R.R.Rastogi, J. - (1.) By this petition under Article 226 of the Constitution the petitioners challenge the proceedings for the recovery of Rs. 92,617.25 in pursuance of the notice dated 1st July, 1977, relating to the assessment year 1976-77.
(2.) M/s. Victor Cables Corporation, Ghaziabad, petitioner No. 1, is a partnership firm of which petitioner No, 2, Sri B.K. Gupta, is a partner. The head office of the firm is at New Delhi and its factory is situated at Ghaziabad. It is engaged in the manufacture of electric wires and electric cables. For the assessment year 1975-76 the petitioners effected intra-State sales of aggregate sum of Rs. 38,27,252.19 out of which sales to the extent of Rs. 35,87,576 were made to Government departments and on those sales tax at the concessional rates of 3 per cent and 4 per cent in view of Section 3-G of the U.P. Sales Tax Act was to be charged. This provision has come into force on 26th May, 1975. While filing the quarterly/monthly returns the petitioners deposited the sales tax on the sales made to the various Government departments at the rate of 7 per cent plus 1 per cent which amount came to Rs. 2,85,058.10 whereas at the concessional rates the amount of tax payable was only Rs. 1,92,440.85. In this way the petitioners deposited an excess amount of Rs. 92,617.25. They made an application before the Deputy Commissioner (Executive), Sales Tax, Meerut, through the Assistant Commissioner (Assessment), Sales Tax, Ghaziabad, respondent No. 1, who is the assessing authority of the petitioners, on 27th April, 1977, for adjustment of the said amount towards the sales tax payable by the petitioners for the assessment year 1976-77 and further while filing the monthly returns for that year they also specifically mentioned in the returns that the aforesaid excess amount was being adjusted by them. Respondent No. 1 did not pass any order on that application but referred it to the Deputy Commissioner (Executive), Sales Tax, Meerut, who in turn, informed the petitioners that he would refer the matter to the Commissioner of Sales Tax, U.P., Lucknow. However, no order was passed on that application. Provisional assessment orders were passed for the months April, May and November, 1976, under the U.P. Sales Tax Act and for the month of April, 1976, under the Central Sales Tax Act creating a total tax liability of Rs. 1,22,650.57. The petitioners had already deposited a sum of Rs. 23,615.54 and hence a demand for Rs. 99,035.03 was issued against the petitioners. They deposited a sum of Rs. 6,200 on 25th June 1977 and claimed adjustment of the balance against the amount refundable to them for the preceding year and in regard to which their application for adjustment had been pending. It appears that without disposing of that application the petitioners were served with a notice of demand dated 1st July, 1977, requiring them to pay Rs. 92,617.25 and that notice form the subject-matter of challenge in this writ petition.
(3.) No counter-affidavit has been filed on behalf of the respondents and hence the averments made in the petition have to be accepted as correct.;