R.K.Agrawal, J. - (1.) By means of the present petition under Article 226 of the Constitution of India the petitioner M/s. Mukund Lal Banarasi Lal seeks a writ, order or direction in the nature of cer-tiorari quashing the order dated May 27, 1991 passed by the Sales Tax Tribunal, Bench III, Agra, respondent No. 5, filed as annexure 6 to the writ petition. It further seeks a writ in the nature of mandamus declaring Section 12-A(2) of the U.P. Sales Tax Act, 1948 as introduced by the U.P. Sales Tax (Amendment and Validation) Act, 1991 to be ultra vires.
(2.) The brief facts giving rise to the present writ petition are as follows : The petitioner is a partnership firm, which is registered under the provisions of the U.P. Sales Tax Act, 1948 (hereinafter referred to "the Act"), as also the Central Sales Tax Act, 1956 and is engaged in the business of wholesale trade and also acts as a commission agent. It deals in foodgrains, rice, etc. For the assessment year 1977-78, under the U.P. Sales Tax Act, the petitioner disclosed purchases of rice amounting to Rs. 11,03,611.24 in the capacity of commission agent acting for and on behalf of ex-U.P. principal. The goods so purchased were despatched outside the State of Uttar Pradesh on the instruction of the ex-U.P. principals. However, at the time of making the purchases in question, the petitioner had issued declaration form III-C(1) to the selling dealer from whom it had made the purchases. According to the petitioner rice being a declared commodity under Section 14 of the Central Sales Tax Act, 1956, has been notified for being taxed at 4 per cent at the point of first purchase by the State Government. The petitioner claimed exemption on the purchases of rice in question, on the ground that it had made purchase for and on behalf of its ex-U.P. principals and, therefore, the purchases having been made during the course of inter-State trade or commerce is not liable to tax under Section 3-D of the Act. The petitioner relied upon a decision of this Court in Commissioner of Sales Tax v. Hanuman Trading Company [1979] 43 STC 408; 1979 UPTC 809. The assessing authority did not accept the claim of exemption put forward by the petitioner on the ground that it had issued declaration form III-C(1) and imposed tax under Section 3-D of the Act. However, the assessing authority had accepted the claim of the petitioner that the purchases in question, was made for and on behalf of the ex-U.P. principal. Feeling aggrieved, the petitioner preferred an appeal under Section 9 of the Act before the Assistant Commissioner (Judicial) Trade Tax, Manipuri. The appeal was allowed vide order dated September 24, 1982 holding that the petitioner was not liable to pay tax on the purchase of rice in question. The Commissioner of Sales Tax preferred an appeal before the Sales Tax Tribunal, Agra. During the pendency of the appeal Section 12-A(2)(a) was introduced by an Ordinance promulgated in the year 1990. The Ordinance was subsequently replaced by an Act, namely, the U.P. Sale Tax (Amendment and Validation) Act, 1991 (U.P. Act No. 28 of 1991). When the appeal came up for hearing before the Tribunal, it allowed the appeal of the Commissioner of Sales Tax and upheld the levy of tax on the purchases of rice in question, on the ground that in view of Section 12-A(2)(a) of the Act since the petitioner had issued declaration forms III-C(1), he would be deemed to be the first purchaser and liable to tax. The order dated May 27, 1991 passed by the Sales Tax Tribunal is under challenge in the present petition.
(3.) We have heard Sri Rajes Kumar, learned counsel for the petitioner and Sri S.P. Kesarwani, learned Standing Counsel appearing for the respondents.;