- (1.) Heard learned counsel for the parties. Seven assesses in this petition under Article 32 of the Constitution are running hotels, restaurants and canteens which are eating places within the city of Visakhapatnam in the State of Andhra Pradesh. Until the 46th Amendment of the Constitution became affective, the supplies which have been made by these eating houses to consumers were not treated as sale assessable to taxon account of decisions of this court. The 46th Amendment brought about a change in the basic position by treating such transactions as assessable for tax by treating them as sales.
(2.) The 46th Amendment came into force with effect from 2/02/1983, and the relevant provisions of S. 6 of the Amending Act provided; "Notwithstanding anything contained in Ss. 1 may supply of a nature referred to therein shall be exempted from the aforesaid tax (a) where such supply has been made by any restaurants or eating houses (by whatever name call) at any time on or after the 7th day of September, 1978 and before the commencement of this Act and the aforesaid tax has not been collected of such supply on the ground that no such tax could have been levied or collected at that time or (b). . . . . . provided that the burden of proving that the aforesaid tax was not collected of may supply of the nature referred to in clause (a). . . . . . . . . . . shall be on the person claiming the exemption under this sub-section. "
(3.) On the basis of the said 46th Amendment, the Andhra Pradesh General Sales Tax Act was amended and amending provision came into force on 15/09/1985 with a corresponding provision as has been extracted from the 46th Amendment of the Constitution. The effect of the said amendment in the State Act, therefore, was that the benefit contemplated by the 46th Amendment was extended upto the date the State Legislation and this position is not dispute before us by learned counsel appearing for State. As the law stands, the petitioners before us are to satisfy the designated authority that no tax had been collected before the 46the Amendment or for the matter of that prior to the amendment of the State legislation, we find from the record that no such opportunity was extended to the petitioners when tax was levied.;