CHANAN MAL Vs. E T O AND ANOTHER

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the Constitution filed by Chanan Mal, a brick-kiln owner of village Harchowal, district Gurdaspur, challenging the legality of certain orders passed by the Excise and Taxation Officer (Assessing Authority), Gurdaspur, respondent No. 1.

(2.) According to the petitioner, he carries on the business of manufacture and sale of bricks at Harchowal. He was registered as a 'dealer' for the purposes of the Punjab General Sales Tax Act, 1948. There being shortage of bricks in the State of Punjab, the State Government had ordered that the brick-kiln-owners were to supply bricks only as against permits to be issued by the District Food and Supply Controller, Gurdaspur, or other authorised persons, who were competent authorities to issue such permits. This was done under the Punjab Control of Bricks Supplies Order, 1956, issued under Section 3 of the East Punjab Control of Bricks Supplies Act, 1949. The result was that the supplies of bricks could be made only to named persons and in specified quantities. The petitioner thus supplied bricks under permits to named persons in specified quantities during the assessment years 1961-62, 1962-63 and 1963-64. He was assessed to sales-tax vide assessment orders, dated 10th October, 1962 (copy Annexure 'A' to the writ petition), 8th April, 1964 (copy Annexure 'A-1' to the writ petition), and 5th June, 1965 (copy Annexure 'A-2' to the writ petition). The petitioner moved a revision petition against the assessment order for the year 1962-63 and, on remand, he was re-assessed for that year, whereby he got a refund of Rs. 258/-, vide order, dated 30th April, 1968 (copy Annexure 'B' to the writ petition). On 5th December, 1966, this court in the case of Jaswant Singh v. The Excise and Taxation Officer (Assessing Authority), Hissar, 1967 AIR(P&H) 359, held that the sale against permits issued under the Punjab Control of Bricks Supplies Order, 1956, was not 'sale' and thus not liable to the imposition of sales-tax. On the basis of this decision the petitioner moved a refund application on 5th September, 1968, before respondent No. 1, claiming refund of the sales-tax which had illegally been charged from him. Respondent No. 1 rejected the refund application of the petitioner, vide his order dated 22nd October, 1968 (copy Annexure 'E' to the writ petition. That led to the filing of the present writ petition on 13th January, 1969, for quashing the order of respondent No. 1 (copies Annexures 'A', 'A-1', 'A-2', 'B' and 'E' to the writ petition), and ordering the respondents to refund the sales-tax.

(3.) It is conceded by the learned counsel for the petitioner that this point, which is being taken in these proceedings, was not raised before the Assessing Authority when the assessment orders were made. It is further conceded that no appeal or revision provided under the Act was filed against the said assessment order, with the result that they had become final. The petitioner could not claim refund of the sales-tax till the impugned assessment orders were set aside by appropriate proceedings under the Act. Reference in this behalf be made to the Supreme Court decision in State of Madhya Pradesh v. Haji Hasan Dada, 1966 AIR(SC) 905. The assessment orders, as I have already mentioned, were made on 10th October, 1962, 8th April, 1964, and 5th June, 1965. The decision of this Court was admittedly given on 5th December, 1966. Even then the petitioner kept silent for twenty-one months and it was only on 5th September, 1968, that an application for refund of the sales-tax was made before respondent No. 1. This application was rejected on 22nd October, 1968. Admittedly, no appeal or revision, as provided under the Act, was filed against that order as well. Under these circumstances, I am not prepared to interfere with the impugned orders in this highly belated petition, especially when the petitioner did not avail of the remedies by way of appeal and revision provided under the Act.