Judgment:
A.K. Mathur, J.
1. The petitioner by this writ petition challenged the assessment order dated 12th March, 1986 and notice of demand issued in pursuance of this assessment order.
2. The petitioner carries on business in the name and style of M/s. Jaambhad Furniture, Bikaner. The petitioner is a registered dealer under the Sales Tax Act and holds registration No. 1831/78.
3. The petitioner submits that the petitioner has been submitting the regular returns and paying the sales tax dues. The petitioner had submitted all his sales tax returns up to the quarter ending on 30th September, 1985 and had also paid all the sales tax dues. The petitioner submits that the sales tax returns for the quarter ending on 31st December, 1985, were due on 30th January, 1986, but the petitioner could not submit these returns. The return for the quarter from January to March, 1986, could be filed by the petitioner up to 30th April, 1986. It is further submitted that so far as the payment of the tax is concerned it is payable monthly as per notification dated 3rd June, 1970, within 21 days after the close of the third month of each quarter from the year of accounts. The petitioner Submits that so far as the month of January, 1986, is concerned the tax was payable up to 21st February, 1986. During the month of January, 1986, the petitioner had supplied certain goods to the Military Engineering Services at Bikaner and Suratgarh for approval under challans. The goods delivered by the petitioner were examined by the competent officers of the M.E.S. and finally by the C.D.A., Western Command, Chandigarh. It is only after the acceptance of the goods by the C.D.A., Western Command, that the sale of the material supplied by the petitioner can take place. The petitioner had no other sale except the deliveries made by the petitioner to the M.E.S., Bikaner and Suratgarh. The final acceptance of the goods delivered by the petitioner during the month of January, 1986, was not communicated to the petitioner up to the end of January, 1986. Hence no sale took place between the petitioner and the M.E.S. authorities till the end of January, 1986, as such the petitioner was not liable to pay tax up to 21st February, 1986.
4. The petitioner received a notice for provisional assessment under Section 7B (exhibit 1) dated 5th March, 1986, from respondent No. 2. The petitioner by this notice was called upon to show cause why a best judgment assessment is not made against him under Section 7-B of the Rajasthan Sales Tax Act, 1954. He further submits that on 11th March, 1986, an inspector of the sales tax department visited the petitioner's premises and inspected the delivery vouchers of the goods delivered by the petitioner to the Garrison Engineers, M. E. S., Suratgarh and Bikaner and he also demanded a cheque for the amount of tax which according to him is payable on the said, deliveries. The petitioner gave a, cheque for a sum of Rs. 14,166. He also submitted replies to the notices. Thereafter, the respondents issued a provisional assessment under Section 7-B on 12th March, 1986 and issued a demand notice exhibits 3 and 4 respectively. The provisional assessment order was passed on 12th March, 1986, ex parte. Thereafter, the petitioner submitted an application under Section 10-C of the Rajasthan Sales Tax Act for setting aside the ex parte provisional assessment passed on 12th March, 1986. The same is still pending consideration before the Assistant Commercial Taxation Officer. But respondent No. 2 attached the bank account with the State Bank of India in its two branches situate at Dauji Road, Bikaner and Gangashahar Road, Bikaner, vide order dated 25th March, 1986 (exhibits 6 and 7 respectively). Respondent No. 2 also attached the petitioner's account with Garrison Engineers at Bikaner and Suratgarh, vide order dated 28th March (exhibits 8 and 9 respectively). It is in these circumstances, the petitioner approached this Court by filing the present writ petition.
5. A return has been filed by the respondent and it has been pointed out that since the petitioner did not deposit, the tax and avoided the deposit of the tax, therefore, a notice under Section 7-B was issued. As the petitioner did not appear before the Assistant Commercial Taxation Officer, therefore, ex parte proceedings were initiated against the petitioner. So far as filing of the application for setting aside the order under Section 10-C of the Rajasthan Sales Tax Act is concerned, the same was fixed for hearing and it was submitted that the decision of the application was being adjourned on the request of the learned counsel for the petitioner.
6. Mr. Purohit, learned counsel for the petitioner submitted that the action of attachment of the accounts of the petitioner by the Assistant Commercial Taxation Officer is contrary to law and arbitrary and not stipulated under the Rajasthan Sales Tax Act. The submission of the learned counsel does not appear to be well-placed. Mr. Bhandari, learned counsel for the respondent, has invited my attention to Sections 7-B and 11-A of the Rajasthan Sales Tax Act. Section 7-B requires that where the assessing authority has reason to believe that a dealer has evaded or avoided tax a notice can be issued to the dealer to show cause why a provisional assessment is not made against him. Mr. Purohit pointed out that in exhibit 1 notice, reason has not been disclosed that under what circumstances the assessing authority has exercised the jurisdiction. He submits that the assessing authority acquires the jurisdiction to exercise this discretion in two circumstances, namely, (i) where the dealer has evaded payment of tax and (ii) the tax is being avoided. In the present case, it appears that the petitioner evaded payment of tax which he ought to have deposited the same by 21st February, 1986, by virtue of the notification dated 3rd June, 1970. Therefore, in the present case, the assessing authority has exercised its jurisdiction finding the case of evasion of tax. Thus, it cannot be said the order issued by the assessing authority under Section 7-B was wholly without jurisdiction. Once it is found that the authority had exercised its discretion within the ambit of the powers conferred upon it under Section 7-B then the authority can direct the petitioner to make payment of tax forthwith. If the amount has not been paid forthwith then a special measure as contained in Section 11-A can be resorted to. Learned counsel for the petitioner has invited my attention to Section 11 and submits that under Section 11, 30 days period is prescribed in case where no date is specified in the notice. Learned counsel submits that in the present case a period of 30 days was not allowed to elapse and before that a resort has been made to Section 11-A of special recovery. Section 11 contemplates that where a dealer has filed a return and the assessing authority has determined the amount of tax after giving deduction for the amount .already deposited then the balance amount can be recovered by issuing notice specifying date and in the event of the fact that a date has not been specified it shall be paid within thirty days from the date of service of the notice.
7. There are two modes contemplated under the Act as contained in Section 7-B and the other as contained in Section 10. Under Section 10 a regular assessment takes place after the return is filed, while under Section 7-B the assessing authority issues notice wherever it finds evasion and avoidance of tax. Wherever the action is taken up under Section 7-B then the amount of tax has to be paid by the dealer forthwith and if the same is not paid then resort to Section 11-A can be taken. Wherever the regular assessment has taken place under Section 10 then for the recovery of the balance sum the steps can be taken under Section 11. Where period is not prescribed it shall be paid within thirty days from the date of notice. Thus, two different modes for two different occasions have been provided and one cannot be confused for another. Section 7-B is one mode whereas Sections 10 and 11 is another for different contingency. Thus, the contention of Mr. Purohit appears to be not well founded.
8.Though it is not necessary to decide all these questions as the same should have been raised in appeal but since they were raised before me, therefore, I had to decide. The petitioner has already moved an application under Section 10-C of the Act and the same is pending. Therefore, the petitioner had an alternative remedy of deciding the application under Section 10-C before approaching this Court. The petitioner had also a remedy of appeal under Section 13 of the Act against the provisional assessment order issued under Section 7-B of the Act. The petitioner also did not avail that remedy and directly filed this writ petition challenging the action of the respondents. Mr. Bhandari has informed me that the application of the petitioner under Section 10-C for setting aside the ex parte assessment order is being delayed on account of the adjournments sought by the petitioner.
9. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. AIR 1985 SC 330, it has been observed as under:
Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance, where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. The Supreme Court can take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice needs to be strongly discouraged.
10. Thus, I think that the present writ petition is misconceived as the petitioner had a statutory remedy and before approaching this Court the petitioner should avail the alternative remedy. The respondents are directed to dispose of the application of the petitioner pending with them expeditiously. Any observation made in this case will not prejudice the case of the petitioner.
11. In the result, the writ petition is dismissed. The parties are left to bear their own costs.