KESHOTE, J. - (1.) HEARD learned counsel for the petitioner and perused the entire record of the writ petition.
(2.) IN the writ petition the petitioner has prayed for grant of following relief, " (i) Declare the provisions of Section 84 (3) of the Rajasthan Sales Tax Act, 1994 that provides 10% of deposit of tax and other amount for entertainment of appeal as ultra vires of the Constitution. (ii) Declare the action of respondent No. 5 in assumption of jurisdiction as illegal, arbitrary and further hold that the respondent No. 5 have no jurisdiction to pass assessment order in the matter; (iii) Declare the order passed by the respondent No. 4 as totally arbitrary and without considering the provisions of law. (iv) Quash/set aside the assessment orders passed by the respondent No. 5 i. e. ANNEXURES 3, 4 and 5. (v) Such further relief for which the petitioners are entitled under the circumstances may also be awarded including cost of petition. " The facts of the case as stated in the writ petition are that the respondent No. 5 conducted the survey on 17th of July, 2003 of the petitioner establishment and the issued notices proposing leavy of tax on stock transfers made by the petitioner for the assessment years 2001-02, 2002-03 and 2003-04. The petitioner submitted the reply to the notice on 17th of February, 2004. The respondent No. 5 fixed the case for examination/investigation of reply on 21st of February, 2004. Ex parte orders are alleged to have been passed without considering the reply and documentary evidence produced by the petitioner, by the respondent No. 5. The petitioner submits that as per Section 3 of the Central Sales Tax Act there should be contract of sale prior to the movement of the goods and each and every transaction is to be examined. Without applying the said provisions and without bringing on record the evidences, proving inter-State sale, the respondent No. 5 passed the orders on 21st of February, 2004/28th of February, 2004 raising the sales tax demand. The copy of these assessment orders are submitted on the record as Annexure Nos. 3, 4 and 5 enclosed to the writ petition. The petitioner appears to have filed application for recalling of the assessment orders aforesaid which are stated to have been passed ex parte. But that application has been rejected by the respondent No. 4 under the order dated 1st of April, 2004 which is on the record as Annexure-6.
(3.) THE petitioner filed appeals against the said assessment orders but it is submitted that the same cannot be entertained because of the provisions of Section 84 (3) of the Rajasthan Sales Tax Act, 1994 mandating deposit of 10% of the disputed amount. Thus this writ petition has been filed and therein challenge has been made to the aforesaid provision and the prayers have also been made for setting aside of the sales tax assessment orders Annexure Nos. 3, 4 and 5. The learned counsel for the petitioner does not dispute and in fact it is an admitted case of the petitioner that against the sales tax assessment orders Annexure Nos. 3, 4 and 5 the alternative efficacious remedy is available to the petitioner under Section 84 of the Act aforesaid. The learned counsel for the petitioner is in agreement that the appeal lies against the ex parte assessment orders also. The question of jurisdiction of the assessment authority to pass the order, it is not in dispute, can also be raised before the appellate authority. Prima facie, it is difficult to accept that the ex parte order passed by the assessment officer is without jurisdiction. The very object and purpose of filing of this petition on the face of it, is to circumvent the efficacious alternative remedy, a statutory appeal provided under Section 84 of the Act so as to not to pay anything towards the sales tax demand raised under the assessment orders Annexure Nos. 3, 4 and 5 enclosed to the writ petition. ;