Leather Avenues India vs State of Delhi and Another

Dalveer Bhandari, J.—Civil Writ petition Nos. 524 of 2002 and 1450 of 2002 are identical in nature, Therefore, we deem it appropriate to dispose of both these petitions by a common judgment.

In these petitions the petitioners have prayed that the said Notification No. F. 101(48)2000-Fin(A/cs/)/ 120-128 dated 31.3.2001 be quashed.

It is also prayed that the said notification relating to taxability of Duty Entitlement pass Book Scheme be declared ultra virus of the Articles 14, 19 and 21 of the Constitution.

This Court issued show cause notice and during the pendency of the petitions C.M.No. 2500/2002 was filed with a prayer to stay the implementation of Annexure-A writ of demand issued in pursuance of the said Notification Advance copy of this application was given to the learned counsel for the respondents. During the cause of hearing of this application it was pointed out by the learned counsel for the respondents that this very notification was challenged before the Division Bench consisting of Hon''ble Mr. Justice Arijit Pasayat, Chief Justice and Hon''ble Mr. Justice D.K. Jain in C.W.P.No. 3997 of 2001. By a detailed judgment dated 24.7.2001, the Division Bench dismissed the writ petition.

Though only the application was listed today for hearing but by the consent of the parties, we deem it appropriate to dispose of these writ petitions.

6.The Division Bench of this Court in C.W.P.No. 3997 of 2001. Philco Exports v. Sales Tax Officers and Ors., in which the same notification was challenged. The writ petition was dismissed on 24.7.2001 by a detailed judgment. The opening sentence of the judgment is "Challenge in the present writ petition is to notification No. F.10(48)/2001-Fin(A/cs)120-128 (Annexure A), F.10(48)2001-Fin (A/cs)147-15 (Annexure-II) and F.10(48)2001-Fin (A/cs) 156-164 (Annexure-C) all dated 31.3.2001, issued by the order of the Lt.Governor of NCT of Delhi in exercise of powers conferred under the First proviso to Sub-section (1) of Section 4 and Sub-section (2) of Section 7 of the Delhi Sales Tax Act, 1975 (43 of 1975) (in short, the Act), as amended by the Delhi Sales Tax (Amendment) Act, 1997 (Delhi Act No. 1 of 1998) read with the Delhi Sales Tax (Second Amendment) Act, 2000 (Delhi Act No. 2 of 2001) (in short, the second Amendment Act). By the first notification dated 31.3.2001 in the Second Schedule, amendment was made and one entry No. 67 was inserted which reads as "REP, DEPB and other tradable licenses".

Their Lordships further mentioned that the matter is no longer rest integra and decision of the Apex Court in Vikas Sales Corporation v. Commissioner of Commercial Taxes and Anr. (1996) 102 STC 106 is clearly applicable to the facts of the case. The Court after discussing the number of cases and definitions at length dismissed the writ petition. The Court observed "As was observed by the Apex Court in Vikas Sales case (supra), when there is no restriction on the purchase and sale on DEPB freely and it has a value unrelated to the goods there is no scope of their being treated as actionable claim. DEPB for all practical purposes represent merchandise and is treated and dealt with as such in the commercial world. DEPB is neither a chose in action nor an actionable claim. It has a value of its own. It is by itself a property and it is for this reason that it is freely bought and sold in the market. Fro all purposes and intents, it is goods. That being the position we find no substance in the plea taken by the petitioner that DEPB cannot be subject to levy of sales tax. The challenge to the notifications Therefore fails. However, the grounds taken in the petition regarding the legality of recovery of tax on sale of old office car can be effectively adjudicated by the appellate forum in the appeal filed. Similar is the case with other factual disputes. Writ petition is not entertained and is dismissed."

It is rather unfortunate that another writ petition has been filed before this Court in which the petitioners have challenged the same notification, and a serious endeavor has been made to obtain stay of the implementation of writ of demand (Annexure-A). It is difficult to comprehend that the petitioners, who are in trade and business, would not know that the same notification was challenged by C.W.P.No. 3997 of 2001 and by a detailed judgment of the Division Bench the writ petition was dismissed.

This Court is left with no option but to dismiss both the writ petitions along with C.M.Nos. 2463/2002, 2121/2002 and 2500/2002 with costs which we quantify as Rs. 2,500/- in each writ petition. The costs be deposited with the prime Minister''s Relief Fund within six weeks.