ORDER 1. The petitioner, a public limited company incorporated under the Companies Act, while questioning correctness of the order dated 21.3.2014, passed by Commercial Taxes Officer, Anti Evasion Circle, Bhilwara, has also challenged constitutional validity of Sections 26 and 82(3) of the Value Added Tax Act, 2003 (hereinafter referred t o as 'the VAT Act'). 2. The factual matrix deserve notice is that the Government of Rajasthan, exercising authority under sub section (5) of Section 8 of the Central Sales Tax Act, 1956 (hereinafter referred to as 'the CST Act'), with a view to increase inter-State sales and decrease the quantum of branch transfers in order to augment the State's revenue from inter-State sales, issued a partial exemption notification dated 6.5.1986. The notification aforesaid reads as under:- “NOTIFICATION NO.F.4(72)FDGr.IV/8I-18 Dated 6/5/1986 - S.O.23.-In exercise of the powers conferred by S.8(5), CST Act, 1956, the State Govt. in supersession of the FD notfn. The notification aforesaid reads as under:- “NOTIFICATION NO.F.4(72)FDGr.IV/8I-18 Dated 6/5/1986 - S.O.23.-In exercise of the powers conferred by S.8(5), CST Act, 1956, the State Govt. in supersession of the FD notfn. No.F4(72) FDGr/IV/81-36 dated 3.12.1985 [S.No. 584], hereby directs that, with immediate effect, any dealer, having his place of business and manufacturing goods in the State of Rajasthan, may claim partial exemption from the tax payable in respect of the sales by him of such goods in the course of inter-State trade or commerce by way of reduction at the rate of 50% of the tax so payable on increased sales upto 50% and at the rate of 75% of the tax so payable on increased sales made over and above the aforesaid 50%, in the manner and subject to the conditions as follows:- (1) Such reduction of tax shall be allowed to a dealer only after and in respect of the increase which is effected in the percentage of the quantum of goods sold in the course of inter-State trade or commerce out of the total quantum of goods sold within the State and in the course of inter-State trade or commerce and despatched to Head Office, Branch Office, Depot or agent outside the State for sale outside the State, during any accounting year as against such percentage during the accounting year 1984-85; (2) in the case of a dealer who commenced the manufacture of goods in the State of Rajasthan on or after 1.1.1985, the average of the aforesaid percentages in respect of the other manufacturers in the State in the relevant industry during the accounting year 1984-85, calculated and determined by the assessing authority with the approval of the Commissioner, shall be deemed to be the percentage in respect of such dealer for the accounting year 1984-85; (3) This increase effected in the percentage, as referred to in clause (1) above in respect of the sales in the course of inter-State trade or commerce, to be considered shall be limited to the extent of the decrease in the percentage in respect of the despatch of goods to Head Office, Branch Office, Depot or agent outside the State for sale outside the State, during the relevant accounting year as against such percentage during the accounting year 1984-85; and (4) No claim for such reduction of tax shall be allowed in respect of levy- cement. Note.--Claim, for partial exemption under this notfn. Dated 6.5.1986 (S.No.625) shall not be made and allowed in respect of the inter-State sales of levy cement, and of other cement made in accordance with S.No.928 dated 7.1.1994, and also of the following goods when the sales are made and CST paid thereon in accordance with the notfns mentioned against each :- (a) All edible oils (excluding hydrogenated oils, palm oil whether refined or not and refined coconut oil) S.No.649 dated 26.12.1986, S.No.793 dated 17.4.1990, pub.18.4.1990, S.No.934 dated 31.3.1994; (b) Solvent extracted edible oil; S.Nos.650 dated 26.12.1986 and 934 dated 31.3.1994; (c) Polyester filament yarn and nylon filament yarn : S.No.741 dated 2.3.1989; (d) Polymer chips and polypropylene filament yarn : S.No.741 dated 2.3.1989, w.e.f. 13.9.1989; (e) Polyester staple fibre and acrylic stable fibre : S.No.742 dated 2.3.1989; (f) All kinds of yarn or waste thereof made from man-made fibre including spun and blended yarn but excluding polyester filament, nylon filament and polypropylene filament yarn : S.N.781 dated 12.10.1989; (g) (1) Stainless steel blooms, rounds, wire rods, squares strip sheets, and (2) Hot rolled and cold rolled coils (mis-rolls), slabs, plates, and end cuttings thereof : S.No.867 dated 19.12.1991. Departmental Circular : See S.No.653A dated 17.1.1987.” From reading of the notification, it is apparent that - (1) it grants partial exemption from CST payable in respect of inter State sales i.e. sale of goods in the course of inter-State trade or commerce; (2) it extends an incentive to increase inter-State sales by reducing branch or stock transfers i.e. dispatch of goods to branches, depots or agents outside the State for effecting sales outside the State on which no tax is leviable in the State either under the Rajasthan Sales Tax Act (hereinafter referred to as 'the RST Act') or CST Act; (3) the object of the notification is to reduce the loss of revenue to the State by branch transfers. To achieve the object emphasis is given to increase the inter-State sales and at the same time reduction of branch/stock transfers. To compute partial exemption allowed under the notification dated 6.5.1986, it is necessary to determine percentage of increase in the inter State sales and corresponding decrease in the percentage of stock/branch transfers. To achieve the object emphasis is given to increase the inter-State sales and at the same time reduction of branch/stock transfers. To compute partial exemption allowed under the notification dated 6.5.1986, it is necessary to determine percentage of increase in the inter State sales and corresponding decrease in the percentage of stock/branch transfers. The reduction of tax payable by 50% is allowed by way of incentive, if, the increase in percentage of inter-State sales of the year for which the benefit is being claimed over the same percentage of the base year is upto 50% and is matched by corresponding decrease in stock transfer percentage during the relevant year over that of the base year. On account of increase in its inter-State sales and proportionate decrease in its branch transfers, the petitioner in the year 1987-88 became eligible for partial exemption in terms of the notification dated 6.5.1986 pertaining to earlier year i.e. 1.7.1986 to 30.6.1987. Accordingly, the same was claimed and was provisionally allowed by the Commercial Taxes Officer, Special Circle, Udaipur by an order dated 16.5.1988. For the period aforesaid the CST assessment was completed by the Commercial Taxes Officer, Special Circle, Udaipur by a rectified assessment order dated 17.12.1990. The petitioner was allowed to have remission of tax on sales amounting to Rs.4,50,13,857.21. The partial exemption on increase in inter-State sales as per the notification dated 6.5.1986 was also allowed to the petitioner from the assessment years 1988-89 to 1993-94 by Commercial Taxes Officer, Special Circle, Udaipur. The Commercial Taxes Officer, Special Circle, Bhilwara also allowed the same benefit to the petitioner for the assessment years 1994-95. For the subsequent years upto 1998-99 the Commercial Taxes Officer, Rajsamand allowed exemption as per the notification dated 6.5.1986. The claim of the partial exemption as per the notification dated 6.5.1986 was also accepted by the Assessing Officer for the years 1999-00, 2001-01, 2001-02, 2002-03 and 2003-04. For the period 2007-08 the Assessing Authority i.e. the Commercial Taxes Officer, Circle, Rajsamand, by assessment order dated 9.3.2010 allowed partial exemption in terms of the notification dated 6.5.1986. It shall also be appropriate to mention that the Commercial Taxes Officer, Anti Evasion, Bhilwara conducted survey at the business premises of the assessee on 24.11.2004 and by the three notices, all dated 10.12.2004, called upon the petitioner for reopening CST assessment for the years 1999-00 to 2001-02. It shall also be appropriate to mention that the Commercial Taxes Officer, Anti Evasion, Bhilwara conducted survey at the business premises of the assessee on 24.11.2004 and by the three notices, all dated 10.12.2004, called upon the petitioner for reopening CST assessment for the years 1999-00 to 2001-02. It was stated that partial exemption in terms of the notification dated 6.5.1986 was wrongly retained by the assessee as full CST was collected from the consumers through inter-State sales. The correctness of the notice aforesaid is under challenge in DB Civil Writ Petition No.3620/2006. The writ petition aforesaid was admitted by this Court with an interim restrainment to proceed further with notices impugned. In relation to notices for subsequent assessment years on the same subject, the petitioner preferred another writ petition i.e. DB Civil Writ Petition No.4055/2010. For the assessment year 2007-08, relating to the same subject the respondents issued a notice for demand dated 21.3.2014 and that is under challenge in DB Civil Writ Petition No.3340/2014. This petition for writ was admitted for hearing on May 29, 2014 with interim direction as under:- “Having regard to the fact that these are impending summer vacations beyond this week and until 29.06.2014 and the overall facts and circumstances as noticed hereinabove, so far the aspects relating to interim relief/arrangement are concerned, it is considered appropriate and hence ordered that from today and until next date in these matters, in case the respondents intend to take up coercive recovery proceedings against the petitioner in relation to the demand arising out of the orders which are subject to challenge in CWP No.4055/2010 as also in CWP No.3340/2014, they shall serve a clear 7 days notice on the petitioner. Upon service of any such notice, it shall be permissible for the petitioner to take recourse to the appropriate remedies in accordance with law including making of a request for taking up of these matters for consideration during summer vacations.” As already stated, constitutional validity of Sections 26 and 82(3) of the VAT Act is also questioned in these petitions, however, looking to the fact that writ petitions are not contested with objection of exhausting alternative remedy of appeal before approaching this Court under Article 226 of the Constitution of India, no argument is advanced to impugn Section 82(3) ibid. We are also not inclined to relegate the petitioner to avail the remedy of appeal as per Section 82 of the VAT Act as the writ petitions were admitted for hearing after calling upon the respondents through a pre admission notice. Even otherwise, the concept of availing alternative remedy before approaching writ Court is having no application where a party comes to the Court with an allegation that his right has been or being threatened to be infringed by law that itself is ultra vires. So far as Section 26 of the VAT Act is concerned, that relates to 'escaped assessment' and reads as follows:- “26. Escaped assessment :- (1) An assessment - (a) of a person who is liable to get registration but has not got himself registered ; or (b) in which, for any reason, the levy of tax or any fee or sum payable under this Act has been escaped wholly or in part; or (c) Wherein tax has been wholly or in part unassessed or under-assessed in any way or under any circumstances, shall be deemed to be an escaped assessment and the assessing authority or the officer authorized by the Commissioner, shall on the basis of the material on record or after making such enquiry as it may consider necessary, complete such assessment within the time limit provided in sub section (3). Explanation.-The assessment under this section shall not include that part of the business which has already been assessed or deemed to have been assessed under the provisions of this Act. (2) Where the Commissioner or the Deputy Commissioner (Administration) has reason to believe that a dealer has escaped assessment to tax in any manner provided in sub-section (1), he may any time, subject to the limit specified in sub-section (3), either direct the assessing authority or the officer authorized by the Commissioner, to assess the tax or the fee or other sum or himself proceed to assess the same. (3) No notice under sub-sections (1) and (2) shall be issued in respect of any escaped assessment for any year after the expiry of five years, and no assessment under the said sub sections shall be completed after the expiry of eight years, from the end of the relevant year; but this limitation shall not be applicable to any assessment to be made in consequence of, or to give effect to, any finding or direction contained in any order passed by an appellate authority or the Tax Board or a competent court. (4) The assessment, if any already made shall be subject to the assessment made under this section.” As per the petitioner Section 26 of the VAT Act confers uncontrolled, unguided and blanket powers to the assessing authority to re-issue assessment notice. It is asserted that no safeguards and checks are given to control the powers of assessing authority, who while invoking the powers under Section 26 may review its own order passed earlier after due application of mind and considering all relevant aspects. The provisions aforesaid empowers assessing authority to reopen the assessment whenever he desires and that causes enormous harassment to an assessee. The assessing authority while invoking powers under Section 26 of the VAT Act is also not required to initiate reassessment proceedings by specifying reasons to do so. Such unguided powers entail serious consequences including the arbitrary exercise of powers by the assessing officer as he is not supposed to give reasons to reopen a concluded assessment. According to learned counsel for the petitioner Section 26 of the VAT Act is not in consonance with Articles 14, 19, 265 and 300-A of the Constitution of India, thus, deserves to be declared unconstitutional. In addition to the argument aforesaid learned counsel for the petitioner submits that as a matter of fact in the case in hand there is no escape of tax liability, therefore, the powers under Section 26 of the VAT Act could have not been invoked. It is asserted that the partial exemption was extended to the petitioner as per the notification dated 6.5.1986 after due application of mind and that remained in currency for a period of more than 15 years. It is asserted that the partial exemption was extended to the petitioner as per the notification dated 6.5.1986 after due application of mind and that remained in currency for a period of more than 15 years. Respondent Commercial Taxes Officer, Anti Evasion, without satisfying himself as to whether the case of the petitioner falls under clause (b) or clause (c) of Section 26 of the VAT Act reopened the assessment. It is asserted that the petitioner neither escaped levy of tax nor any fee or sum payable under the VAT Act and there is also no case of unassessed tax under earlier assessment. The entire taxable turn over of inter State sales has already been assessed and taxed earlier. It is also urged that for the assessment year 2007-08, the assessing authority determined the inter State sales after due application of mind and taking into consideration the disclosure of facts made by the petitioner. The re-assessment notice too nowhere disputes about true and correct disclosure of all necessary and relevant facts by the petitioner. Learned counsel emphasised that as per notification dated 6.5.1986 the benefit under the partial exemption scheme is available only after closing of the assessment year as the exact quantum of sale under different categories such as inter State sales, sales within the State and stock transfers can be determined on completion of assessment year. The scheme introduced under the notification dated 6.5.1986 allow reduction of tax to a dealer on basis of the achievements made by it in that year only. No dealer in any case can apprehend or presume exact quantum of sale in different categories at inception of the assessment year. This fact itself, as per learned counsel for the petitioner, is sufficient to indicate that benefit of partial exemption in terms of the notification is to be retained by the dealer being the partial exemption given under the notification dated 6.5.1986 is an incentive to increase inter State sales and decrease stock transfers which ultimately results into enhancement of State revenue. This incentive will go to the dealer who make efforts for enhancing inter State sales by decreasing inter State stock transfers. This incentive will go to the dealer who make efforts for enhancing inter State sales by decreasing inter State stock transfers. The incentive as given, if is not extended to the dealer, then no dealer shall make efforts to increase inter State sales by proportionate decrease of stock transfers and it shall frustrate the decision of the State Government to enhance its revenue by promoting inter State sales. In reply, while defending the action taken by the Commercial Taxes Officer, Anti Evasion, Commercial Taxes Department, Bhilwara, it is urged by learned Additional Advocate General that the notification dated 6.5.1986 does not incorporate any concession to a dealer. The benefit of partial exemption under the notification aforesaid is supposed to be extended to the customers. The petitioner retained the tax collected by consumer, thus, is liable to be penalised as per Section 60 of the VAT Act. The petitioner collected amount of tax in excess to the tax payable by it as the prescribed rate of Central Sales Tax was 4% and on account of concession given under the notification dated 6.5.1986 it came down to 2% or 1%, therefore, the tax should have been collected by the dealer on the reduced rates. While relying upon the judgments of Hon'ble Supreme Court in Amrit Banaspati Co. Ltd. & Anr. v. State of Punjab & Anr., reported in (1992)2 SCC 411 , and Kanthi Enterprises & Ors. v. State of Karnataka & Ors., reported in (2002)7 SCC 283 , it is asserted that the registered dealer is not entitled to acquire any amount by way of tax at a rate or rates prescribed. If any person or a company or a dealer collects any amount of tax in violation of the provisions of the Act or the Rules or in excess to the rates prescribed, then such person, company or dealer is required to face criminal proceedings and to pay penalty as prescribed. The petitioner in the instant matter levied excessive tax and, therefore, that is to be deposited with the State. The petitioner is also liable to face penal action. According to learned Additional Advocate General, Section 26 of the VAT Act provides a complete mechanism for reassessment of sales, if any reason exists to believe that the levy of tax or any fee or any sum payable has been escaped or the tax has been under assessed. The petitioner is also liable to face penal action. According to learned Additional Advocate General, Section 26 of the VAT Act provides a complete mechanism for reassessment of sales, if any reason exists to believe that the levy of tax or any fee or any sum payable has been escaped or the tax has been under assessed. The power given under Section 26 of the VAT Act is neither arbitrary nor in excess to the competence available as that is to be exercised objectively and by providing an opportunity of hearing to the assessee, hence, the challenge to that is misconceived. Heard learned counsels. To adjudicate the issue involve, it shall be necessary to determine nature and objects of notification dated 6.5.1986 and further its applicability by keeping in mind the law laid down by Hon'ble the Supreme Court in Amrit Banaspati Co. Ltd. & Anr. v. State of Punjab & Anr., (supra) and Kanthi Enterprises & Ors. v. State of Karnataka & Ors. (supra). In these cases Hon'ble the Apex Court held that no law can be enacted or any order be issued by the Government to refund the tax realised by it from people in exercise of its sovereign powers, except when levy or realisation is contrary to a law validly enacted. A promise or agreement to refund tax which is due under the Act and realised in accordance with law would be fraud on the constitution and breach of faith of the people. Taxes like sales tax are paid by the people irrespective of their savings with participation in growth of national economy and development, hence its refund to a private person and manufacturer would be breach of trust of the people amounting to deception under law. Hon'ble the Apex Court also made a distinction in 'refund of tax' and 'exemption from tax'. The Court observed that 'exemption from tax' to encourage industrialisation is a different concept than to 'refund of tax'. An exemption is a concession allowed to a class or individual from general burden for valid and justifiable reason. If an industry is exempted from tax then the ultimate beneficiary of that is consumer, whereas in the event of a refund it shall be an unlawful enrichment or atleast a wind fall for the manufacturer or dealer, though such dealer or manufacturer did not contribute a single penny against tax. If an industry is exempted from tax then the ultimate beneficiary of that is consumer, whereas in the event of a refund it shall be an unlawful enrichment or atleast a wind fall for the manufacturer or dealer, though such dealer or manufacturer did not contribute a single penny against tax. Any agreement for refund of tax shall be contrary to public policy, contrary to the constitutional provisions and shall also be void under Section 23 of the Indian Contract Act. The constitutional requirement for levy ot tax is welfare of the society and not for a specific individual, hence any scheme for refund of sales tax shall be incapable of being enforced in court of law. The notification dated 6.5.1986 is a statutory notification being notified by the State of Rajasthan exercising powers conferred by Section 8(5) of the Central Sales Tax Act, 1956. It is applicable for the dealers having their place of business and manufacturing goods in the State of Rajasthan. Such dealers are entitled to claim partial exemption from the tax payable in respect of the sales of manufactured goods by them in the course of inter State trade or commerce by reduction @ 50% of the tax so payable or increased sales upto 50% and @ 75% of the tax so payable on increased sales made over and above aforesaid 50%. The exemption as aforesaid is subject to certain conditions referred in paras 1 to 4 of the notification. A threadbare reading of the notification makes it clear that to have benefit of partial exemption the dealer must have accurate determination of quantum of goods sold during whole accounting year and that can be settled by taking into consideration the quantum of goods sold within the State during accounting year; inter State sales i.e. goods sold in the course of inter State trade or commerce during the accounting year; and dispatches to other units like branch offices, depots or agents outside the State during the accounting year. This kind of dispatch is usually termed as 'branch transfers'. By having the facts noticed above, a percentage of inter State sales is required to be worked out as per the formulate prescribed. This kind of dispatch is usually termed as 'branch transfers'. By having the facts noticed above, a percentage of inter State sales is required to be worked out as per the formulate prescribed. An important aspect for such determination is that percentage of increase in inter State sales is to be assessed by keeping in mind the inter State sales available in the base year i.e. 1984-85 and that is to be compared with simultaneous decrease in branch transfers. The benefit of partial exemption under the notification dated 6.5.1986 can be availed only if there is decrease in the percentage of branch transfers with simultaneous increase in inter State sales. A analytical consideration of the notification makes it clear that partial exemption is allowed to the dealers concerned to enhance State revenue by promotion of inter State sales with simultaneous decrease in branch transfers. Suffice to mention that in the event of transfers of goods from one State to other State without effecting sale i.e. by way of branch transfer, shall not earn any revenue for originating State i.e. State of Rajasthan in the instant matter. On the other hand, if, the manufactured goods are transferred from State of Rajasthan to any other State by way of inter State sale, then that shall generate revenue for the State. The State Government allowed an incentive to the dealers on promotion of inter State sales by proportionate decrease in branch transfers with the object to have higher State revenue. It is also apparent that the inter State sale of the goods and the branch transfers of goods is absolutely within the domain of dealers and looking to this aspect partial exemption was allowed to get the dealers shifted towards inter State sales from the branch transfers and for this purpose they are supposed to change their mode of transaction of goods. The dealers by shifting to inter State sales with proportionate decrease in branch transfer assist the government to achieve the object of the notification dated 6.5.1986, the incentive in the form of partial exemption, therefore, is given to the dealers. An important aspect of the matter is that all the facts necessary to determine quantum of inter State sales, the branch transfers and the sale in the State of Rajasthan can be collected only at the end of the assessment year and not at its inception. An important aspect of the matter is that all the facts necessary to determine quantum of inter State sales, the branch transfers and the sale in the State of Rajasthan can be collected only at the end of the assessment year and not at its inception. The partial exemption which is to be given cannot be known at the beginning of the assessment year being based on several factors, a dealer, therefore, cannot proceed for sale with less rate of tax with assumption to have partial exemption at the end of the year. If the actual quantum of concession is not known to the dealer then in no case that can be applied with reduced tax liability. The stand taken by the respondents that the dealer should charge tax with reduced rates virtually amount to insist for doing something that cannot be done without having relevant facts which shall be coming on surface only at the end of assessment year. It is well settled that no one can be compelled to do something that is not possible to do. Much emphasis is given by the respondents about the law laid down by the Apex Court in the cases of Amrit Banaspati Co. Ltd. & Anr. v. State of Punjab & Anr., (supra) and Kanthi Enterprises & Ors. v. State of Karnataka & Ors. (supra). In these cases the Apex Court held that no law or order can be made for refund of a tax validly levied and further that exemption from tax can be made, if, the ultimate beneficiary is the consumer. True it is, in the instant matter the benefit of exemption given is retained by the petitioner and that has not been transferred to the consumer and in first glance it appears contrary to the concept of extending benefit of exemption to the consumer, but a little deep observation compels us to conclude otherwise. As already stated, under the notification dated 6.5.1986 incentive is given with a view to enhance inter State sales with a view to enhance State revenue in the form of sales tax and that object can be served with the cooperation of dealers only. The purpose of the notification can very well be failed, if the dealers do not act as desired by the State by increasing inter State sales and reducing branch transfers. The purpose of the notification can very well be failed, if the dealers do not act as desired by the State by increasing inter State sales and reducing branch transfers. The State Government only to have support of the dealers extended partial exemption to them. This incentive is given to the dealers by the State from its own revenue in the form of exemption to have a positive action by the dealers for shifting to inter State sale from branch transfers, as such, the notification dated 6.5.1986 though uses the term “partial exemption” but in fact is a “partial disbursement of State revenue” earned due to the efforts made by the dealers for its enhancement. In view of whatever stated above, these petitions for writ deserve acceptance, accordingly, the same are allowed. The initiation of impugned proceedings against the petitioner as per Section 26 of the VAT Act is declared illegal and the notices issued thereunder and orders made thereon are also declared illegal, hence are quashed. No order to costs.