JUDGMENT
G.G. Sohani, J.
1. This is a petition under Article 226 of the Constitution of India.
2. The material facts giving rise to this petition, briefly, are as follows :
The petitioner carries on business as a contractor and as a supplier of materials to the railway and other departments of the State Government and public undertakings. The petitioner was assessed to sales tax under the provisions of the M.P. General Sales Tax Act, 1958 (hereinafter referred to as “the Act”), for the assessment years 1st April, 1967 to 31st March, 1972. Aggrieved by the orders of assessment and penalty passed against the assessee, the assessee preferred revision petitions. In the revision petition filed against the order of assessment in respect of the assessment year 1st April, 1968, to 31st March, 1969, the Deputy Commissioner, by his order annexure 17 dated 16th May, 1980, affirmed the amount of tax assessed by the assessing authority but reduced the amount of penalty. In the revision petitions preferred against the orders of assessment and penalty passed in respect of the assessment years 1969-70, 1970-71 and 1971-72, the Deputy Commissioner, by his order annexure 18 dated 21st July, 1980, observed that though a number of adjournments were granted to the assessee, the assessee failed to appear on 21st July, 1980 fixed for hearing. The Deputy Commissioner held that on going through the record he found no cogent reason to interfere with the impugned orders. The learned Deputy Commissioner, therefore, dismissed the revision petitions. The petitioner thereupon again preferred a revision petition, annexure 19, before the Commissioner. The assessee was informed by the Additional Commissioner by letter dated 2nd February, 1983, annexure 20, that as the revision petition preferred by the petitioner was already dismissed, no case has been made out for reopening the issue. The petitioner thereupon again preferred another revision petition before the Commissioner. By letter dated 29th December, 1983, annexure 22, the Additional Commissioner again informed the petitioner that the revision petitions were already rejected and the third successive application submitted by him in that behalf was also rejected. As the petitioner had failed to pay the amount of tax and penalty due from the petitioner, proceedings for recovery of that amount were commenced and the property of the petitioner was attached vide annexure 23 dated 13th January, 1984. The petitioner thereupon has filed this petition under Article 226 of the Constitution of India.
3. The main contention advanced on behalf of the petitioner by the learned counsel for the petitioner was that the assessing authorities did not act fairly in passing the assessment orders in question. It was contended that the petitioner was not a dealer but was merely a works contractor and was not liable to pay any tax under the Act. It was also contended that while imposing tax, the assessing authority had not taken into consideration the relevant notifications issued in that behalf.
4. In the return submitted on behalf of the respondents, it was contended that the petitioner collected material from quarries and supplied it to railway and other departments for construction of buildings and roads and was, therefore, a dealer under the Act. It was further contended that the orders of assessment passed against the petitioner and the amount of tax and penalty levied were according to law and that no case was made out on behalf of the petitioner for interference under Article 226 of the Constitution.
5. Learned counsel for the petitioner referred to certain certificates and contended that these certificates showed that the petitioner was only a labour contractor and not a dealer. We asked the learned counsel for the petitioner whether these documents were produced before the assessing authorities or the Commissioner and the learned counsel frankly conceded that that material was not brought on record till the petition was filed in this Court under Article 226 of the Constitution. Before the learned Additional Commissioner, who heard the revision petitions, the petitioner did not appear in spite of a number of adjournments granted to the petitioner. The Commissioner’s order had become final on 21st July, 1980 and no provision was brought to our notice to show that after the dismissal of the revision petitions on 21st July, 1980, successive petitions for revision could be preferred before the Commissioner to keep the matter alive. Apart from the fact that this petition filed after about 3 1/2 years from the order passed by the Commissioner is belated, the order of the Commissioner cannot be quashed on the basis of the record, which was not produced before him or before the assessing authorities. The learned counsel for the petitioner was unable to point out any reason for not appearing before the Commissioner. The Commissioner was not bound to grant further adjournment to the petitioner. The fact that on earlier occasions, repeated adjournments were granted to the petitioner, as observed by the Additional Commissioner, was not denied. Under the circumstances, no case, in our opinion, has been made out on behalf of the petitioner to set aside the impugned orders.
6. As regards grievance of the petitioner that in imposing tax under the Act, the assessing authorities had ignored the relevant notifications, prescribing the rates, we asked the learned counsel to point out the relevant allegations made in the petition in that behalf so that from its reply in the return, we could ascertain as to whether imposition of tax was according to law. The learned counsel for the petitioner frankly conceded that there was no allegation to that effect in the petition. The hearing of the petition was adjourned by this Court a number of times at the request of the learned counsel for the petitioner and no attempt was made to amend the petition by raising a ground now sought to be raised. Under the circumstances, the petitioner cannot be allowed to raise a ground for the first time in hearing when that ground was neither urged before the assessing authorities and the Commissioner nor was taken in the writ petition. No case has thus been made out for grant of any relief to the petitioner.
7. The petition, therefore, fails and is accordingly dismissed with costs. The interim orders passed on 8th February, 1984 and 13th September, 1984, are vacated. Counsel’s fees Rs. 250 (two hundred and fifty), if certified.