H. N. SETH, J. - (1.) THE petitioner, Messrs. Hulas Rai Tulsi Ram Oil Mills, is a registered firm manufacturing mustard oil with the aid of Bengal type kolhus and expellers run by diesel engine. On 22nd January, 1969, the State Government issued a notification under section 4-B, U.P. Sales Tax Act, declaring oils of all kinds other than edible oils, manufactured on ghannis by human or animal power, to be notified goods under the said section. It further declared that with effect from the date of the notification purchase tax under section 3-D on the first purchase of raw material by a dealer holding a recognition certificate for the manufacture of the said oil will be levied at the rate of 2 paise per rupee. In order to claim the relief granted by the aforesaid notification, the petitioner made an application on 26th March, 1969, under rule 25-A of the Rules framed under the Act, praying for the grant of a recognition certificate. The Sales Tax Officer, Shahjahanpur, issued the recognition certificate prayed for on 9th April, 1970. It was mentioned in the certificate that it will come into effect from the date of the application, namely, 26th March, 1969. Subsequently, the Sales Tax Officer passed an order on 1st August, 1970, purporting to be under section 22 of the U.P. Sales Tax Act, directing that the aforesaid recognition certificate was to take effect from the date of its issue, i.e., 9th April, 1970, and not from the date of the application as mentioned in it. According to the petitioner, before making alteration in the recognition certificate, the Sales Tax Officer did not issue any notice to him nor did he afford any opportunity to him to have his say in the matter. Subsequently, for the assessment year 1969-70, he assessed the petitioner to purchase tax as if the recognition certificate issued on 9th April, 1970, did not ensure for that assessment year.
(2.) THE petitioner has now approached this court for exercising its jurisdiction under article 226 of the Constitution. He contends that the Sales Tax Officer had no jurisdiction to make any alteration in the recognition certificate without issuing notice to the petitioner. Since the petitioner made the application for issue of recognition certificate on 26th March, 1969, it was rightly mentioned in it that it was to come into effect with effect from that date. It follows that the petitioner held the recognition certificate during the period, relevant to the assessment year 1969-70, it was not liable to pay purchase tax on sarson in excess of 2 per cent and the assessment order dated 18th September, 1970, levying purchase tax at the rate of 3 per cent was without jurisdiction. The petitioner, therefore, prays for a writ of certiorari for quashing the assessment order dated 18th September, 1970, levying purchase tax at the rate of 3 per cent and also for a writ of mandamus or other order or direction commanding the Sales Tax Officer, Shahjahanpur, to treat the recognition certificate issued in favour of the petitioner as being effective with effect from 26th March, 1969. The petitioner further contends that sub-rule (5) of rule 25-A, which specifically provides that the recognition certificate is to take effect from the date of its issue, is ultra vires and that this part of the rule should also not be enforced by the Sales Tax Officer.
(3.) THE petition is contested on behalf of the respondent. In the counter-affidavit filed on their behalf, it is mentioned that although the application for issue of recognition certificate was moved by the petitioner on 26th March, 1969, it was not accompanied by court-fee stamp of Rs. 10. The office also put up a report to this effect. Requisite court-fee stamp of Rs. 10 was supplied on 9th April, 1970, and the recognition certificate was issued on that very day. By inadvertence it was mentioned in the certificate that it was to be effective with effect from 26th March, 1969. When the mistake was discovered, the Sales Tax Officer exercised his power under section 22 of the U.P. Sales Tax Act and made the necessary correction. It was denied that any part of rule 25-A is ultra vires. It may be mentioned here that in the counter-affidavit, the assertion made in the petition that the order rectifying the recognition certificate was made behind the back of the petitioner and without affording him any opportunity of being heard, has not been controverted.;