Gangeshwar Ltd. vs State of U.P. and Others

R.A. Sharma, J.—By this writ petition, petitioner has challenged the order dated 22.3.1991, passed by the Assistant Commissioner (Assessment), Sales Tax, Saharanpur, imposing sales tax on gunny bags used by it in packing of sugar for the purpose of its storage and sale.

Learned Counsel for the petitioner has stated that the controversy involved in this petition has already been decided by Lucknow Bench of this Court in Oudh Sugar Mills Ltd. v. State of U.P. and Ors. reported in 1995 UPTC 723. Writ Petition No. 3270 (MB) of 1992, decided on March 22, 1995, a copy of which has been placed before us. Learned Standing Counsel has, however, stated that the controversy involved in the instant case is not covered by the decision in the case of Oudh Sugar Mills Ltd. v. State of U.P. and Ors. (supra). In this connection it has been contended by him that as in the instant case a finding of implied contract of sales of gunny bags with sugar has been recorded, no exception can be taken to the impugned order.

It is true that a finding to that effect has been recorded by the Assessing Officer, but it is based on assumption that the price of gunny bags is included in the price of the sugar. It is a question of fact and has to be decided on the basis of the material on record. Such an assumption cannot be warranted, because the price of the sugar is fixed by the Central Government in exercise of statutory power. There is nothing on the record to show that while fixing the price of sugar, price of gunny bags was also taken into consideration. The instant case is fully covered by the decision in the case of Oudh Sugar Mills Ltd. v. State of U. P. and Ors. (supra).

Learned Standing Counsel has also raised a preliminary objection to the effect that against the impugned order, there is alternative remedy of appeal. It is true that alternative remedy of appeal was available to the petitioner but this writ petition cannot be dismissed on the ground for three reasons, namely, (i) this objection should have been raised at the threshold when the writ petition was filed in 1991. When counter and rejoinder affidavits have been exchanged between the parties and the case is ready for admission hearing, such an objection cannot be entertained at this stage. Reference in this connection may be made to the case of L. Hirday Narain Vs. Income Tax Officer, Bareilly, ; (ii) when large number of writ petitions against the identical orders have been entertained by this Court, there will be no justification to reject this writ petition on the ground of alternative remedy; and (iii) when Division Bench has already decided the controversy involved in the instant case in Oudh Sugar Mills Ltd. v. State of U.P. and Ors. (supra) it will not be proper to relegate the petitioner to alternative forum instead of deciding this case in terms of the judgment of the said case.

For the reasons given above, this writ petition has to be disposed of in terms of the Judgment in Mis Oudh Sugar Mills Ltd. v. State of U.P. and Ors. (supra). We accordingly quash the assessment orders dated 22.3.1991 (Annexures-7 and 8 to the writ petition) and direct the Assessing Authority to consider the question of exigibility of gunny bags to trade tax afresh after taking into account the facts and circumstances of the instant case as well as the relevant laws and the considerations as laid down in the said case of Mis Oudh Sugar Mills Ltd. v. State of U.P. and Ors.