JUDGMENT M. Katju, J.
1. This writ petition has been filed for quashing the impugned penalty notice dated December 20, 1988, annexure 11 to the petition, issued Under Section 15-A(l)(a) of the U.P. Sales Tax Act, 1948 for the assessment year 1984-85 by the Sales Tax Officer, Sector-4. Gorakhpur. The petitioner has also praved for quashing of the assessment order dated December 14, 1988 and the orders dated October 27, 1988 and February 6, 1988, annexures 9 and 5 to the writ petition. The petitioner has also prayed for a mandamus directing the respondent No. 2 to issue form III-C(2) to the petitioner and to refund the amount deposited by the petitioner for obtaining form III-C(2). The petitioner has also prayed that the respondent No. 1, be prohibited from passing assessment orders subsequent to assessment year 1984-85.
2. Heard learned Counsel for the parties.
3. The petitioner is a new unit as contemplated Under Section 4-A of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") and holds eligibility certificate dated April 2, 1985 Under Section 4-A(2) of the Act (vide annexure 1 to the petition). The petitioner is engaged in the business of manufacturing of "dal", for which eligibility certificate was issued. Exemption was granted for a period of three years with effect from April 2, 1985. Dal is prepared from arhar, mung, chana, muttor and masoor. It appears that the petitioner sold "dal" to various parties with the understanding that it will be issued form III-C as contemplated under Rule 12-B of the U.P. Trade Tax Rules, 1948. For the issuance of the said form the petitioner applied to the assessing authority. It appears that 20 forms were issued (vide para 4 of the petition) but subsequently the assessing authority did not issue the forms, as stated in paragraphs 5 and 6 to the petition.
4. Arhar, mung, etc., are liable to tax at the point of first purchase under the notification issued Under Section 3-D of the Act. For the manufacturer of dal, full exemption is not contemplated Under Section 4-B of the Act. Hence, on the purchases of dal, the manufacturer is liable to pay tax at 4 per cent being first purchaser in case purchases are made from an unregistered dealer or farmers, and in case the purchases are made from a registered dealer there would be no liability in case the dealer files requisite certificate of tax paid as contemplated Under Section 3-D(7) of the Act. It appears that on the purchases of arhar, mung, etc., tax was not paid. Hence, in the assessment order for the assessment year 1984-85 tax was assessed and it appears that on account of late deposit of tax on the purchases of arhar, mung, etc., penalty notice Under Section 15-A(l)(a) of the Act was also issued.
5. In the present writ petition the petitioner has challenged the validity of the assessment order passed for the assessment year 1984-85, notice Under Section 15-A(l)(a) of the Act and has also prayed for direction to the assessing officer to issue form III-C(2) to the petitioner. The claim of the petitioner is that in view of the G.O. No. 2-607-1086, dated January 29, 1985 its new unit became entitled for exemption both on the sale of manufactured products as well as on the purchases of raw material.
6. Prior to January 29, 1985 a new unit was entitled for the benefit of exemption either on the sale of manufactured products or on the raw material. Now, on the basis of the above Government order, it is claimed that the purchases of raw material, namely, arhar, mung, etc., were not liable to tax and, therefore, the assessment order for the year 1984-85 and the penalty notice Under Section 15-A(l)(a) of the Act are liable to be set aside. It is further submitted that the petitioner has to issue form III-C(2) to its purchaser, which the assessing authority cannot legally deny. The petitioner has prayed for mandamus to the assessing authority to issue form III-C(2).
7. In the counter-affidavit, it has been accepted that the petitioner is entitled for the benefit of exemption both on the purchases as well as on the sales after January 29, 1985 but it is alleged that since "dal" is not entitled for full exemption Under Section 4-B of the Act, the petitioner is liable to tax on the purchases of arhar at 4 per cent being the first purchaser. It is submitted that on the verification that the tax has been paid form III-C(2) can be issued.
8. In our opinion there is no merit in this petition. There is no dispute that after January 29, 1985 new units were entitled for the benefit of exemption both on the sale of its manufactured products as well as on the raw material. Exemption on the raw material was contemplated Under Section 4-B of the Act for which recognition certificate was required to be obtained Under Section 4-B(2) of the Act and the exemption was contemplated under the Notification No. ST-II -2958/X-9(l)-76, dated the 20th May, 1976 issued Under Section 4-B. Under the above notification issued Under Section 4-B of the Act full exemption was not contemplated to dal units. Hence, the purchaser of arhar, mung, etc., were liable to tax at 4 per cent under partial general exemption Under Section 4-B of the Act as well under the notification issued Under Section 3-D of the Act. In effect, there was no benefit contemplated to dal Under Section 4-B of the Act and the unit was liable to pay tax at 4 per cent on it purchases being first purchaser unless it furnishes certificate as contemplated Under Section 3-D(7) of the Act, if purchases are made from a registered dealer. In any view of the matter an appeal lies against the assessment order. Hence, no relief can be granted for quashing of the assessment order in the writ petition. So far as quashing of the notice Under Section 15-A(l)(a) is concerned, the petitioner, may file reply to the notice and the assessing authority shall adjudicate in the same.
9. So far as the prayer for a direction to the assessing authority to issue form III-C is concerned, in our opinion, issuance of such form is based on the facts whether tax has been paid or not. Form III-C(2) is contemplated under Rule 12-B and can be issued by the purchaser/ first purchaser thereof to his selling agent or to the subsequent purchaser as the case may be. A dealer, who issues the said form, certifies that in respect of the goods, being purchaser/first purchaser, he accepts liability to pay purchase tax. A manufacturer is not entitled to issue form III-C(2). However, a manufacturer of dal may be permitted to issue form III-C(2) except for the period October 1, 1964 to November 14, 1971 because whole dal (pulses) and split or processed dal have been treated as one and the same, in view of the Explanation to Section 3-D. Hence, if tax was paid on the pulses (whole dal), split dal may also be treated as tax paid.
10. In Tilok Chand Prasan Kumar v. Sales Tax Officer, Hathras, District Aligarh reported in [1970] 25 STC 118, a division Bench of this Court held that whole dal (pulses) and split or processed dal are one and the same commodity. A perusal of the various letters issued by the Assistant Commissioner (Legal), Sales Tax, on behalf of the Commissioner of Sales Tax also show that a direction has been issued to the assessing authority that in case tax is paid on the purchases, the form should be issued. Hence, the stand of the assessing authority appears to be justified that form III-C(2) can be issued only on verification. In case the claim of the petitioner is found to be correct that tax on the whole dal is paid, the necessary form should be issued by the assessing officer as required by the petitioner for further issuance to its purchaser. In the circumstances, no mandamus can be issued for the issuance of form III-C(2) without verification. The petitioner may apply to the assessing authority and endeavour to satisfy it that tax has been paid on the purchases, and if it does so, the assessing authority may issue form III-C(2). If the assessing authority is of the view that the form should not be issued the assessing authority should give reasons for the same, so that the petitioner may contest the matter in appeal/revision.
11. With the above observation this petition is dismissed. Interim order, if any, is vacated.