R.B.Misra, J. - (1.) Heard Sri M. Manglik, learned counsel for the revisionist and Sri B.K. Pandey, learned Standing Counsel for the respondent/Commissioner, Trade Tax/Revenue. 1. The applicant/revisionist deals a business in purchase and sale of metals. For the assessment year 1990-91, the assessment was made at the rate of 2.5. per cent on the taxable turnover. The assessing officer subsequently issued a notice under Section 22 of the U.P. Trade Tax Act, 1948 (in short called as "the Act") on the ground that the rate of tax was wrongly applied by mistake, and he passed an order under Section 22 on November 25, 1995 imposing the tax at the rate of 5 per cent along with interest payable under Section 8(1) of "the Act". The first appeal under Section 9 of "the Act" was dismissed. The second appeal against the above order was also dismissed on April 28, 2000 on the following grounds : 2. As per Notification No. ST-2-6075/X-6(9)/83-U.P. Act 157 48-Or.der-83 dated October 1, 1983 the turnover of all kinds of minerals, ores, metals, scraps and alloys including sheets and circles used in the manufacture of brasswares, except those included in any other entry or any other notification issued under the Act was taxable at the rate of 2 per cent. As per notification No. ST-2-1447/XI-10(l)-80-U.P. Act-XV/48-Order-90 dated June 30, 1990 published in Uttar Pradesh Gazette, Extraordinary, Part 4, Section (Kha) dated July 1, 1990 the aforesaid entry with effect from July 1, 1990 was substituted as under : (a) All kinds of minerals M or I 4 per cent. (b) AH kinds of ores, metals scraps and alloys, including sheets and circles used in the manufacture of brasswares, except those included in any other entry or any other notification issued under the U.P. Sales Tax Act, 1948. (B) It be pertinent to mention here that in clause (b) (second category) of the aforesaid substituted notification there was no mention about the rate of tax or any point of levy of tax. (C) Thereafter again since April 1, 1992 the aforesaid entry was substituted and the rate of tax was prescribed at the rate of 2 per cent at the point of M or I, by Notification No. ST-2-1225/XI-9(94)/91-U.P. Act-15-48-Order-92 dated March 31, 1992.
(2.) It has been contended on behalf of the applicant/revisionist that the present controversy was beyond the purview of Section 22 of the Act and there cannot be any liability of interest also.
(3.) Under identical circumstances, a division Bench of this Court in the case of Ganesh International v. Assistant Commissioner since reported in [2001] 124 STC 600 ; 2000 UPTC 1097 has observed as below : "The argument of the learned counsel for the petitioners is that the period from July 1, 1990 to October 23, 1990, they had to deposit tax at the rate of 2 per cent. On the other hand the argument of the learned Standing Counsel is that the corrigendum dated October 23, 1990 was issued because there was a mistake in the notification dated June 30, 1990. Hence, he argued that there may be presumption that the petitioners had to pay tax at the rate of 4 per cent. We cannot accept the argument of learned Standing Counsel. The proviso to Section 25 of the U.P. Trade Tax Act states : "Provided that no notification having the effect of increasing the liability to tax of a dealer shall be issued with retrospective effect under this section", Even apart from this proviso, the general legal principle is that ordinarily a delegated legislation cannot be made with retrospective unless the statute permits. A notification fixing the rate of tax is a piece of delegated legislation and hence it cannot be with retrospective effect unless there is a clear provision in the statute in this connection.";