A tractor is not a motor vehicle within the meaning of the Punjab General Sales Tax Act and the sale of its spare parts is not liable to tax at the enhanced rate applicable to motor vehicles.

J.N.Kaushal, J.

1. Four connected petitions, being Civil Writs Nos. 2315 and 2589 of 1965, and Nos. 68 and 1053 of 1966, will be disposed of by this order. The point involved in all the four petitions is common and the facts will be given in civil writ No. 2315 of 1965.

2. The petitioner-firm is a dealer registered under the Punjab General Sales Tax Act (hereinafter called the Act) and is carrying on the business of motor spare parts, tractor spare parts and lubricants etc. In the return for the year 1964-65, tax for the sale of spare parts of the tractors was calculated at the rate of six per cent and on that basis the tax was deposited. A notice in form ST-14 was issued and Amrit Lal, partner of the firm, appeared before the assessing authority in response to the notice. The main dispute raised was that the sales of the spare parts of the tractors, tyres and tubes were liable to be taxed at ordinary rate of tax at six per cent. The assessing authority, however, took the view that such sales were liable to tax at the rate leviable on the sale of spare parts of motor-vehicles under item (1) of Schedule `A of the Act. The rate of tax on the sale of spare parts of motor-vehicles is ten per cent. The petitioner was dissatisfied with the order of the assessing authority, but did not filed an appeal since the Excise and Taxation Commissioner, Punjab, had already intimated to the President, Punjab State Tractors and Tractor-Parts Dealer4s Association, Kala Kender Road, Hissar, vide Annexure `A, his view wherein it had been stated that the view, which was held by the said dealers association regarding the levy of sales tax on the sale of spare parts of tractors, was contrary to law. This Court has been moved under Article 226 of the Constitution of India for quashing the order of the assessing authority which was passed on 30th July, 1965, Annexure `B.

3. It is strenuously argued by Mr. Bhagirath Dass, learned counsel for the petitioner-firm, that `tractor is not a `motor-vehicle within the meaning of item (1) of Schedule `A of the Act, wherein a list of luxury goods is given. According to the learned counsel, `tractor could not be deemed to be an item of luxury and it is not a `vehicle. Reference is also made to notification No. 1864-R and T. 58/1012, wherein the rate of tax on the sale of tractors was fixed at a consolidated sum of Rs. 100/- per tractor. In the view of the learned counsel, this notification gave a clear indication that the tractor was not regarded as a motor-vehicle by the Punjab Government itself.

4. On behalf of the State, a preliminary objection has been taken that the petitioner-firm not having exhausted its remedies under the Act, no relief should be granted to it by this Court in a writ petition. On the merits, it is stated that the assessing authority has taken a correct view of law and that `tractor being a `motor-vehicle, the sale of its spare parts was liable to tax at the enhanced rate under Schedule `A of the Act.

5. In order to meet the preliminary objection raised by the State, Mr. Bhagirath Dass places his reliance on a Division Bench authority of this Court reported in Messrs Jhandu Mal Tara Chand v. Assessing Authority, Karnal, 1966 AIR 48, wherein it was held -

"Since the Deputy Excise and Taxation Commissioner, Ambala Division who was the appellate authority from the order of the assessing authority, Karnal, felt himself bound by the departmental instructions, the remedy by way of appeal to him from the impugned order would have been futile and illusory and hence the preliminary objection put forward in the return as to this petition, being barred on the ground that the petitioner did not avail all the alternative remedies by way of appeal etc. cannot be allowed to prevail".

The Rule laid down in this authority is clearly applicable to the present case. As is clear from annexure `A, the view of the Excise and Taxation Commissioner, Punjab, being against the petitioners contention it was f