- (1.) D. S. Sinha, J. The petitioner carries on the business of buying, selling, sup plying and/or distributing motor spirit and diesel oil. It prays, interalia, for issuance of a writ, order or direction in the nature of mandamus directing the respondents not to demand tat on the diesel oil supplied to and sold by it.
(2.) SECTION 3 (1) (b) of the United Provinces Sales of Motor Spirit, Diesel Oil and Alcohol Taxation Act, 1939, hereinafter called the Act' provides that there shall be levied on the first sale of Diesel Oil in the State, a tax at the rate of sixteen per cent ad valorem, and such tax shall be payable to the State Government in the prescribed manner by the dealer effecting such sale. "diesel Oil" is defined in Section 2 (aa) of the Act to mean any inflammable hydrocarbon (including any mixture of hydrocarbons or any liquid containing hydrocarbon) with a flash point above 130f but not above 110f which is ordinarily used for providing reasonable efficient motive power for any form of motor vehicle or for internal combustion engines. The petitioner asserts that flash point of the diesel oil supplied to and sold by it is less than 130f. It is, therefore, not taxable as diesel oil under the Act. This fact has been denied by the respondents in their counter affidavit.
(3.) THE question as to what is flash point of the diesel oil supplied to and sold by the petitioner is basically a question of fact. Normally, this Court does not inves tigate the questions of fact. THE question about flash point raised by the petitioner can appropriately be gone into in the assessment proceedings under the Act, as and when initiated. Further, it is not disputed that the first point of the sale of the diesel is the point when Bharat Petroleum Corporation Limited, Panki Despatch Unit, Kanpur Nagar, the respondent No. 5, sells diesel to the petitioner. Therefore, the respondent No. 5, not the petitioner, becomes liable to pay tax under the Act. And the respon dent No. 5 is not challenging the levy of tax. Thus, the petitioner has no locus standi to challenge the levy of the tax. No doubt, the respondent No. 5 recovers tax from the petitioner under an agreement between it and the petitioner. But, the mere fact that the respondent No. 5 recovers the tax payable by it under the Act from the petitioner, under an agreement, is not sufficient to clothe the petitioner with legally cognizable and judically enforceable right to challenge the levy of tax on the first sale of diesel oil under clause (b) of sub-section (1) of Section 3 of the Act. 6. In the result, the petition fails and it is dismissed. Petition dismissed. .;