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TMI Blog1951 (7) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India for issue of appropriate writs against the Sales Tax Officer, Patiala, and the Sales Tax Commissioner, Patiala & E.P. States Union. The petitioners in petitions Nos. 7, 8, 12, 16 and 20 are Halwais while the rest are Dhabawalas, i.e., keepers of wayside hotels. The Sales Tax Officer took proceedings against them under Section 11 of the Patiala and East Punjab States Union General Sales Tax Ordin- ance (No. XXXIII of 2006) and assessed them to certain amounts of tax. Against these orders the petitioners preferred revision petitions to the Commissioner of Sales Tax. The Commissioner called upon them to furnish proof of payment of the tax and also informed them that in case they failed to furnish such proof within a week of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the provisions of law and was even otherwise proper and consequently it could not be questioned in these proceedings. Last of all, he urges that there was nothing wrong or illegal in the proceedings taken against the petitioners by the Assistant Sales Tax Officer and his orders by which he levied tax against them were proper and legal. In order to be able to understand the points of view, both of the petitioners and the respondents, it is desirable to refer briefly to the relevant provisions of the Ordinance. Section 5 lays down that subject to the provisions of the Ordin- ance there shall be levied on the taxable turnover every year of a dealer a tax at such rates as the Government may by notification direct. Section 6 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assess to the best of its judgment the amount of tax due from the dealer in respect of such period and all subsequent periods, and the assessing authority may direct that the dealer shall pay by way of penalty in addition to the amount of tax so assessed a sum not exceeding one and a half times that amount." Section 20 makes a provision for appeals and it is laid down in sub-section (1) that when a dealer receives notice of assess- ment under sub-section (3) of Section 11 he may appeal to such authority as may be prescribed within sixty day's from the receipt of the notice. The proviso to this sub-section is that no appeal shall be entertained by such authority unless it is satisfied that the amount of tax assessed on the dealer has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermine whether the petitioners' contention that the articles in which they dealt were exempt from tax and whether they were legally assessable to any tax. The words of sub-section (1) of Section 20, which are quoted above, are quite clear and they give the right of appeal to every dealer to whom a notice is given under sub-section (3) of section 11. As far as I have been able to see the Ordinance does not limit the scope of an appeal and it is, therefore, permissible to think that if the dealer objects to the notice on the ground that he was not liable to pay any tax or that the articles in which he dealt are exempt, the appellate authority is bound to go into these matters and in case it comes to the conclusion that the position taken up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as illegal. I have no hesitation in coming to the conclusion that this contention is without any force, because Rule 61 of the rules framed by the Government makes the provisions of Rules 58 and 59 regarding the appeals applicable to revision petitions and it is laid down in Rule 58 that the memorandum of appeal shall inter alia be endorsed with a note that the amount of tax assessed and the penalty (if any) have been paid, and Rule 59 is to the effect that an appeal may be summarily rejected if the appellant fails to comply with any of the requirements of Rule 58. Here it is admitted that the petitioners have not paid the amount of tax to which they were assessed. Accordingly it must be held that virtually speaking they did not avail of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... added that only in most exceptional cases where (1) 2 Pepsu L.R. 443. (3) A.I.R. 1951 All. 257. (2) A.I.R. 1951 Mad. 249. the conduct of the authorities concerned is such as to make it clear that they have not been discharging their duties and are not likely to do so without the guidance of the Court that the Court will be justified in issuing mandamus. In this case, there is nothing to show that the Sales Tax Officer or the Commissioner did not discharge their duties or that they were not likely to discharge their duties without the guidance of the Court and that accordingly this being an exceptional case appro- priate writs should be issued even though the petitioners have not availed of the remedies provided by the Ordinance. In fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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