M. B. SHARMA, J. - (1.) IN both the above writ petitions identical questions have come up for adjudication and therefore they are being disposed of by this common order.
(2.) D. B. Civil Writ Petition No. 687 of 1991 is by M/s. P. N. Dhoot Investment Company Pvt. Ltd. , Jaipur (for short, "the investment company') through its director, Shri V. N. Dhoot. The investment company is manufacturing washing machines of household at its Aurangabad factory. D. B. Civil Writ Petition No. 970 of 1991 is by M/s. Dome Bell Investment Pvt. Ltd. (for short, "the company") through one of its directors Shri P. N. Dhoot. The company is manufacturing colour television sets at Noida factory. The investment company as well as the company are transferring the manufactured products to different branches situated in different States which are its selling points and such branches are registered in their respective States in sales tax laws as well as the Central Sales Tax Act, 1956 (for short, "the Central Act" ). So far as the investment company as well as the company are concerned, they are also registered under the Rajasthan Sales Tax Act, 1954 (for short, "the State Act" ). There is another concern, namely, Videocon International Limited (for short, "the VIL" ). The investment company receives the washing machines from its factory situated at Aurangabad, octroi is paid by it, the machines are kept in the godown taken by the VIL and all machines are alleged to have been first sold to the VIL and sales tax is paid on the turnover of the investment company. The VIL in its turn sells the washing machines at a much higher price. Similarly, the company is manufacturing colour television sets at its Noida factory and at its Jaipur branch, the company has no godown of itr, own which is taken on rent by VIL. It is the VIL which thereafter further sells the television sets and the company pays sales tax on the turnover which it receives after sale to the VIL. The Commercial Taxes Officer, Anti-evasion, Headquarters-II, Jaipur, raided the business promises of the investment company as well as the company on November 5, 1990 and noticed that sales have been made by both of them to the VIL. On physical verification, it was found that the stock of washing machines and television sets with the investment company and the company was not in accordance with the stock register and it was disclosed on behalf of the investment company and the company by the persons present that the stock was not available as per record because the washing machines and television sets numbering 87 and 508, respectively, have been sold to the VIL in the month of October, 1990. It was also disclosed that challans and bills had not yet been issued. It was also disclosed during the sudden inspection of the business premises that business premises were on rent with the VIL and so far as the investment company and the company are concerned, the premises were not on rent with either of them. It was also noticed that the investment company and the company have no separate rooms to keep the stock. The Commercial Taxes Officer, Antievasion, Headquarter II also noticed that the sales tax was paid only on the documents of transfer of goods and even the octroi, freight and other expenses are not incurred. The Commercial Taxes Officer was also of the opinion that the delivery of goods received from the factories at Aurangabad and Noida is taken by the VIL. He being satisfied that the investment company and the company, the two dealers, with a view to avoid payment of tax have shown in their account books sale of washing machines and television sets at a price lower than their prevailing market price, a notice was issued under sub-section (4-A) of section 10 of the State Act to the investment company and the company. Reply was filed and after considering the reply and not being satisfied with it, the Commercial Taxes Officer, Anti-evasion, under his two separate orders dated November 20, 1990, framed best judgment assessment under section 7-B read with sub-section (4-A) of section 10 of the State Act for a period from April 1, 1990 to November 4, 1990. So far as the investment company is concerned, the assessing authority came to the conclusion that it evaded the tax on the payment of Rs. 14,25,386. The investment company was ordered to pay Rs. 46,131. 75 + Rs. 1,71,046 = Rs. 2,17,177. 75. It was also ordered that the investment company shall pay penalty under section 16 (1) amounting to Rs. 2,56,500 and interest under section 11-B (1) (f) of Rs. 11,305, the total amount which was payable by the investment company was Rs. 4,85,482. 75. So far as the company is concerned, the assessing authority came to the conclusion that with a view to avoid the payment of tax it has shown in its account books sale of television sets at a price lower than the prevailing market price and taking into consideration the price charged by the VIL, the assessing authority came to the conclusion that it was the prevailing market price and therefore the difference in the price charged by the company and the VIL, i. e. , Rs. 76,28,171. 20 was held to be the amount on which the company evaded the tax and it was called upon to pay the tax and penalty, etc. , amounting to Rs. 23,61,417. The investment company and the company challenged the aforesaid orders of the Commercial Taxes Officer, Anti-evasion, Headquarter-II, Jaipur, on the following grounds : (i) The orders are without jurisdiction because of the plurality of the assessing authorities and the notification conferring jurisdiction on the Commercial Taxes Officer, Anti-evasion, Headquarter-II, is without jurisdiction; (ii) the provisions of sub-section (4a) of section 10 of the State Act and rule 30a of the Rajasthan Sales Tax Rules (for short, "the Rules, 1955") are ultra vires, or in the alternative, even if the provisions are valid, they have not been validly applied; (iii) the decision of the Additional Commissioner made under sub-section (3) of section 11 of the State Act is arbitrary and against the principles of natural justice; (iv) in the facts and circumstances of the case, the penalty provisions of the State Act could not he invoked. Notice of each of the writ petitions was given to the respondents and though Mr. G. S. Bapna, learned counsel for the respondents, has not chosen to file any reply to the show cause notice, but he has raised submissions and he has also raised preliminary objections that there is an alternative remedy by way of appeal and therefore this Court should not invoke its extraordinary writ jurisdiction under article 226 of the Constitution of India. We may at the very outset say that when the jurisdiction of any authority is challenged and/or there is challenge to the statutory provisions of a statute this Court cannot and does not decline to invoke its extraordinary writ jurisdiction under article 226 of the Constitution. Even otherwise in such cases where there may be an alternative remedy available to a person, such remedy may be by way of filing appeal or revision, it cannot be said that in such a case there is absolute bar to the exercise of powers of this Court under article 226 of the Constitution of India. Though, generally, more so, in taxation matters, this Court refuses to invoke its extraordinary writ jurisdiction in case there is an alternative remedy provided under the statute, but in this case as will appear from points which have been urged before us and reference to which has already been made in the earlier part of this order, the jurisdiction of the Commercial Taxes Officer, Anti-evasion, Headquarter-II, Jaipur, has not only been challenged, but the petitioners, in both the cases have also raised a challenge to the vires of sub-section (4-A) of section 10 of the State Act as well as rule 30-A of the Rules. Therefore, we may examine the challenge though, if the aforesaid challenge does not survive, so far as the facts of the case are concerned, we will decline to go into them and the investment company as well as the company will have to agitate the matter in appeal, etc. , which may he prescribed under the State Act.
(3.) THE Notification dated July 3, 1986, as amended vide Notifications dated July 21, 1988 and June 2, 1989 reads as under : * * * Under the aforesaid notification the Commercial Taxes Officer, Antievasion, Headquarter-I, Commercial Taxes Officer, Anti-evasion Head-quarter-II, and Commercial Taxes Officer, Anti-evasion, Headquarter-III, Jaipur, have been conferred jurisdiction for whole of the Rajasthan and the circles created are Anti-evasion I, Headquarters, Jaipur, Anti-evasion II, Headquarters, Jaipur and Anti-evasion III, Headquarters, Jaipur. It was contended by Mr. V. K. Singhal, learned counsel for the petitioners, that the Commissioner, Commercial Taxes, after having appointed more than one Commercial Taxes Officer, Anti-evasion, under rule 3 of the Rules, as required by rule 4 of the Rules must have distributed business among them. He further contends that under rule 4, whole or part of the State could not be the circle. According to the learned counsel, there cannot be plurality of assessing authorities under rule 3 read with rule 4 of the Rules and under the scheme of the Rules such a situation is not envisaged. Mr. G. S. Bapna, learned counsel for the respondents, contended that there can be no bar to appoint more than one assessing authority for an area and whosoever detects evasion among three Commercial Taxes Officers, Anti-evasion, will have jurisdiction to the exclusion not only of other Commercial Taxes Officers, Anti-evasion, but to the exclusion of Commercial Taxes Officer, Special Circle, if any and also Commercial Taxes Officer, if any. Section 12-B of the State Act reads as under : " 12-B. Dispute regarding jurisdiction.- No person shall be entitled to call in question the territorial jurisdiction of any assessing authority or appellate authority after the expiry of thirty days from the date of receipt by such person of any summons or notice under the Act issued by such authority or, in case the summons or notice was issued prior to the commencement of the Rajasthan Sales Tax (Amendment and Validation) Ordinance, 1967, (Rajasthan Ordinance 2 of 1967), after the expiry of, thirty days from the commencement of the said Ordinance. If within the period aforesaid an objection is raised as to the territorial jurisdiction of any such authority by submitting a memorandum to has the authority concerned shall if satisfied with the correctness of the dispute, refer the question to the Commissioner, who shall, after giving the person raising the objection a reasonable opportunity of being beard, make an order determining the question. The order made by the Commissioner shall be final. " A bare reading of the aforesaid section 12-B will show that so far as objection to the territorial jurisdiction of any authority is concerned, a person can raise an objection within 30 days of the receipt by him of any summons or notice under the State Act from such authority and if within the aforesaid period of 30 days no such objection is raised, then after the expiry of 30 days, he cannot raise such an objection in respect of territorial jurisdiction of the assessing authority. If within the period of 30 days any objection is raised as to the territorial jurisdiction of the assessing authority by submitting a memorandum to him, the assessing authority concerned shall refer the question to the Commissioner, who shall after giving the person raising such objection a reasonable opportunity of being heard, make an order determining the said question and the order made by the Commissioner shall be final. Section 12-B was inserted vide section 2 of the Rajasthan Act No. 1 of 1968. Thus, the objection having not been raised as aforesaid by the investment company and the company, as to the jurisdiction of the assessing authority, it cannot be allowed to be raised now. That apart, in our opinion this point has no force, firstly because there is no challenge to the vires of section 12-A of the State Act and secondly because even otherwise there is no merit in this submission. We may now refer to the Notification No. F. 3 (a) (28)Tax/cct/67/130 dated October 23, 1967 and the said notification reads as under : " In pursuance of rule 3 of the Rajasthan Sales Tax Rules, 1955 and in supersession of all previous notifications or orders issued in this behalf, I, Ram Singh, Commissioner of Commercial Taxes, Rajasthan hereby fix the areas shown in column 3 of the Schedule below as the areas of jurisdiction of the Commercial Taxes Officers mentioned in column 2 of the said Schedule. These areas shall be called the circles of these Commercial Tax Officers and named as in column 4 of the Schedule. 2. In pursuance of rule 4 of the said Rules it is also hereby directed that - (i) The Commercial Taxes Officers, Special Circles, shall have jurisdiction over the following category of dealers, namely : All manufacturers, importers and other dealers whose turnover in the previous year relevant to the assessment year 1979-80 were not less than the following amount : ---------------------------------------------------------------------- S. No. Category of dealers Amount of turnover ---------------------------------------------------------------------- 1. Manufacturers. Rs. 30 lacs 2. Importers. Rs. 50 lacs 3. Other dealers Rs. 1 crore ---------------------------------------------------------------------- Provided that the Commercial Taxes Officers, Special Circles, shall exercise jurisdiction subject to the provisions of clause (ii) below. (ii) The Commercial Taxes Officers, Anti-evasion Circles, Bikaner, Jaipur, Jodhpur, Kota, Udaipur and Headquarters Circles, Jaipur, shall have jurisdiction over dealers in whose case any evasion of tax or concealment of liability to tax has been detected by him or by any officer not below the rank of Commercial Taxes Inspector of his Circle in respect of the dealer's years of accounts to which such evasion or concealment relates. (iia) The Commercial Taxes Officer, Special Investigation Circle, Jaipur, shall have jurisdiction over the dealers whose cases have been transferred to him by the Commissioner under rule 52 of the said Rules. (iib) The Commercial Taxes Officers, Areas Circle, shall have jurisdiction over the dealers whose cases are transferred to them by the Commissioner under rule 52 of the said Rules. (iii) The other Commercial Taxes Officers shall have jurisdiction in their respective areas of jurisdiction subject to the provisions of clauses (i) and (ii) above. " With the view which we will take, it is not necessary for us to examine the legality or validity of the aforesaid notifications dated July 3, 1986, as amended vide notifications dated July 21, 1988 and June 2, 1989 or the notification dated October 23, 1967 extracted above, in detail and suffice it to say that prima facie to us it does not appear that the aforesaid notifications are beyond the powers conferred on the Commissioner, Commercial Taxes, under rule 3 or 4 of the Rules. Under rule 3 (1), the Commercial Taxes Officer for the area within his jurisdiction as fixed by the Commissioner shall be the assessing authority for that area and such area shall be called his "circle". Under sub-rule (2) the jurisdiction of an assessing authority shall be determined with reference to the place of business of the dealer. If a dealer carries on business within the limits of the jurisdiction of more than one assessing authority, the assessing authority within whose jurisdiction, the principal place of business is situated, shall be assessing authority in respect of such dealer. Under explanation to sub-rule (2) where the dealer has declared a place to be his principal place of business in writing that place shall ordinarily be regarded as his principal the place of business. Whenever there is doubt in respect of jurisdiction of the assessing authority, it is the Commissioner who shall determine which assessing authority shall have the jurisdiction over the dealer and his decision shall be final. Under rule 4 where there are more than one Commercial Taxes Officers in a Circle, their respective jurisdiction and the distribution of business amongst them shall be such as may be fixed by the Commissioner. It is in exercise of the aforesaid powers above notifications were issued by the Commissioner, Commercial Taxes. A bare reading of Notification dated October 23, 1967, as amended from time to time will show that its second paragraph gives direction that the Commercial Taxes Officers, Anti-evasion Circle, Jaipur and Kota shall have jurisdiction over dealers in whose case any evasion of tax or concealment of liability has been detected by him or by any officer not below the rank of Commercial Taxes Officer of his circle, in respect of dealer's year of account to which sue evasion or concealment relates. The first clause relates to the jurisdiction of the Commercial Taxes Officers, Special Circle and there is a proviso that such Commercial Taxes Officers shall exercise jurisdiction subject to the provisions of clause (ii ). The third clause of the said paragraph says that "the other Commercial Taxes Officers shall have jurisdiction in their respective areas of jurisdiction subject to the provisions of clauses (i) and (ii) above". A bare reading of the aforesaid paragraph 2 along with its above referred clauses of the notification will show that the Scheme of the notification is very clear and the Anti-evasion Officers acquire jurisdiction when evasion of tax or concealment of liability is detected. Subject to this, the officers of the Special Circles have jurisdiction over a specified category of dealers. Subject to both cases, the other Commercial Taxes Officers, have jurisdiction over the residuary field of business. It cannot be said that so far as dealers whose evasion has been detected by any of the three Commercial Taxes Officers, there is plurality of assessing authorities because it is only that Commercial Taxes Officer out of three referred to earlier, who has detected evasion, will he having jurisdiction to assess. ;