9911796707
TMI Blog1980 (9) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Whereas relief in respect of notices issued to the petitioner under section 22 of the Sales Tax Act for the assessment years 1972-73 and 1973-74 has been claimed in Writ Petition No. 268 of 1978, that in respect of similar notices issued with regard to the assessment year 1974-75 has been claimed in Writ Petition No. 266 of 1978. The notice issued under section 21 of the U.P. Sales Tax Act for the assessment year 1974-75 is the subject-matter of controversy in Writ Petition No. 308 of 1979. Briefly stated, the facts giving rise to these petitions are that regular assessments of the petitioner under the U.P. Sales Tax Act for the years 1972-73, 1973-74 and 1974-75 as also its assessment under the Central Sales Tax Act for the year 1974-75 were completed respectively on 29th November, 1977, 29th January, 1977, 30th March, 1978, and 30th March, 1978. In all these assessments the assessing authority had, without referring to any notification or provision, assessed the petitioner's turnover of sales of electric K.W.H. meters in accordance with rates specified in respect of entry No. 7-A mentioned in the notification dated 1st October, 1965, as amended from time to time. The said ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 10 per cent and thereafter at the rate of 12 per cent (the rate prescribed in respect of item No. 7 in the notification dated 1st October, 1965). Likewise it took the view that sales tax under the Central Sales Tax Act for the year 1974-75 had also to be paid by the petitioner at the same rate. It accordingly issued the impugned notices under section 22 of the Sales Tax Act on 12th June, 1978, and required the petitioner to show cause why its assessment for the years 1972-73 to 1974-75 be not corrected accordingly. The petitioner then filed objections dated 28th June, 1978, before the assessing authority claiming that as the assessment orders did not suffer from any apparent error, it had no jurisdiction to initiate proceedings under section 22 of the Sales Tax Act. It also contended that the decision of this Court in the case of Scientific Importers[1978] 42 S.T.C. 328; 1978 U.P.T.C. 398. had no application to the petitioner's assessment and that the assessment orders were quite correct. Since the assessment orders did not suffer from any error much less an error apparent, the assessing authority had no jurisdiction to issue the impugned notices to it. Subsequently the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 12 per cent specified against item No. 7 in the notification dated 1st October, 1965. The petitioner has gone up in appeal against its assessment for the year 1975-76 but the said appeal has remained pending awaiting the decision in these petitions. The orders passed by the assessing authority in connection with the petitioner's assessment for the year 1975-76 shows that so far as it is concerned it has finally made up its mind that the assessments for which it has issued notices under sections 22 and 21 of the Sales Tax Act were wrong and that they have to be corrected or rectified accordingly. It is not disputed that electric K.W.H. meters manufactured and sold by the petitioners are electrical goods. The main controversy between the parties centres round the question as to whether the turnover of the sales of such meters is covered by item No. 7 mentioned in the notification dated 1st October, 1965, which deals with the imposition of sales tax on electrical goods other than equipment, plants and their accessories required for generation, distribution and transmission of electrical energy at the rate of 10 per cent/12 per cent or whether it is covered by the entry in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that a part of the petitioner's turnover for the year 1974-75 had been assessed to tax at a rate lower than that at which it had to be assessed under the Act. In the circumstances the impugned notices issued by the assessing authority under sections 22 and 21 of the Sales Tax Act were within jurisdiction. The learned counsel appearing for the respondent further contended that as at this stage only show cause notices under sections 22 and 21 of the Sales Tax Act have been issued to the petitioner, it is open to it to appear before the assessing authority and to show to it that no change is required to be made in the various assessment orders. There is thus a clear alternative remedy available to the petitioner under the Sales Tax Act itself and no case has been made out for invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution. We will first of all deal with the objection raised on behalf of the respondent that these writ petitions should not be entertained as it is open to the petitioner to obtain redress by following the procedure prescribed by the Sales Tax Act. A perusal of the impugned notices issued to the petitioner shows that the on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings under the U.P. Tax Sales Tax Act. The principal submission made by the learned counsel for the petitioner before us has been that the observations made by this Court in the Scientific Importers' case(1) are not accurate. So long as those observations are not clarified by this Court, it will not be open to the sales tax authorities to entertain the petitioner's submission that electric K.W.H. meters manufactured and sold by it, which undoubtedly are instruments used for measuring electrical energy, do not fall under entry No. 7 but their turnover is covered by the entry at item No. 7-A of Notification No. 7096/X-1012 dated 1st October, 1965. Such a submission can be made only before this Court. Consequence of accepting such a submission would necessarily be that it will have to be held that in various assessment orders regarding which the notices under sections 22 and 21 of the Act impugned in these petitions have been issued, the petitioner's turnover had been brought to tax by applying the correct rate and that neither do the assessment orders suffer from any error much less an error apparent on the record nor could there be any occasion for the assessing authority to reop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other instrument which is not necessary for conveying electrical energy to the consumer but which is used only for the purposes of measuring the quantity of electrical energy supplied to the consumer would not be an instrument which is required for distribution of electrical energy. Such an instrument would be an instrument merely for measuring electrical energy supplied to the consumer. We are unable to interpret the meaning of the expression "instruments required for distribution of electrical energy" in the manner suggested by the learned counsel for the respondent. The interpretation placed by the learned counsel in substance equates distribution of electrical energy with transmission of electrical energy. The instruments which are necessary for actually conveying the electrical energy to the premises of the consumer would be the instruments which would be required for transmitting electrical energy to the premises of the consumer. There is a clear distinction between the expressions "transmission" and "distribution". The result of accepting the interpretation suggested by the learned counsel for the respondent would be that all the instruments which according to him are req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So far as the amperometers and voltameters were concerned, this Court followed the decision in the case of Commissioner of Sales Tax, U.P. v. Import Association[1975] 35 S.T.C. 491; 1974 U.P.T.C. 565. and observed that so far as galvanometers were concerned they were also used for measuring electrical energy and, therefore, on the principle laid down in the Import Association's case(1) they were also covered by entry No. 7. That judgment was delivered by one of us. In that case when it was observed that galvanometers are used for measuring electrical energy, the observation merely meant that galvanometers were used for the purposes of measuring one aspect of the electrical energy which is passing through a circuit like amperometer which is used for measuring the amperage at which the current is flowing through the circuit; and voltameter is used for measuring the voltage at which electrical energy is being supplied through the circuit. The expression was not used in the sense that galvanometers are used for measuring the total amount of electrical energy sold or distributed to the customer. It may be that the instruments required for measuring various aspects of the current flowing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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