UNION OF INDIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE special appeals have been filed by the Union of India u/s 18 of the Raj. High Court Ordinance, 1949 against the orders dated 6. 1. 93 passed by the learned Single Judge dismissing the writ petitions.

(2.) SINCE all these special appeals involve common question of law and fact, they are being disposed of by this common order. For convenient disposal of all these special appeals, the facts from D. B. Civil Special Appeal No. 33 of 1993 are being taken into consideration which are briefly as follows : -

(3.) IN the instant case scrap of all the five departments of Northern Railways viz. Dy. Controller of Stores, Jodhpur, Divisional Superintendent, Engg. Deptt. Jodhpur, Deputy Supdtg. Engineer, Bikaner, Civil Engineer (Construction) Bikaner and Assistant Controller of Stores, Northern Railway, Bikaner has been sold through auction by the petitioner for which it was duly authorised purchaser after recovering the price of the scrap of waste material and the amount of sales tax leviable thereon. There is a categorical finding of the C. T. O. that it has collected the sales tax also from all auction purchasers. This fact of collection of sales tax stands established from the findings recorded by the Assessing Authority and that fact stands supported to some extent from Anx. R/l. This being a question of fact it is not proper for us to go into it in this special appeal particularly when an appeal u/s. 13 of the Rajasthan Sales Tax Act has been filed and is pending before the competent authority. Normally one who recovers tax is liable to deposit it. It was contended by Mr. Joshi that this amount of sales tax which was recovered by them has been paid to different assessees. This fact is seriously disputed by Mr. B. C. Mehta. We are not inclined to go into such disputed questions of fact which can safely be agitated before the Appellate Forum. Keeping in view these facts and circumstances when it is established that the sales tax was recovered at the time of auction purchase we are not inclined to grant any indulgence by staying the recovery of tax till the disposal of that appeal. Thus, the order passed by the learned Single Judge calls for no interference. That apart, according to Sec. 5 (G) of the Rajasthan Sales Tax, one who recovers the tax has to pay the tax. Moreso, the appellant has only challenged the assessment order dated 29. 7. 91 but he has not challenged the rectified assessment order passed on his own application on 10. 3. 92 before the learned Single Judge as also before this Court. Under these circumstances, the petitioner is entitled to no relief.