DWIVEDI, J. - (1.) IN all these petitions there arises a single question : "Has the State Legislature power to enact section 17 of the U.P. Sales Tax (Amendment and Validation) Act, 1971 ?"
(2.) IT is necessary to state the background legal position for a proper understanding of the question. Section 8-A(2)(a) of the U.P. Sales Tax Act, 1948 (hereinafter called the principal Act) provided that no person who was not a dealer registered under the principal Act should, in respect of any sale or purchase made by or through him, realise from any person any amount by way of sales tax or any amount in lieu of sales tax. It further provided that no dealer registered under the principal Act shall in respect of any sale or purchase made by or through him, realise from any person other than a person to whom goods are sold by him any amount by way of sales tax or any amount in lieu of sales tax by giving it a different name or colour. Clause (b) of section 8-A(2) provided that where sales tax was payable on any turnover by a dealer including a commission agent or any of the persons mentioned in Explanation 2 of section 2-C of the principal Act, the dealer may recover an amount equivalent to the amount of sales tax payable from the person to whom the goods are sold by him, whether on his own behalf or on behalf of the principal. Section 8-A(4) provided that "the amount realised by any person as tax on sale of any goods shall, notwithstanding anything contained in any other provision .., be deposited by him in a Government treasury within such period as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof." The Supreme Court has held that the State Legislature has no power to enact section 8-A(4) (see Commissioner of Sales Tax v. Ganga Sugar Corporation Limited ([1970] 25 S.T.C. 155 (S.C.).)). Thereafter the State Legislature repealed section 8-A(4) and inserted section 29-A in the principal Act. Section 29-A provided that notwithstanding anything contained in the principal Act or in any other law or in any judgment, decree or order of any court where any amount is either deposited or paid by any dealer or other person under sub-section (4) or sub-section (5) of section 8-A, such amount or any part thereof "shall, on a claim being made in that behalf in such form and within such period as may be prescribed, be refunded to the person from whom such dealer or the person had actually realised such amount or part, and no other person." It appears that the tax realised and deposited by the petitioners was more than what was actually due by them. When they claimed refund of the excess, the Sales Tax Officer passed an order to the effect that as the amounts were realised from the customers, they would not be entitled to any refund "in terms of the law as it stands at present". Section 29-A shields the order of the Sales Tax Officer. The petitioners filed petitions challenging the constitutionality of section 29-A. The cases came up for hearing before a Division Bench. Before the Bench, the petitioners relied on Ashoka Marketing Limited v. State of Bihar ([1970] 26 S.T.C. 254 (S.C.); A.I.R. 1971 S.C. 946.). The standing counsel, on the other hand, relied on a Division Bench decision of the Lucknow Bench of the court in Messrs Kasturi Lal Har Lal v. The State of Uttar Pradesh (Writ Petition No. 849 of 1970 decided on 13th July, 1970.). The present petitions were accordingly referred to a larger Bench. Hence they are before us now.
(3.) IN the meanwhile the State Legislature enacted the U.P. Sales Tax (Amendment and Validation) Act, 1971. Section 15 of this Act substitutes section 29-A. The substituted section 29-A now reads : "(1) Where any amount is realised from any person by any dealer purporting to do so by way of realisation of tax on the sale of any goods to such person, such dealer shall deposit the entire amount so realised into the Government treasury, within such period as may be prescribed, notwithstanding that the dealer is not liable to pay such amount as tax or that only a part of it is due from him as tax under this Act. (2) Any amount deposited by any dealer under sub-section (1) shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives, and the deposit shall discharge such dealer of the liability in respect thereof to the extent of the deposit. (3) Where any amount is deposited by any dealer under sub-section (1), such amount or any part thereof shall, on a claim being made in that behalf in such form as may be prescribed, be refunded, in the manner prescribed, to the person from whom such dealer had actually realised such amount or part, or to his legal representatives, and to no other person : Provided that no such claim shall be entertained after the expiry of three years from the date of the order of assessment or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later. Explanation. - The expression 'final order on appeal, revision or reference' includes an order passed by the Supreme Court under article 32, article 132, article 133, article 136 or article 137, or by the High Court under article 226 or article 227 of the Constitution." Section 17, with which we are directly concerned, provides : "(1) Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, every payment or deposit made by any dealer under sub-section (4) or sub-section (5) of section 8-A, as it stood prior to its omission by this Act, shall be deemed to be a deposit made under sub-section (1) of section 29-A as substituted by this Act as if the latter-mentioned section were in force at the time of such payment or deposit, and accordingly be governed by the provisions of that section with the modification that in the proviso to sub-section (3) thereof, for the words 'three years from the date of the order of assessment or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later', the words 'three years from the date of the order of assessment or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof or one year from the commencement of the Uttar Pradesh Sales Tax (Amendment and Validation) Act, 1971, whichever is latest', shall be deemed to be substituted and accordingly, - (a) no suit or other proceeding shall be entertained or continued in any court or before any authority for the refund of any amount referred to in this sub-section; and (b) no court shall enforce any decree or order directing the refund of any such amount." ;