YADAV, J. - (1.) THE petitioner has filed the instant writ petition seeking a relief for quashing the order of assessment Anx. 26 dated 8. 2. 85 regarding calendar year 1976 and Anx. 27 dated 8. 2. 85 assessment order for calendar year 1977 passed by the Assistant Commercial Taxes Officer, Ward-B, Sri Bijeynagar (respondent No. 4) and also for quashing demand notices of these two years Anx. 28 and 29 to the writ petition. Learned counsel for the petitioner further stated that he has also challenged Anx. 19 to the writ petition which is about creation of liability and imposition of penalty.
(2.) IT is true that the petitioner has filed the present writ petition against the assessment orders Anx. 26 and 27 and also against the demand notices Anx. 28 and 29 to the writ petition alongwith Anx. 19 creating liability and imposition of penalty. I have heard the learned counsel for the parties at length. Learned counsel for the petitioner invited my attention towards the definition of sale given u/s. 2 (o) alongwith the mandatory provisions contained u/s. 2 (u) of the Rajasthan Sales Tax Act, 1954 (in short 'the Act of 1954' ). In support of his aforesaid argument he placed reliance on a decision reported in 1977 (2) SCC, 847 (1 ). He invited my attention towards paras 7, 28 and 29 of the aforesaid decision rendered by the Apex Court. In para 7 of the aforesaid judgment their lordships has clearly ruled that the question whether a contract is one for sale of goods or for executing works or rendering services, is largely one of fact, depending upon the terms of the contract, including the nature of the obligations to be discharged thereunder and the surrounding circumstances. It is therefore necessary to examine the terms and conditions of the contract in question. Learned counsel for the petitioner has invited my attention towards Anx. 2 and 4 for proving the terms and conditions of the contract entered into between the petitioner and the Executive Engineer, PWD/b&r, RCP, Works Division, Suratgarh.
(3.) IN my humble opinion the disputed question of fact based on a construction of contract cannot be raised before this Court in writ jurisdiction. As a matter of fact this disputed question of fact is required to be raised before the first appellate court,before the second appellate court as well as before this Court u/s. 15 of the Act of 1954 by way of filing revision. Learned counsel for the respondents raised a preliminary objection to the maintainability of the writ petition as according to him the orders impugned in the present writ petition are appealable u/s. 13 of the Act of 1954. Thus according to the learned counsel for the respondents the petitioner has an alternative remedy under the Act of 1954. According to learned counsel for the respondents against the order passed by the first appellate authority u/s. 14 of the Act of 1954, a second appeal is provided before the Rajasthan Sales Tax Tribunal and then thereafter if the petitioner was not satisfied from the order passed by the Assessing Authority by the first appellate authority as well as by the Tribunal then a statutory remedy by way of revision is available to the petitioner. Instead of approaching the appropriate forum prescribed under the Act of 1954 the petitioner deliberately and wilfully approach this Court by way of filing present petition. ;