stated here that during the pendency of the writ petition, assessment were framed in pursuance to the impugned notices and the petitioners filed an application seeking permission to challenge those assessment orders. The said application was allowed on April 19, 1971. The petitioners in the meantime went up in appeal to Assistant Commissioner, Sales Tax who by his order dated May 26, 1971, held that having regard to the circumstances of the case, the sales tax was to be charged with effect from January 1,1970. The petitioners filed an application (C.M. No. 1362 oF 1971) seeking permission to suitably amend the petition incorporating additional paragraphs with a view to question the findings of the Sales Tax Comimissioner. S. N. Shanker, J. by his order dated September 17, 1971 accepted the application and allowed the petitioners to amend the main petition in terms of the application.

(3.) The petitioners filed the amended petition challenging the assessment order dated March 13, 1970 passed by the respondent for the year 1965-66, assessing sugar-bura to sales tax.annexure P-1 and similar order dated March 13, 1970 pertaining to assessment year 1966- 67, annexure P 2 and order dated 27th March, 1970 pertaining to the assessment year 1967-68, annexure P-3 in the amended writ petition. The petitioners also prayed that order of the Assistant Sales Tax Commissioner dated May 26, 1971, annexure P-4 passed in appeal in so far as it imposes the sales tax on bura-sugar with effect from January 1, 1970 be quashed.