P.C. Pandit, J. - (1.) THE petitioner in this writ petition under Articles 226 and 227 of the Constitution is a Public Limited Company known by the name of M/s Karam Chand Thapar and Brothers (Coal Sales) Limited, Amritsar. According to the petitioner they had been doing the business of procuring coal and coke as delcredre agents for the authorised consumers of coal in Whose favour permits for the purchase of coal were issued by the proper authorities under the provisions of the Colliery Control Order, 1945, as amended in 1952. From the year 1953, they also started running a small coal and coke depot at Model Town, Amritsar, for meeting the requirements of small -scale consumers and for this purpose they themselves had been buying coal as a permit -holder and then selling the same to the consumers.
(2.) THE East Punjab General Sales Tax Act of 1948 (hereinafter referred to as the Act), came into force with effect from 1st May 1949. Under section 7 thereof a "dealer", which term had been defined in the Act, had to get himself registered with the Sales -Tax Authorities. According to the petitioner, under a mistaken notion of Law, they got themselves registered with a view to avoid subsequent legal complications or possible penalties under the Act for both categories of their business. Consequent upon this registration the assessments as well as advance tax demands followed in the subsequent years commencing from the assessment year 1949 -50 to 1957 -58. The assessed tax for these years was duly paid by the petitioner under a mistake of law. On 22nd March, 1959 the Deputy Secretary to Government of Punjab, Revenue Department, Chandigarh, however, addressed a letter to the General Secretary, Punjab Coal Merchants Association, informing them that the coal agents were not covered by the term "dealer" given in the Act and were not liable to pay sales tax. Meanwhile, various High Courts had also held that the coal agents were not 'dealers' as contemplated by the Sales tax Acts of their respective States in view of the provisions of the Colliery Control Order, The Supreme Court also had held to that effect. Subsequent to the clarification made by the Punjab Government, the petitioner on 8th September, 1959 made two applications to the Excise and Taxation Officer, Amritsar, claiming the refund of the amounts illegally levied and collected by the Sales Tax Authorities from the petitioner as coal agents. For the assessment years 1949 -50 to 1955 -53 the assessments had been completed and final payments had been deposited, whereas for the assessment years 1956 -57 and 1957 -58 only advance payments had been made under Rule 40 of the East Punjab General Sales Tax Rules, 1949 and the final assessment orders were not yet passed. That is why, two separate applications for refund had to be made. In the first application relating to the assessment years 1949 -50 to 1955 -56, a refund of Rs. 74,053/12/9 was claimed, while in the second relating to the assessment years 1956 -57 and 1957 -58 a refund of Rs. 29 86711/ - was asked for. On 7th December, 1960 The Sales Tax Assessing Authority, respondent No. 3, granted the second application and allowed the refund. It, however, made no' order on the first application and kept silent. Dissatisfied with this attitude of respondent No. 3, the petitioner made a representation to the Excise and Taxation Commissioner, Punjab, Patiala respondent No. 2, on 20th December, 1961, Since a copy of this representation was also sent to the Senior Excise and Taxation Officer, Amritsar, he on 6th January, 1982 informed the petitioner that their representation had been filed after due consideration They were further advised to go in appeal or revision, if they so desired. Subsequently on 23rd May, 1962, respondent No. 2 also wrote to the petitioners Company that the facts of the cases for the assessment years 1949 -50 to 1955 -56 were different from the facts that would warrant the application of the general proposition as laid down In the letter dated 22nd March, 1959 issued by the Deputy Secretary, Revenue Department and, therefore, no refund could be granted. It was further stated that the orders passed by the Assessing Authorities were in order and in case the 'petitioner considered them otherwise, they should have got them set aside by resorting to legal remedy. This led to the filing of the present writ petition on 15th October, 1962 and two relief's have been claimed by the learned counsel for the petitioner before me, (i) a writ of certiorari "quashing the order of the respondents levying and confirming the levy purporting to be sales -tax" and (ii) a writ of mandamus directing the respondents to refund the amount of Rs. 74,053/12/9 paid during the assessment years 1949 -50 to 1955 -56. In the return filed by the respondents, it was stated that the petitioner was a "dealer" and was doing business in coal. It was on their application dated 22nd March, 1949 that a registration certificate was issued to them on 30th March, 1949. Their assessment was framed in accordance with the provisions of the Act. At no stage did they object to this assessment challenging their registration as a "dealer". As regards the refund of Rs. 29,867/11/ relating to the assessment years 1956 57 and 1957 -58, it was stated that the same was wrongly allowed and even the facts were quite different from those for the years 1949 -50 to 1955 -56. It is apparent from the assessment orders for the years 1956 57 and 1957 -58 dated 7th December, 1960 (annexures 'K' and 'K -1' to the writ petition) that the petitioner -Company had filed affidavits statins the rein the business conducted by them as coal agents and as depot -holders. These affidavits had not been contradicted by the Department and, therefore, the figures therein, were taken to be correct by the Assessing Authority. In the assessment orders relating to the years 1949 -50 to 195S -56, no such distinction between their business as coal agents and as depot holders had been made and no relief from sales -tax was claimed by them as coal agents. So far as the application for the refund of the sales -tax regarding the assessment years 1949 -50 to 1955 -56 was concerned, it was mentioned that this application had been duly considered by the Assessing Authority and the petitioner had been informed that it had been filed after due consideration. The petitioner was further asked to go up in appeal or revision as the case may be under sections 20 and 21 of the Act.
(3.) THE only contention raised by the learned counsel for the petitioner was that the petitioner Company were merely coal agents and, consequently, not covered by the term "dealer" as defined in the Act. on such the Assessing Authority had acted without jurisdiction in assessing them to sales -tax and recovering the same from them. All the assessment orders, therefore, were liable to be quashed and the petitioner was also entitled to the grant of a writ of mandamus directing the respondents to refund the amount so collected. It may be mentioned that the learned counsel for the, petitioner specifically stated before me that it was not his case that the assessment orders sufferer from any error of law apparent on the face of the record.;