Glasswares used in school, college, and hospital laboratories are not luxury goods and cannot be taxed at a higher rate under the Punjab General Sales Tax Act, 1948.

Rajendra Nath Mittal, J.

1. This writ petition has been filed under Articles 226 and 227 of the Constitution of India for quashing the notices, annexures B, B-1 and B-2, dated 5th June, 1972, issued by the Assessing Authority, Ludhiana, for reassessment under the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the "Act").

2. The facts of this writ petition in brief are that the petitioner is a registered firm under the Act and it deals in laboratory chemicals and laboratory apparatus, such as beakers, test tubes, flasks, jars, graduated cylinders, condensors, etc., for schools, colleges and hospitals. In the year 1967-68, it was assessed to a sales tax of Rs. 15,375.67 at the rate of six per cent, on the goods sold by the petitioner, namely, laboratory chemicals, beakers, test tubes, flasks, gas jars, graduated cylinders, condensors, etc. (annexure A), in the year 1968-69 to Rs. 20,601.71 (annexure A-l) and in the year 1969-70 to Rs. 25,508.49 (annexure A-2). The Assessing Authority, respondent No. 1, issued three notices on 5th June, 1972, relating to the aforesaid three years (copies annexures B, B-l and B-2) stating that the sales for the respective years have been underassessed the levy of appropriate tax. It is further stated that the petitioner should show cause as to why the reassessment should not be made against it. The petitioner has challenged the aforesaid notices on the ground that the aforementioned goods which are used in school, college and hospital laboratories cannot be termed as "luxury items" and that the respondent cannot charge a higher rate of tax on them.

3. The respondent has contested the petition and stated that the aforesaid goods were glasswares under entry 23 of Schedule A of the Act and were liable to tax at the rate of eight per cent. On the basis of the definite information, a notice under Section 11-A of the Act was issued to the petitioner. It is also stated that the petition is premature as the matter has not been decided by respondent No. 1 as yet.

4. A preliminary objection has been raised by the learned counsel for the respondent that the petition is premature. The learned counsel for the petitioner states that vires of entry 23 of Schedule A and jurisdiction of the respondent to issue the impugned notice have been challenged by the petitioner and he can file the writ petition for the aforesaid purpose.

5. I have heard the learned counsel for the parties and am of the view that the argument of the learned counsel for the respondent has got no force. In the present case, the question is whether beakers, test tubes, flasks, gas jars, cylinders, etc., which are used in the school, college and hospital laboratories are luxury goods within the meaning of proviso to Sub-section (1) of under Section 5 of the Act and if not, can the Legislature include them in Schedule A of the Act, which relates to such goods. The jurisdiction of the respondent to issue the notices has also been challenged. If the facts of the case justify interference, the jurisdiction of this court is not taken away merely because the authority concerned has not decided the matter. Infirmity of the notice in the present case has been challenged on the ground of jurisdiction of the respondent which depends on the interpretation of under Section 5 of the Act. Such a question can be gone into by this court. I, therefore, reject the objection of the learned counsel for the respondent.

6. The contention of the learned counsel for the petitioner is that the items mentioned above are not luxury goods, Proviso to Sub-section (1) of under Section 5 of the Act provides that a tax at such rate not exceeding eight naya paise in a rupee may be levied on the sale of luxury goods as specified in Schedule A appended to this Act. The said sub-section with the proviso is as follows :

5. Rate of tax.-(1) Subject to the provisions of this Act, there shall be levied on the taxable turnover of a dealer a tax at such rates not