Dua, J. - (1.) THIS is a petition under Articles 226 and 227 of the Constitution by firm Jagat Ram Om Parkash challenging Part B of the order passed by the Assessing Authority, Amritsar, dated 29th November, 1961. The impugned part of the order deals with the assessment under the provisions of the Punjab Textile and Sugar (Existing Stocks) Purchase Tax and Miscellaneous Provisions Act (Punjab Act No. 8 of 1958). According to the Petitioner's allegation, as contained in the writ petition, the Petitioner -firm deals with the purchase and sale of textile goods, namely, shawls etc, and is a registered dealer under the Punjab General Sales Tax Act, 1948, holding registration certificate No. AMR -III -1483. On 14th December, 1957. an Ordinance called the Punjab Textiles and Sugar (Existing Stocks) Purchase Tax and Miscellaneous Provisions Ordinance, 1957 (Punjab Ordinance No. 9 of 1957) was promulgated, and on the chargeable goods as defined therein a purchase -tax was levied on textiles. A return under this Ordinance relating to all the goods in stock immediately before its commencement was to be filed within a period of 15 days. This Ordinance was replaced by the Punjab Act No. 8 of 1958 which was enforced from the 18th of April, 1958. In compliance with the Ordinance, on 27th December, 1957, the Petitioner made a request to the Assessing Authority -Respondent to extend the time for filing the return but this request was rejected sometime in the third week of January, 1958. On 28th January, 1958, the return of the existing stocks within the contemplation of the Ordinance was filed and on the basis of this return a sum of Rs. 46 69 N. P. was deposited on 28th March, 1958. According to the petition, this amount represented one -sixth of the two months' average of the tax assessed for the year 1956 -57. It is next averred that no notice, as required by Sub -section (2) of Section 6 of the Ordinance, was ever issued to or received by the Petitioner -firm at any time before the date of the impugned order i. e. 29th November, 1961. The Assessing Authority has created a liability of Rs. 3,206 44 N. P. after deducting the sum of Rs. 46 -69 N. P. already deposited and the last date of the payment of this tax was 4th February, 1962. According to the petition, the entire basis of the impugned order was the late filing of the return and the fact that the amount of tax deposited was short by 3 naye paise. It has been pleaded in para 6 of the writ petition that there are no provisions in Punjab Act No. 8 of 1958 for fixing two dates by which the application for composition has to be made: nor is there any provision fixing the date by which a deposit on the basis of two months' average of the tax assessed should be made. Finally it has been averred in this para that the Assessing Authority did not take into consideration the fact that after 13th December, 1958, he had no power to make an assessment except strictly on the basis of the return filed by the Petitioner.
(2.) IT is then recited that the Petitioner preferred an appeal from the impugned order of the Assessing Authority, as provided by Section 14 of the Act, but such an appeal is not entertainable before the payment of the assessed tax. A notice of demand is stated to have been received by the Petitioner on 5th January, 1962, fixing 4th February, 1962, as the last date of payment. In case the Petitioner failed to pay the amount the same according to the averments is recoverable as arrears of land revenue. The remedy provided by statute is therefore described to be onerous because, though an appeal may be entertained, if sufficient cause for the non -payment of the tax is shown, the amount nevertheless can be recovered as arrears of land revenue. It is in these circumstances that the present petition has been filed and the impugned Part B of the order Annexure A is attacked on the grounds: (a) That no opportunity was granted to the Petitioner under Section 6 of the Act: nor was any notice issued to or received by the Petitioner to attend in person or to produce books of account in support of the return and that the assessment order Could thus not be described to be an order under Section 6(1) of the Act. (b) That after 13th December, 1958, the date mentioned in Section 8 of the Act, the Assessing Authority had no jurisdiction to proceed to assess any dealer who has been under assessed or who may have escaped assessment. The period for this purpose was only one year from the commencement of the Ordinance, as provided by Section 8 thereof, and this period ended on 13th December, l958. (c) That although no limitation is mentioned in Section 6 of the Act, the statutory scheme provides that after 13th December, 1958, no notice can be issued nor any proceedings taken which are of the nature of an assessment, or re -assessment other than an assessment under Section 6(1) of the Act, according to which a return as filed must be accepted to form the basis of the formal order of assessment, and (d) that no proceedings after 13th December, 1958, could be taken by the Assessing Authority with the result that the entire demand is illegal and unwarranted.
(3.) IN the return it has been categorically asserted in para 5 that statutory notice in form 'PIB' was issued to the Petitioner on 6th June, 1958, requiring appearance with account books before the Assessing Authority on 19th June, 1958. Shri Amrit Pathak, legal representative of the Petitioner, actually appeared before the Assessing Authority on the said date and prayed for adjournment. The Petitioner's plea, as contained in para 5 of the writ petition, has in the circumstances been unequivocally controverted and described to be incorrect. In para 6 of the return it has again been categorically stated that the impugned assessment order was passed under Section 6 of Punjab Act No. 8 of 1958 under which no time limit has been prescribed. It has then been pleaded in para 7 that the Appellate Authority is entitled to hear the appeal without prior payment of tax if he is satisfied that the dealer was unable to pay the same and reference for this plea has been made to the proviso to Section 14(2) - of the Act. On feeling aggrieved by the order of the Appellate Authority, the Petitioner could also go up in revision to the Excise and Taxation Commissioner and again to the still higher authority, namely, the Financial Commissioner. There are thus adequate and equally efficacious remedies provided by the statute. In para 8 it has been pleaded that the order sheet pertaining to the assessment year 1957 -58 clearly shows that several opportunities were given to the Petitioner and the assessment order was framed under Section 6 of the Act and not Section 8, as wrongly alleged by the Petitioner. The proceedings are also stated to have commenced on the 6th June, 1958, under Section 6 of the Act, and that no question of limitation could in the circumstances of the case possibly arise. Finally an objection has been raised that the Petitioner should have exhausted the legal remedies provided by the statute before approaching this Court for redress of the alleged grievances.;