TMI Blog1988 (12) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... rement orders issued under the Haryana Rice Procurement (Levy) Order, 1985, hereinafter referred to as "the Levy Order", and for a direction to the State of Haryana and the District Food and Supplies Controller, Karnal (respondents 1 and 2) to pay sales tax payable in respect of supply of rice under the orders issued under the Levy Order and for a declaration that until the State Government pays the sales tax on the transactions of supply made in pursuance of the Levy Order, the assessing officers are not competent to recover the tax on these levy transactions. The petitioner is a registered dealer within the meaning of the Act and is also a licensed miller under the provisions of the Punjab Rice Millers Licensing Order. Under the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a [1987] 66 STC 37, a Division Bench of this Court interpreted the Schedule and the Note and held that the price fixed is exclusive of cost of gunny bags and taxes, if any, and the dealers were entitled to add sales tax payable under the Act to the procurement price so fixed under Schedule III. In fact this position was conceded in the earlier judgment by the AdvocateGeneral, Haryana, who appeared in that case and the Advocate-General, who now appeared for the respondents in this case also. If there is no dispute that the procurement price fixed under Schedule III of the Levy Order is exclusive of taxes, then we fail to see how the petitioner can have any grievance at all because it will be entitled to add the sales tax to the procurement p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions of supply of rice to the District Food and Supplies Controller that is disputed in this writ petition. Now the question, therefore, which arises for consideration is, as to whether supply and delivery of rice to the Purchase Officer under the Levy Order, 1985, is a sale within the meaning of the Haryana General Sales Tax Act, 1973, attracting liability to tax. In a series of decisions, the Supreme Court on the basis of the decision in State of Madras v. Gannon Dunkerley Co. (Madras) Ltd. [1958] 9 STC 353; AIR 1958 SC 560, has held various transactions, which resemble, in substance, transactions by way of sales, to be not liable to sales tax. It was held in those cases that a transaction in order to be subject to levy of sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven retrospective operation and they were deemed to have come into force on February 2, 1983. There is no dispute as to the validity of the amending Act No. 11 of 1984 and there could be no question of its validity either, as the State Legislature could impose a levy of sales tax retrospectively-vide the decision of the Supreme Court in Hira Lal Rattan Lal v. Sales Tax Officer [1973] 31 STC 178. However, it was sought to be contended that even after the amendment, the levy transactions do not become sale or purchase on the basis of observations of the Supreme Court in Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer [1978] 42 STC 31 and Associated Cement Co. Ltd. v. Commercial Tax Officer [1981] 48 STC 466. Both are prior to the amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for tax it may be a relevant ground for imposing or not imposing penalty but that has no bearing on the liability to tax itself. Even the fact that the purchaser is a Government and the liability to pay tax is on the Government, in our opinion, makes no difference. The liability to pay tax arises under the statute and it has to be complied with. If it has any remedy against the Government, that cannot affect the liability to pay tax. In the circumstances, merely on the ground that the petitioner was not able to collect tax from the Government, it is not open to it to say that it will not pay sales tax. Nor, can we direct the Government to pay the money to the petitioner in these proceedings. We may, however, state that it appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985-86 and subsequent assessment years. So far as penalty, interest and liability of sales tax on bardana is concerned, which are also raised in this petition, we are of the view that the petitioner shall exhaust its remedies under the Act by way of appeal and revision and come to this Court on reference if it has not got any remedy, but we cannot interfere with these matters in a petition filed under article 226 of the Constitution. In fact the Sales Tax Act is a compendious code itself and the remedies provided thereunder are effective and we cannot encourage this practice of coming direct to this Court without exhausting the remedies provided under the Act. The reliefs relating to the same are, therefore, relegated to the remedies under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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