KAMAL KUMAR SHARMA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE petitioner being Himachal Pradesh PWD contractor since May 10, 1983 has executed various works of buildings or bridges, etc. , under Himachal Pradesh Public Works Department for which materials were carted to the sites by making purchases from both within and outside the State of Himachal Pradesh as per the requirement of the works during the period from 1987 to 1991. The precise grievance of the petitioner is that for making assessment of sales tax under the Himachal Pradesh General Sales Tax Act (hereinafter called as "the Act") for the period 1987-88 to 1990-91, the Commissioner, Excise and Taxation has not permitted the concessional rate of 4 per cent being the rate prescribed for the sale made to the Government and has charged the rate of 7 per cent for want of form "d", which was required to be issued by respondents Nos. 4 to 6. According to the petitioner despite his requests/representations/notice under section 80 of the Code of Civil Procedure respondents Nos. 4 to 6 did not issue form "d", which gave him cause of action to file the present petition seeking the following reliefs :

(2.) RESPONDENTS Nos. 2 and 3, 1, 4 and 5, and 6 have filed separate reply (s) affidavit (s) to resist the writ petition. The stand of respondents Nos. 2 and 3 is that, "the concessional rate of tax at 4 per cent can only be charged for the sale made to the Government as per clause (8) of Notification No. 1-15/73-Eandt (Sectt.) dated May 29, 1974, provided a certificate in form stated in the para of such sale is furnished by the dealer to the assessing authority. Since the petitioner failed to procure the said certificate in this form from respondents Nos. 4 to 6 and as such the petitioner was assessed at 7 per cent as is evident from annexures P-3 to P-6. The replying respondents can only charge concessional rate of 4 per cent tax for the sale made to Government department on furnishing of declaration as stated above. The respondents Nos. 4 to 6 are to submit the certificate in accordance with the provisions of the Act, Rules made thereunder and notification issued under the Act ibid. "

(3.) IN the rejoinder to the reply (s) affidavit (s) the petitioner has reiterated that form "d"/certificate was required to be issued by respondents Nos. 4 to 6 according to the provisions of the Act, Rules made thereunder and the notification issued under the Act for the purchases made by them, in the absence of which the petitioner could not avail concessional rate of tax. According to the petitioner the cause of action lastly arose to him on February 13, 1995 when the assessment for the years 1987-88 to 1990-91 was finalised, as such, the petition does not suffer from delay and laches.