Hon'ble Rajes Kumar, J. - (1.) BY means of the present writ petition the petitioner is challenging the assessment order dated 28.11.2008 passed for the assessment year 2005-06 raising a dispute that the Inverter and UPSS (uninterrupted power supply system) have been wrongly assessed to tax at the rate of 10% treating them as unclassified items, while the same were liable to tax at the rate of 4% under Notification No. KA-NI.-2-5746/XI-9(239)/96-U.P. Act-15-48-Order-(30)-2002, dated 13.12.2002 being electronic components and power supply devices.
(2.) HEARD Sri S.P. Gupta, Senior Advocate, assisted by Sri Ashok Kumar, learned counsel for the petitioner, and Sri S.P. Kesharwani, learned Additional Chief Standing Counsel. Learned counsel for the petitioner has submitted that the Inverter and UPSS are the electronic components and being power supply devices, liable to tax at the rate of 4% under the notification dated 13.12.2002. He further submitted that by the circular dated 2.9.2000 the Deputy Commissioner (Legal), Trade Tax, U.P., has informed that the State Government, vide letter dated 18.8.2000 has directed that UPSS also works as 'power supply device' and, therefore, liable to tax as power supply device. The said circular has been withdrawn in the year 2007 and, therefore, it was relevant for the year under consideration. Such direction/circular is binding upon the assessing authority. He submitted that in the assessment year 2004-05 the assessing authority has assessed Inverter and UPSS as an unclassified items and has not accepted the claim of the petitioner. The matter thereafter came up in appeal before the Tribunal. The Tribunal, vide order dated 22/8/2007, allowed the appeal and, following the earlier judgment dated 15.6.2007 of the Ghaziabad Tribunl, held that the Inverter and UPSS are liable to tax at the rate of 4% being power supply devices. He submitted that the Trade Tax Tribunal has treated the Inverter and UPSS as power supply devices in the case of Estroll Power System, Meerut, and in the case of Amla Agencies and the Revision No. 1560 of 2000, filed by the Revenue in the case of Estroll Power System, has been dismissed on 5/8/2008 and the Revision No. 1065 of 2006, filed by the Revenue in the case of Amla Agencies, has also been dismissed on 24/10/2009. He submitted that the assessing authority has erred in coming to the conclusion that the entry of the aforementioned notification dated 13/12/2002 relates to the computer as 'genus' and has illegally held that under the entry only those items will be covered which are electronic goods in the form of computer components. He submitted that this view of the assessing authority is patently erroneous and misreading of the entry of the notification. He submitted that the entry is not only confined to computer components as it is clear from the various items mentioned in the entry, viz. Television component, Television glass shells, transistors, picture tubes, video tapes, audio tapes, etc. which are not computer hardware, software and parts thereof. He submitted that entries are in two parts, viz. (i) computer hardware, software and parts thereof and (ii) electronic components. Under the entry itself the various items are mentioned under the aforesaid two items and, therefore, it is wrong to say that the entry was confined to the computer components only. He submitted that it is a settled law that the circulars are binding on the assessing authority and it is not open to the assessing authority to take any different view, contrary to the circular. In support of the contention, learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Commissioner of Sales Tax, A.P. v. M/s. Indra Industries, 2000 UPTC 472, the decision of this Court in the case of Raghunatyh Laxminarain Spices Pvt. Ltd., Varanasi v. State of U.P. and others, 2000 UPTC 554, the decision of the Supreme Court in the case of Collector of Central Excise, Vadodra v. M/s. Dhiran Chemical Industries, 2002 UPTC 133, the decision of this Court in the case of M/s. Sir Shadi Lal Enterprises Ltd., Shamli v. Union of India and others, 2003 UPTC 696 and the decision of this Court in the case of M/s. U.P. Ceramics and Potteries Ltd., Ghaziabad v. Commissioner of Sales Tax, 1992 UPTC 1333.
(3.) SRI S.P. Kesharwani, learned Additional Chief Standing Counsel, has submitted that whether the Inverter and UPSS are electronic components and power supply devices is a question of fact and to be adjudicated on the basis of the material on record and cannot be decided in writ jurisdiction. He further submitted that the petitioner has an efficacious alternative remedy under the U.P. Trade Tax Act and now under the U.P. VAT Act. Therefore, in the presence of the statutory remedy available to the petitioner, this Court should not entertain the writ petition and relegate the petitioner to avail the alternative remedy. In support of the contention, Sri S.P. Kesharwani has relied upon the decision of the Apex Court in the case of State of Goa and others v. Leukoplast (India) Ltd., 1997 UPTC 512 and the latest judgment of the Apex Court in the case of Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and another, JT 2010(4) SC 54.;