1. - We have heard learned counsel appearing for the assessee.

2. The petitioner is a partnership firm carrying on business of purchase and sale of cement. A survey was made by Assistant Commercial Taxes Officer, Ward-II, Anti Evasion, Bikaner, in which the petitioner was found to be selling cement on lesser price than the total purchase price of the cement. A show cause notice dated 6.6.2014 was issued, calling upon the petitioner as to why input tax credit of Rs. 16,31,935/-, being difference in purchase value and sale value of the cement, may not be denied, and for levy of penalty under Section 61 of the Rajasthan Value Added Tax Act, 2003 (for short, 'the VAT Act, 2003'). The petitioner filed a detailed reply on 17.6.2014, alongwith trading account, and submitted that he has not sold the product on subsidised price.

3. The petitioner was subjected to assessment for the year 2014-15, in which the Assessing Officer, by his order dated 17.6.2014, levied penalty under Section 61 of the VAT Act, 2003 to the tune of Rs. 4,73,520/-.

4. By this writ petition, the petitioner has prayed for declaring sub-section (3A) of Section 18 of the Rajasthan VAT Act, 2003, inserted by Section 7(iii) of the Finance Act, 2011 with effect from 9.3.2011, as arbitrary, illegal and violative of Articles 14, 19(1)(g) and 300A of the Constitution of India. The petitioner has also prayed for a declaration that the sales made by him at lesser rates do not amount to sale at 'subsidized rates', falling foul to Section 18(3A) of the VAT Act, 2003, and also to set aside the assessment order dated 17.6.2014.

5. The assessment order is subject to appeal under the VAT Act, 2003, and thus, we do not propose to interfere with the assessment made by the Assessing Officer under the VAT Act, 2003.

6. Learned counsel appearing for the petitioner submits that since the authorities constituted under the Act, namely, the Assessing Officer, the Appellate Authority and the Tribunal, do not have powers to declare any provision of law, including sub-section (3A) of Section 18 of Rajasthan VAT Act, 2003, to be ultra vires Articles 14, 19(1)(g) and 300A of the Constitution of India, the petitioner has been constrained to file this writ petition, for a declaration to that effect.

7. In order to appreciate the contention of learned counsel appearing for the petitioner, we find it appropriate to quote the definitions of 'Input Tax' & 'Reverse Tax', and Section 18, including the amended sub-section (3A) of Section 18 of the VAT Act, 2003 inserted by Section 7(iii) of the Finance Act, 2011, as follows:-

"Section 2(17):- 'Input Tax' means tax paid or payable by a registered dealer in the course of business, on the purchase of any goods made from a registered dealer. Section 2(33):- 'Reverse Tax' means that part of the input tax for which credit has been availed in contravention of the provisions of section 18.

"Section 18. Input Tax Credit.-(1) Input tax credit shall be allowed, to registered dealers, other than the dealers covered by sub-section (2) of section 3 or 5, in respect of purchase of any taxable goods made within the State from a registered dealer to the extent and in such manner as may be prescribed, for the purpose of -

(a) sale within the State of Rajasthan; or

(b) sale in the course of Inter-state trade and commerce; or

(c) sale in the course of export outside the territory of India; or

(d) being used as packing material of goods, other than exempted goods, for sale; or

(e) being used as raw material except those as may be notified by the State Government in the manufacture of goods other than exempted goods, for sale within the State or in the course of Inter-state trade or commerce; or

(f) being used as packing material of goods or as raw material in the manufacture of goods for sale in the course of export outside the territory of India; or

(g) being used in the State as capital goods in manufacture of goods other than exempted goods, however, if the goods purchased ar