BRAHMANAND Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution.

(2.) THE only question that arises for decision in the present petition is whether betel leaves come within the meaning of the words "green vegetables". The question arises in this way. The U. P. Sales Tax Act was passed by the Legislature in 1948. The taxing section is Section 3 and Section 4, as originally framed, made exceptions in cases of a number of articles and these could not be made the subject-matter of taxation under Section 3. It specified itself a number of articles and also certain associations and further left it open for the State Government to include certain other associations also in the exemption. Section 4 was subsequently amended some time in 1950 and the amended section divides Section 4 into two sub-sections. Sub-section (2) is not relevant and, as far as Sub-section (1) goes, it lays down that no tax shall be payable on the articles mentioned in Clause (a) of that sub-section and also with respect to the goods of the associations mentioned in Clause (b ). The Government has been given a right under both the clauses to exempt certain other articles or goods from taxation as also other associations or class of persons. After the coming into force of the Act in 1948, a notification was issued by the State Government which is dated the 7th June, 1948, and which was published in the U. P. Gazette on the same day. In this notification a number of goods have been mentioned as being made exempt from the payment of sales tax. There are altogether 21 items and item No. 4 is the relevant one which is "green vegetables and fresh fruits. " This notification is still in force but reference may also be made to a subsequent notification which modifies the above notification in one matter. The subsequent notification is dated the 12th of July, 1954, and by this notification the Governor of U. P. has ordered that with effect from 1st July, 1954, the provisions of Section 3 of the Act shall not apply to the sale of betel leaves other than prepared pans.

(3.) IT appears that after the passing of the Act no notice was issued to the petitioner by the Sales tax Officer for the levy of sales tax on his turnover for a long time, and it was as late as the 24th of February, 1955, that a notice was issued to the petitioner requiring him to appear before the assistant Sales Tax Officer on 16th March, 1955. The petitioner appeared before the Assistant sales Tax Officer and that officer passed an order on 30th March, 1955, whereby he estimated the total turnover of the petitioner for the assessment year, 1951-52, at a sum of Rs. 40,000 and levied a tax of Rs. 625. It is said that the petitioner urged before the Sales Tax Officer that betel leaves came within the meaning of the words "green vegetables" and were consequently not taxable, but the officer concerned did not accept this contention. Notices have also been issued against the petitioner under Section 21 of the U. P. Sales Tax Act as it is proposed to levy sales tax on the petitioner's turnover for the assessment years 1952-53 and 1953-54 as well. The petitioner made an application to the Commissioner of Sales Tax, Lucknow, asking him to instruct the Sales Tax Officer not to proceed with the assessments against the petitioner, but nothing came out of the application. Another notice was issued to petitioner on 10th May, 1955, asking him to declare his turnover and deposit the tax due without undue delay. It is, as a result of this assessment order and the notices that the present petition was filed praying that a writ of certiorari may be issued quashing the assessment order dated 30th March, 1955, and that a writ of prohibition may be issued commanding the Assistant Sales Tax Officer not to proceed further with the proceedings for the levy of sales tax or for the recovery of the same, from the petitioner.