RADHEY MOHAN GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution filed by Radhey Mohan Gupta as proprietor of a firm of contractors, M. Mohan and Brothers, challenging the action of the Sales Tax Authorities of Delhi State for the purpose of assessing sums due from the petitioner on account of Sales Tax. The grounds on which these actions are challenged are that the petitioner's business, which consists of executing contracts for Municipal buildings, roads and sanitary works, does not bring him within the scope of the definition of "dealer" contained in Section 2(c), Bengal Finance (Sales Tax) Act of 1941 as extended to the State of Delhi, and that the transactions carried out by him do not fall within the meaning of the term "sale".

(2.) In a similar case, Civil Writ No. 174D of 1954 decided by me on 12-10-1954, Webbing & Belting Factory Ltd. v. Sales Tax Officer, 1955 Punj 184 (AIR V 42) (A) I held that a writ petition on this point should not be entertained because the petitioner firm had not exhausted its remedies under Ss. 20 and 21 of the Act, Sub-sections (1) & (2) of Section 20 provide for appeal to the Commissioner of Sales Tax against an assessment order and Sub-section (3) provides for revision by the Chief Commissioner of any order passed under the Act either suo motu or on an application to him. Section 21 contains provisions similar in essence to those of Section 66, Income- tax Act for the reference to the High Court of any question of law arising out of an order passed by the Chief Commissioner in revision under Section 20(3). If the Chief Commissioner refuses to make a reference, the applicant may move the High Court to require the Chief Commissioner to state the case and refer any points of law to this Court.

(3.) In deciding that case I expressed the opinion that if writ petitions challenging the legality of any particular assessment were to be entertained, Section 21 of the Act practically became a nullity, and I followed a decision on a similar point relating to the East Punjab General Sales Tax Act of 1948 by Kapur J. and myself in the case Bharam Chand & Brothers v. Excise and Taxation Commr., 1953 Punj 27 (AIR V. 40) (B).