H.N.Seth, J. - (1.) By this petition under Article 226 of the Constitution, the dealer, M/s. Patwala Sales Corporation, Manik Chowk, Jhansi, questions the validity of the order under Section 22 of the U. P. Sales Tax Act, passed by the Sales Tax Officer, Jhansi, on 29th September, 1975, in respect of the petitioner's assessment for the year 1970-71 as also that of the appellate order of the Assistant Commissioner (Judicial), Sales Tax, Jhansi, passed on 20th November, 1976.
(2.) The petitioner, M/s. Patwala Sales Corporation, Manik Chowk, Jhansi, is a registered partnership firm which carried on business in machinery parts, rubber hose, sowing machines, pumping sets, etc. During the course of regular assessment under Rule 41(5) of the Rules framed under the Sales Tax Act, the Sales Tax Officer, Jhansi, vide his order dated 29th January, 1975, determined the petitioner's turnover of sales of pumping sets for the assessment year 1970-71 as Rs. 40,210.59 and subjected it to sales tax amounting to Rs. 1,206.32 at the rate of 3 per cent. Subsequently a notice under Section 22 of the Sales Tax Act was issued to the petitioner and the Sales Tax Officer, vide his order dated 19th August, 1975, corrected the assessment order dated 29th January, 1975, by determining the tax payable by the petitioner in respect of its turnover of pumping sets as Rs. 2,412.66 instead of Rs. 1.206.32 calculated at the rate of 6 per cent instead of 3 percent. Being aggrieved by the order of the Sales Tax Officer the petitioner went up in appeal before the Assistant Commissioner (Judicial), Sales Tax, Jhansi and urged that the pumping sets being agricultural implements had rightly been assessed to tax at the rate of 3 per cent. The view of the Sales Tax Officer that the turnover thereof should be taxed at the rate of 6 per cent was clearly erroneous. The Assistant Commissioner repelled the plea raised by the petitioner and pointed out that in the relevant assessment year turnover of the pumping sets had been assessed at 3 per cent treating it as an agricultural implement. According to Section 9 of the Sales Tax (Amendment) Act, 1974, water pumps had always to be considered as a machinery and were always assessable to tax as machinery. He relied upon a decision of this Court in the case of Basant Industries, Agra v. Commissioner of Sales Tax, U.P. 1975 UPTC 88 and held that the Sales Tax Officer has correctly assessed the turnover of pumping sets at the rate of 6 per cent in exercise of his powers under Section 22 of the U. P. Sales Tax Act. In the result he did not find any merit in the appeal and dismissed the same.
(3.) Aggrieved, the petitioner has approached this Court for relief under Article 226 of the Constitution. The learned counsel for the petitioner pleaded inter alia that the Sales Tax Officer had, while assessing the petitioner's turnover of sales of pumping sets during the year 1970-71, rightly assessed the same at the rate of 3 per cent. The view eventually taken by the Sales Tax Officer in the proceedings under Section 22 of the U. P. Sales Tax Act as also that taken by the Assistant Commissioner (Judicial), Sales Tax, in the appeal filed against the order of the Sales Tax Officer that such turnover was taxable at the rate of 6 per cent was erroneous. According to the learned counsel there is nothing in the decision of Basant Industries, Agra v. Commissioner of Sales Tax, U.P. 1975 UPTC 88, which runs counter to his submission that the turnover of sales of pumping sets during the year 1970-71 was correctly assessed at the rate of 3 per cent.;