K C VANASPATI Vs. ASSESSING AUTHORITY

JUDGEMENT

(1.) A common question arising for determination in all the three petitions preferred by the petitioner is : whether, after it has been found, as a fact, that the petitioner has collected sales tax on the sale of vanaspati manufactured by it and such a finding of fact is recorded by a statutory authority designated for the purpose under the Jammu and Kashmir General Sales Tax Act ("the Act", for short hereafter), could a petition to determine the abstract question of the availability or otherwise of the exemption granted under a particular Government Order, to which a reference is to be presently made, or the application of the doctrine of promissory estoppel, which alone is the basis for claiming relief, be maintainable ? To appreciate this a brief resume of the facts on which the main challenge is founded, becomes inevitable.

(2.) IN Writ Petition No. 52 of 1982, order No. STG/168 dated 16th January, 1982 passed by respondent No. 1 assessing the petitioner to the sales tax for the period ending September, 1981, is sought to be quashed, inter alia, on the grounds that Government Order No. 159-Ind. of 1971 dated 26th March, 1971 read with Government Order No. 414-Ind. of 1971 dated 25th August, 1971, is by itself an outright exemption from payment of sales tax and consequently the assessment made and the order for recovery of sales tax made by the assessing authority cannot be allowed to stand.

(3.) THIS petition has been resisted by the State on various pleas including the pleas that the interpretation placed on Government Orders under reference, is not correct as the Orders of 1971 cannot be construed to be orders of exemption issued under section 5 of the Act; that the doctrine of promissory estoppel is not attracted to the facts and circumstances of the case as the petitioner has, in fact, been found to have collected sales tax from the consumers on the sales of its product from the very beginning it went into production and, therefore, under section 8-B of the Act it was under a statutory obligation to deposit the same. It is also maintained that the factory was set up by the petitioner de hors the alleged representation and relying upon the correspondence between the petitioner and the sales tax authorities, ending with the letter dated 12th August, 1981, it is averred that the petitioner understood the position very well and collected the sales tax from the very beginning. It is further pleaded that as no order or exemption has been issued under section 5 of the Act, the petitioner could not escape its liability to account for the sales tax found due from it. These averments have not been countered by any rejoinder.