C. M. LODHA, C. J. - (1.) BY this petition under Art. 226 of the Constitution, the petitioner has challenged the validity of the notices issued by the Assistant Commercial Taxes Officer, C-Ward, Hanumangarh, District Sri Ganganagar, marked Annexures 3, 4 and 6, to show cause as to why penalty be not imposed on the petitioner under sec. 10-A, and also as to why the petitioner be not prosecuted for offences under secs. 10 (b) and 10 (d) of the Central Sales-Tax Act, 1956, (hereinafter to be referred to as the Act ). Notice Annexure 3 is in respect of years 1970-71 to 1973-74 and also in respect of years 1968-69 and 1969-70; notice Annexure 4 is in respect of the years 1970-71 to 1972-73; and Annexure 6 is in respect of the years 1973-74. The assessee submitted reply to the first two notices, a copy of which has also been placed on the record and marked as Annexure 5, but before the Assistant Commercial Taxes Officer decided the matter, the assessee has approached this Court for striking down the notices.
(2.) SHRI S. C. Bhandari, learned counsel for the Sales Tax Department, has raised a preliminary objection that the writ petition is premature inasmuch as the petitioner has approached this court without obtaining a decision from the Assistant Commercial Taxes Officer with regard to the objections raised by him to the impugned notices. He has also urged that so far as the challenge to the vires of secs. 10 and 10a of the Act is concerned, the matter has been set at rest by their Lordships of the Supreme Court in Commissioner of Sales-Tax, Madhya Pradesh vs. Radha Kishan (l), wherein all the previous cases bearing on the subject have been reviewed. In that case the provisions of secs. 22 (4a) and 46 (l) (c) of the Madhya Pradesh General Sales Tax Act, 1958, entitling the Commissioner to pursue two different procedures for realisation of the assessment were challenged as constitutionally invalid on the ground that the Commissioner was at liberty to choose only one of the two remedies and that one was harshar than the other and no guidance had been provided to the Commissioner as to which of the procedures he should adopt in a given case. It was held that the discretion is given to the Commissioner to resort to one of the two remedies as the facts of the case may require. In graver cases he will be justified in taking the drastic remedy and resorting to prosecution in the criminal court if he is satisfied that such a course is necessary for the collection of the tax expeditiously. If the discretion is not properly exercised, the court may be justified in interfering in such cases but the law cannot be held to be invalid. Thus construed, the validity of the section cannot be questioned. We may add that so far as the Central Sales-Tax Act is concerned, there is a further safeguard provided in the Act, namely, section 11, which provides that "no Court shall take cognizance of any offence punishable under this Act or the rules made thereunder except with the previous sanction of the Government within the local limits of whose jurisdiction the offence has been committed or of such officer of that Government as it may, by general or special order, specify in this behalf, and no Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any such offence. " In this connection, we may also refer to T. S. Ralish vs. T. S. Rangachari, Income-Tax Officer, Central Circle VI, Madras, (2), wherein while considering the provisions of section 52 of the Income-Tax Act, 1922, re'ating to offences punishable under two or more enactments, their Lordships of the Supreme Court were pleased to repel the contention raised on behalf of the assessee that the choice of the prosecution was left to the arbitrary or unguid-ed discrection of the Income-Tax Officer and therefore there was a violation of the guarantee under Article 14 of the Constitution, and it was observed that the offence provided for in section 52 of the Income-Tax Act of 1922 is an offence specially constituted and the prosecution for that offence requires the sanction of the Inspecting Assistant Commissioner. We may also point out that no prosecution can take place if the penalty has been imposed under sec. 10-A, of the Act. We are of opinion that the inslitution of a complaint under sec. 11 of the Act is, therefore, circumscribed by adequate safe-guards and we do not consider that there is any violation of the guarantee under Article 14 of the Constitution. Apart from the above-mentioned objection regarding the vires of sections 10 and 10-A of the Act, the. assessee has raised a number of other objections but these objections can be very well pressed by the petitioner before the Assistant Commercial Taxes Officer and it would not be proper for us to deal with them in exercise of our writ jurisdiction at this stage,when the Assis-tant Commercial Taxes Officer, is properly seized. Shri Lekh Raj Mehta counsel for the petitioner, has urged that certain matters raised by him in the writ petition have been clarified in the reply filed on behalf of the Assistant Commercial Taxes Officer to the writ petition in this Court. It is not necessary for us to make any observation regarding this contention. The petitioner may make such use of the counter filed to the writ petition as may be open to him in law. The writ petition is, therefore, dismissed. However, in the circumstances of the case, we make no order as to costs. . ;