1. Notice on behalf of the respondents has been accepted by the learned Chief Standing Counsel, who prays for and is granted three weeks'' time to file counter affidavit.
2. The petitioner has approached this Court after the provisional assessment order has been passed for the period commencing from April, 2009 to March, 2010. The proceedings have been taken u/s 25(1) of the U.P. Value Added Tax Act, 2008.
3. A preliminary objection has been raised by Sri H.P. Srivastava, learned Counsel for the State, regarding the maintainability of the writ petition at this stage, saying that even against the provisional assessment order, appeal lies u/s 55 of the U.P. Value Added Tax Act, 2008 and, therefore, the petitioner be relegated to the remedy aforesaid.
4. Sri Ashok Kumar, learned Counsel for the petitioner, in response, submitted that it is a case where a purely legal question regarding the taxability of Centrifugal Diesel Pumping Sets would arise recurrently, as the Centrifugal Diesel Pumping Sets have been assessed as unclassified items, whereas under Schedule-II Part-A, they can be charged only at a maximum rate of tax @ 4%. His further submission is that in fact, the aforesaid Centrifugal Diesel Pumping Sets should be taken as exempted from tax, they being the agricultural implements, as given in Schedule-I.
5. In response to the plea of alternative remedy, learned Counsel for the petitioner has submitted that alternative remedy is not an absolute bar in a case where purely legal question is to be decided by the High Court and if the assessment is allowed to be made on each occasion, the petitioner may be required to file an appeal in every case. He further says that in view of the settled position of law regarding the rate of tax which can be charged on Centrifugal Diesel Pumping Sets, the assessing authority was not at liberty to take a different view and since the matter stands covered by the Full Bench Judgment of the High Court, therefore, this Court may consider the issues aforesaid.
6. In support of his submissions, learned Counsel for the petitioner has placed reliance upon the Full Bench Judgment of this Court in the case of Engineering Traders, Begum Bridge Road, Meerut v. State of U.P. and S.T.O., Meerut 1973 U.P.T.C. 91, wherein the principle of alternative remedy was also considered and was overruled in a matter of tax assessment, though the vires of Section 3-AB of the U.P. Sales Tax Act, 1948 was also under challenge in that case.
7. The aforesaid Judgment has also been cited in support of the plea that Centrifugal Diesel Pumping Sets are agricultural implements, as observed therein and, therefore, they stand exempted.
8. Reliance has also been placed upon the case of
9. Learned Counsel for the petitioner has further relied upon the case of Cannon India Pvt. Ltd. v. State of U.P. and Ors. reported in 2003 131 S.T.C. 160, wherein, while considering the plea of alternative remedy in a writ petition filed against the final assessment order, a Division Bench of Allahabad High Court found that if the controversy is likely to be of a recurring nature, where the factual allegations are not denied and the matter involves only question of law, the writ petition should not be dismissed on the ground of availability of alternative remedy. In this case, the question was whether the fully automated photocopier machines running on electron principles and exclusively working with microchips or microprocessors are electronic goods or not. The Division Bench in view of the fact that it was an issue, which was a recurring issue, entertained the writ petition and decided the matter by quashing the assessment order.
10. In the present case, we are, prima facie, satisfied that the question whether Centrifugal Diesel Pumping Sets are agricultural implements and they are exempted from tax or that the tax can be charged only @ 4%, as given in Schedule-II Part-A or whether they can be charged under unclassified item, requires consideration by the Court.
11. The plea of the petitioner that in fact, the Centrifugal Diesel Pumping Sets should stand exempted from tax, is a plea which can be considered at an appropriate stage.
12. We also, prima facie, find that in a matter like the present one, the same issues are likely to be occurred every year, which is purely legal, the alternative remedy cannot be an absolute bar.
13. We, therefore, while entertaining the writ petition and requiring the respondents to file counter affidavit, as aforesaid, direct that in pursuance of the impugned order of provisional assessment, no recovery shall be made from the petitioner, subject to the condition that the petitioner deposits the tax @ 4% on the Centrifugal Diesel Pumping Sets, within a maximum period of two weeks from the date of receipt of a certified copy of this order, if any such tax remains to be paid.
14. On the request of the parties'' counsel, list this matter in the month of October, 2010 for final hearing peremptorily.
15. Interim order shall continue till the next date of listing.
