- (1.) The petitioner, M/s Hira Lal Ayodhya Prasad, through its partner Sri Satya Narain, has filed the present petition under Article 226/227 of the Constitution of India, seeking a writ of certiorari quashing the notice of demand dated 30.3.1982 issued by the Sales Tax Officer, Saharanpur, respondent no. 2 contained in annexure 6 to the writ petition and the assessment order dated 30.3.1982 passed by the respondent no. 2 contained in annexure 5 to the writ petition. The petitioner has also sought a writ of mandamus commanding the opposite parties not to realize a sum of Rs.39,272.62 and interest @ 2% per month on the said amount from May, 1979.
(2.) The facts giving rise to the present petition are that the petitioner is a partnership firm and is a registered dealer under the provision of the U.P. Trade Tax Act (hereinafter referred to as the Act). It acts as commission agent and deals in Khandsari Sugar. It may be mentioned here that Khandsari Sugar on which the excise duty and additional excise duty has not been paid is liable to tax at the point of first purchase. For the assessment year 1978-79, the petitioner had filed its return showing the taxable purchase on non-duty paid Khandsari Sugar at Rs.12,41,473/-during the period 1.4.1978 to 31.12.1978. The petitioner had admitted and deposited the tax @ 4% at turnover of such Khandsari Sugar. However, for the period 1.1.1979 to 31.3.1979, the petitioner had filed its return showing the turnover of non-duty paid Khandsari at on Rs.19,63,603.66. The petitioner realized and deposited tax @ 4% on the said turnover. The sales Tax Officer, respondent no. 2 passed the assessment order for the assessment year 1978-79, the respondent no. 2 found that the petitioner had deposited a sum of Rs.42,485.30 as tax in excess during the period 1.1.1979 to 31.3.1979 on the disclosed turnover as rate of tax on non duty paid Khandsari Sugar was only 2% and not 4%. The excess amount was forfeited by invoking Section 15-A(1)(qq) of the Act.
(3.) It appears that the State Government had reduced the rate of tax on non duty paid Khandsari Sugar from 4% to 2% retrospectively with effect from 1.1.1979 vide Notification No. 51-II-3846/X-6(1)-79 dated 30.6.1979. Consequent upon retrospective reduction of tax on non-duty paid Khandsari the Commissioner of Sales Tax U.P. had issued a circular on 6.8.1979., copy whereof has been filed as annexure 2 to the writ petition, wherein all the Sales Tax Officers of the State had been directed that if any dealer makes an application claiming adjustment of the excess amount of purchase tax deposited by him on the turnover of purchases of Khandsari Sugar towards the tax due for the future period or makes such claim of refund/adjustment in the quarterly return then such claim of adjustment should be allowed. The petitioner accordingly made an application for adjustment of the excess amount of Rs.39,405.29 deposited by it as purchase tax for the assessment year 1978-79 towards the payment of purchase tax due for the second and third quarter of the assessment year 1979-80. According to the petitioner, instead of adjusting the said amount, the respondent no. 2 had issued notice under section 15-A(1) (qq) of the Act for forfeiting the excess amount of Rs.39,272.62 as the said amount had been realized by the petitioner from its customers. Thereafter, the respondent no. 2 vide order dated 31.12.1980 had forfeited the excess amount of Rs.39,272.62 under section 15-A (1) (qq) of the Act. It may be mentioned here that the petitioner had challenged the order dated 31.12.1980 passed under Section 15-A (1) (qq) of the Act in Civil Misc. Writ Petition No. 269 (Tax) of 1981 which had been dismissed by this Court vide judgement and order dated 8.5.1996.;