1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1. SPL. APPL. WRIT No. 997 of 2000 MUKESH AGARWAL V/S STATE OF RAJ. 2. SPL. APPL. WRIT No. 998 of 2000 SMT. VIMLA DEVI V/S STATE OF RAJ. Mr. DINESH MEHTA, for the appellant / petitioner Mr. VK MATHUR, for the respondent Date of Order : 10.12.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. ORDER ----- These two appeals arise out of identical order of the learned Single Judge dismissing two writ petitions on the ground of availability of alternative remedy, and for that purpose the learned Single Judge has relied upon the decision of this Court rendered in the case of B.S.L. Ltd. S.B. Civil Writ Petition No. 651/2000 decided on 25.8.2000. Thus, the petitioners have been relegated to the alternative remedy as provided by the statute. The writ petitions seek to challenge the notice Annexure-8 whereby notice was given to each of the petitioners in the capacity of Directors of M/s. Salasar Vanaspati Private Limited, Boranada, Jodhur and mentioning that RST and CST demand for the assessment year 1991-92, 1992-93, and 1993-94 has not been deposited by the addressee for which notice of 2 demand and show cause notice were issued still the amount has not been deposited, therefore, the addressee was called upon to show cause as to why prosecution be not launched in the competent court under Section 71(1)(d) of the Sales Tax Act, 1994. It was also contemplated that the addressee could deposit the outstanding amount on or before 26.2.1998, and show the receipt to the signatory of the notice. Arguing the appeal, it was contended that the two petitioners had already retired from the company way back on 17.3.1992, and the company had other directors including Prem Kumar and Suraj Devi, and in view of the very language of provisions of Section 49, and in view of the fact that the petitioners had already ceased to be directors, their liability is not attracted with the obvious result that no prosecution can be launched either, and therefore, the notice is without jurisdiction. Another submission made is that the requirement of the language of Section 71 is that the amount of demand should not have been paid despite expiry of 6 months since the date of receipt of demand notice while in the present case the demand notice was never served on the petitioners, and therefore, also the liability is not attracted, and the learned Single Judge was in error in relegating the petitioner to alternative remedy. According to the learned counsel since the notice is wholly without jurisdiction, it was open to the petitioners to directly invoke Article 226 jurisdiction of this Court. Learned counsel for the respondent supported the impugned order. 3 We have considered the submissions. Before proceeding further, we may gainfully quote the provisions of Section 49 and 71(1)(d) of the Sales Tax Act which reads as under:- “49. Liability of directors of a private company:- Subject to the provisions of the Companies Act, 1956 (Central Act 1, 1956) where any tax and other sum recoverable under the Act from any private company, whether existing or wound-up or under liquidation, cannot be recovered for any reason whatsoever, every person who was a Director at any time during the period for which the tax or other sum are due shall be jointly and severally liable for the payment of such tax and other sums unless he proves to the satisfaction of the assessing authority that the non- payment of tax or other sums cannot be attributed to any gross neglect misfeasance or breach of duty on his part. 71. Prosecution under the Act:- (1) Where any person- (a).... (b).... (c).... (d) fails to pay the amount of any demand notice and a period of not less than six months has elapsed since the receipt of the demand notice by him;..” In our view, the question as to whether the petitioners were directors, or not during the relevant period for which tax, or other sum are due is a question of fact. Likewise, the question as to whether the notice of demand was served on the petitioner, or not, and whether six months have 4 elapsed since the receipt of notice, and payment having not been made is again a question of fact, and the petitioners cannot be allowed to agitate these questions straight-way before this Court, and require this Court to adjudicate them for the purpose of arriving at the conclusion as to whether the notice is without jurisdiction, or not. Learned counsel of course, tried to refer to the recitals in the assessment order to show that it was brought to the notice of the authority concerned that the petitioners have ceased to be directors but then even from the perusal of the assessment orders it does not transpire that the authorities had accepted this contention though it does not appear to have been expressly negatived either. In that view of the matter, we do not find any ground to interfere with the impugned order of the learned Single Judge; and think it appropriate to leave it open to the petitioners to submit a reply to the notice Annexure-8 within a period of three weeks from today, raising all contentions as the petitioner may feel entitled to raise, and the authorities concerned shall examine those contentions on their own merits, and on the anvil of the language of Section 49 and 71(1)(d), and then proceed according to law. The appeals are accordingly disposed of as above. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/