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Judgment
Alok Singh, J.—Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India assailing the assessment order dated 16.04.2014 passed by Deputy Commissioner (Assessment) Commercial Tax, Dehradun.
Mr. Bharat Ji Agarwal, learned Senior Counsel appearing for the petitioner, submits that petitioner supplies various items to the customers directly and no dealer is involved between the petitioner company and the customer; invoice generated by the software system of the petitioner company although indicates total amount (including the cost of items and tax thereon), however, the moment invoice is punched Sales Day Book indicates the cost of items as well as the amount of tax thereon.
Learned Senior Counsel further contends that tax can be levied only on the cost of the items excluding the amount of tax, which is duly reflected in the Sales Day Book.
Mr. Bharat Ji Agrawal, learned Senior Counsel has placed reliance on the judgment of the Allahabad High Court in the case of M/s. Tata Timken Limited, Noida vs. Commissioner Trade Tax, reported in 1999 UPTC page 685 wherein learned Single Judge of Allahabad High Court has observed that "turnover" does not include the tax separately charged and "turnover" is gross price of the item sold, if amount of tax is separately charged as shown in the Sales Day Book, it has to be excluded from the price.
Mr. S.S. Chauhan, learned Deputy Advocate General appearing for the State contends that since statutory appeal is available to the petitioner challenging the assessment order, in question, wherein petitioner may raise all these legal points, therefore, this Court should not entertain this writ petition at this stage leaving the petitioner to avail alternative remedy available to him under the Law.
Present petition, thus, stands disposed of with direction that petitioner may file statutory appeal before the Appellate Authority within four weeks from today. If such an appeal is filed within four weeks from today, the same shall not be dismissed on the ground of limitation. Appellate Authority shall make every endeavor to decide the appeal, at its own merit, in accordance with law preferably within 90 days from the date appeal is filed. While deciding the appeal, the Appellate Authority shall take into consideration all the legal points raised in the present writ petition and shall deal with all the legal points, so raised.
In the peculiar facts and circumstances of the case, I direct that for next 120 days or till the decision of the appeal, whichever is earlier, petitioner shall not be insisted to deposit the disputed amount of tax.
CLMA No. 7744 of 2014 also stands disposed of.