Arun Madan, J. - (1.) THIS second appeal has been preferred by the appellants against the judgment and decree dated 12th January, 1982 passed by Additional Distt. Judge No. 2, Jaipur City, Jaipur, in Civil Appeal No. 211 of 1977 whereby he partially confirmed the decree dated 3 -5 -1977 passed by Additional Civil Judge, Jaipur City, Jaipur in Civil Suit No. 46/1976 for declaration, injunction and damages.
(2.) FACTS giving rise to the filing of this appeal, briefly stated, are that plaintiff -respondent No. 1 M/s. Jaipur Hosiery Mills Pvt. Ltd. was assessed to Sales Tax by the Commercial Tax Officer, Special Circle -11, Jaipur (for short C.T.O.). The assessment orders for the years 1963 -64 to 1967 -68 were passed on 5 -9 -1972 vide Exs. 41 to 45 on the record. The respondent did not challenge the assessment orders passed by the C.T.O. in appeal or revision nor it took any appropriate proceedings within the Rajasthan Sales Tax Act but instead filed a regular suit in the Court of Civil Judge, Jaipur, City, Jaipur challenging the legality of the assessments orders on various grounds. The grievance of the respondent was that the assessment orders have been passed in violation of provisions of Sales Tax Act and in defiance of stay order passed by a higher tax Authority. The respondent also alleged that since he was not a hosier, the order of C.T.O. to the effect that he was a hosier, was illegal and further no assessment proceedings could be initiated and finalised against the respondent. The total tax liability of the respondent as revealed from the assessment orders which were challenged in the suit before learned Civil Judge, was Rs. 1,28,537/ - which the respondent alleged as void and illegal and sought stay of the recovery from the Civil Court. The respondent claimed a sum of Rs.5000/ - on account of damages. The above suit was contested before the trial Court by the appellant State defendant mainly on the ground that the assessment orders were passed in a perfect legal manner and in bona fide exercise of the powers under the Rajasthan Sales Tax Act by the Assessing Authority. The State of Rajasthan disputed the jurisdiction of the Civil Court to entertain the aforesaid suit as the Rajasthan Sales Tax Act provides a complete machinery for determination of all the questions relating to the liability, assessment etc. and Section 19 of the Rajasthan Sales Tax Act (for short the "Act") specifically bars the jurisdiction of Civil Court to entertain such suits. The suit was also contested on the ground that no notice under Section 80, C. P.C. was served on the appellants prior to the filing of the suit and hence the relief of declaration against the assessment orders was not tenable for want of valid notice.
(3.) ON the pleadings of the parties, learned trial Court framed the following issues : - 1. Whether the plaintiff is not hosier and its main business on and after 1961, has been to manufacture knitted cloth and tailor knitted cloth into garments like Baniyan, Sweaters, Shirts and Jersees etc. ? P. 2. Whether the plaintiff is not liable for Sales Tax in dispute because of exemption certificate dated 12 -11 -1962 and its subsequent renewals from 1963 to 1968? P. 3. Whether the plaintiff is not liable to pay the Sales Tax in dispute under the provision of Section 12 of the Rajasthan Sales Tax Act? P. 4. Whether the assessment orders dated 5 -9 -1975 are nullity and inoperative in law? P. 4. WHETHER the orders dated 5 -9 -1972 are mala fide on the part of defendant No. 2 and what is its effect -on the suit? P. Whether the tax imposed on the plaintiff in pursuance of the orders dated 28 -10 -1970 or 5 -9 -1972 is in violation of Article 276 of the Constitution of India ? P. 5. WHETHER the plaintiff is entitled to the damages as claimed in the suit ? P. 6. WHETHER the notice given by the plaintiff under Section 80, C.P.C. is invalid in eye of law ? P. Whether this Court has got no jurisdiction to prohibit the defendants from effecting the recovery or demand by virtue of assessment order? D. 7. WHETHER the suit is beyond limitation ? D. 8. WHETHER the suit is not maintainable against the defendants No. 2 ? D. Whether the Court fees paid is insufficient ? D. 9. WHETHER the suit is barred under the provisions of the Rajasthan Sales Tax Act and Rules made thereunder and in view of para No. 5 of the Addl. pleas of the written statement? D. 10. WHETHER the defendant No. 2 is entitled to a special cost amounting to Rs.5000/ -? P. Relief? -. Learned trial Court after recording the evidence of the parties and perusing the documentary evidence decreed the suit of the plaintiff. Learned trial Judge, however, declined the relief of damages as claimed by the plaintiff. Aggrieved by the judgment and decree passed by the trial Court, the State of Rajasthan preferred an appeal before learned District Judge, Jaipur City, Jaipur which came to be heard and finally decided by Addl. District Judge No. 2, Jaipur City, Jaipur vide order dated 12 -1 -1982 which is impugned in this second appeal. The first appellate Court confirmed the findings of the Civil Judge, on all the issues by recording a specific finding to the effect that the appellants were not entitled to effect the recovery of Sales Tax vide assessment orders passed by the C.T.O. for the period 1963 -64 to 1967 -68, since hosiery products of the respondent were exempted from taxation under the Act and, therefore, the appellant was not entitled to effect the recovery of tax against the said items. However, learned first appellate Court declined the relief of recovery of damages which the respondent had claimed against the appellant. Aggrieved by the order of first appellate Court dated 12 -1 -1982 the appellants, State of Rajasthan and others have preferred this second appeal before this Court. The appeal was admitted for hearing on 22 -7 -1985 and the following substantial questions were framed : - - 1. Whether a suit to question the assessments made under the Rajasthan Sales Tax Act, 1954 and the rules framed thereunder of plaintiff -respondent in respect of accounting years 1963 -64 to 1967 -68 was competent despite express bar to such proceedings contained in Section 19 of the Act and the existence or adequate remedy provided in the Act in the form of appeal (Section 13), revision (Section 14(2) special appeal (Section 14(4 -A) and reference (Section 15) and whether the Civil Court had jurisdiction to entertain such suit ? 2. Whether Section 12 of the Act applies in a case where the appellate authority (Deputy Commissioner Appeals) sets aside the assessment made under Section 10 and remands the case to the assessing authority to pass a fresh order after considering the matter in the light of the observations of the Supreme Court ? ;