- (1.) WE have heard Shri Aloke Kumar, learned counsel appearing for the petitioner. Shri C.B. Tripathi, standing counsel appears for the State respondent. In this writ petition the petitioner has challenged the constitutional validity of the Uttar Pradesh Tax on Entry of Goods Into Local Areas Act, 2007. The petitioner has also challenged the assessment orders passed by the competent authorities, levying entry tax under the Act, and has prayed for restraining the respondents from collecting entry tax in pursuance of the Act.
(2.) A bunch of writ petitions led by Writ Tax No. 1484 of 2007 (ITC Limited v. State of U.P. : [2012] 48 VST 281 (All.)), was finally decided on December 23, 2011. The operative portion of the judgment, by which the constitutional validity of the U.P. Tax on Entry of Goods Into Local Areas Act, 2007 was upheld, and the writ petitions were dismissed, is quoted as below (pages 388 and 389 in 48 VST): "151. For the reasons given as above, we hold that the State of U.P. did not lack legislative competence in enacting U.P. Tax on Entry of Goods into Local Areas Act, 2007, imposing entry tax on the entry of scheduled goods into the local areas for consumption, use or sale thereunder. The provisions of the Act patently and facially indicate and that there are sufficient guidelines and guarantees under the Act for ensuring that the entire amount of entry tax collected and credited to the U.P. State Development Fund, is utilised only for the purposes of its reimbursement to facilitate the trade, commerce and industry. The State Government has also established that the entire amount of entry tax is by way of reimbursement/recompense to the trade, commerce and industry, in the local areas of the State of U.P. provides quantifiable/measurable benefits to its payers. The levy under the Act, 2007 is also not discriminatory, unreasonable or against public interest. The levy of entry tax under the Act, therefore, does not violate the freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution of India. Section 17 of the Act validating the amount of entry tax levied, assessed, realized and collected under the U.P. Tax on Entry of Goods Act, 2000, is also valid and authorises the State to keep the entire amount, for the purposes of its utilisation for facilitating trade, commerce and intercourse in the local areas of the State. 152. We may observe by way of clarification that in these writ petitions we have confined our enquiry to the constitutional validity of the U.P. Tax on Entry of Goods into Local Areas Act, 2007, and whether the entry tax is compensatory in nature, which does not violate the freedom of trade, commerce and intercourse under article 301 of the Constitution of India. We have not examined the other issues, namely, the validity of the notices, assessments, rebates, exemption and the liability of the traders, and manufacturers of the scheduled goods to pay entry tax. All other questions, will remain open to be considered by the competent authorities under the Act in accordance with law. 153. All the writ petitions are consequently dismissed. The interim orders are discharged."
(3.) THE present writ petition was separated from the bunch on a mention made that the petitioner would challenge the assessment order under the Act and other issues raised in the writ petitions in accordance with the law. Some of the writ petitioners of the batch of writ petitions including Indian Oil Corporation Ltd., aggrieved by the judgment of the High Court in ITC Limited : [2012] 48 VST 281 (All.), have filed special leave petitions registered as SLP (C) No. 324 -327/2012, in which on January 17, 2012 the apex court has passed an interim order as follows: "The respondent/State has levied entry tax on import of crude oil into the State under the provisions of the U.P. Tax on Entry of Goods into Local Areas Act, 2007 (hereinafter referred as "the U.P. Act, 2007"), the vires of which has been upheld by the Division Bench of the High Court of judicature of Allahabad vide its order dated December 23, 2011 in Writ Tax No. 1483 of 2007 and connected matters. Several assessees have approached this court being aggrieved by the orders passed by the Allahabad High Court in the aforesaid writ petitions. While considering the request made by some of the petitioners/assessees, we have passed conditional interim orders dated January 10, 2012 and January 13, 2012. On a request made by learned Solicitor General, we had separated these special petitions, though they were posted before the court on the previous dates of hearing. While doing so, after hearing Shri R.F. Nariman, learned Solicitor General, appearing for the petitioners, we had passed the following order: 'Shri R.F. Nariman, learned Solicitor General, appearing for the petitioner in this matter, would contend that the respondents have issued demand notices, inter alia, demanding the payment of entry tax under the provisions of U.P. Tax on Entry of Goods Into Local Areas Act, 2007 for the assessment periods 2007 -08, 2008 -09, 2009 -010 and 2010 -11, without there being any quantification by way of assessments for all these years. Faced with this situation, learned senior counsel, Sh. K.K. Venugopal, appearing for the respondent -State would submit that he will file an appropriate affidavit indicating whether the petitioners herein have filed the monthly or annual returns for the assessment years in question and whether the Department has completed assessments or the basis on which the demand notices are issued. To facilitate them to file the said affidavit, we adjourn this matter to Thursday, i.e., January 12, 2012.' On the last date of hearing, learned senior counsel appearing for the petitioners had submitted before us that there was no basis for the State to issue demand notices for the assessment years 2008 -09, 2009 -10 and 2011 -12. According to the learned senior counsel, the State and its authorities have not even quantified tax liability by way of assessments for all these years. Taking that into consideration, we had requested Shri K.K. Venugopal, learned senior counsel, appearing for the respondent/State to inform us the basis on which the demand notices have been issued to the assessees for the aforesaid assessment years. The State has now filed affidavit dated January 11, 2012 and additional affidavit dated January 16, 2012, and in the said affidavits they have frankly admitted that for the period prior to 2007 -08, orders of assessment have been completed and the demand notices have been issued. Therefore, the contention of the learned Solicitor General that there was no basis for issuing demand notices; demanding taxes for the aforesaid period, has no merit. In so far as the assessment for the periods of 2008 -09, 2009 -10 and 2010 -11 is concerned, the State has admitted that the assessees, for the aforesaid period, have filed monthly returns but have not accepted the liability to pay the entry tax on the import of crude oil. It is also stated that the assessing authority has issued a pre -assessment notice under section 9(4) of the U.P. Act, 2007. It is also brought to our notice at the time of hearing of this petition that on the request, made by the assessee, the matter now stands adjourned for the years 2008 -09, 2009 -10 to January 23, 2012 and for the assessment year 2011 -12, is adjourned to January 30, 2012. A reading of the affidavit, so filed by the respondent -State, would indicate that for the aforesaid period, quantification of the tax liability is yet to be determined, and therefore, it may not be permissible for the State to issue any demand notices demanding tax from the assessees for the aforesaid assessment years. However, it is now open to the State and its authorities to quantify the tax liability, either based on the returns filed by the assessee or on the basis of best assessment order, if they so desire, and if the Act so permits for the assessment years 2008 -09, 2009 -10 and 2010 -11. After such quantification, the State is at liberty to issue appropriate demand notices. The learned Solicitor General, Shri R.F. Nariman, submits that the assessees stand unique in its own way and the assessee should not be treated like any other assessee(s). We are not inclined to accept the request of the learned Solicitor General. We say so for the reason that all the dealers under the Act, unless they are exempted from payment of tax under the Act, should be treated equally and further, the uniformity even while passing the interim orders is the hallmark of this justification. Therefore, the assessee is also a dealer under the Act and the said assessee is to be treated in the same manner as has been done in the case of the other assessees under the Act. The learned Solicitor General, Shri R.F. Nariman has also brought to our notice the orders passed by this court in the case of Bongaigaon Refinery & Petrochemical Ltd. (Now Indian Oil Corporation Limited) v. State of Assam, wherein this court has granted an interim stay of the demand notices issued by the assessing authority by directing the assessee to deposit twenty five per cent of the outstanding amount and then has modified it by increasing the deposit to be made approximately to thirty three per cent At this stage, we only to say that the interim order(s) are not precedents. It can be modified/varied in the facts and circumstances of each case. Lastly, learned Solicitor General submits that the assessee has not filed his monthly return for some of the months for the assessment years of 2008 -09, 2009 -10 and 2010 -11. If that is so, the assessee is permitted now to file their monthly returns for the assessment years of 2008 -09, 2009 -10 and 2010 -11 in four weeks time from today. After the expiry of such period, the assessing authority is directed to complete the assessment(s) for the aforesaid period and issue demand notices, accordingly. The petitioner is also granted six weeks' time thereafter for complying with the demand notice(s) issued by the assessing authority in accordance with the orders passed by us on January 11, 2012 and January 13, 2012 in Vikram Cement v. State of U.P. in Special Leave Petition (Civil) No. 33 of 2012. Ordered accordingly. SLP (C) No. 324 -326/2012 (Gail (India) Ltd. v. State of U.P.) The learned Solicitor General, Shri R.F. Nariman, has produced the details of entry tax assessed and demands pending for the assessment years 2000 -01 to 2009 -10. On instructions, he submits that the petitioners herein have paid substantial amount by way of entry tax to the Department. It is also his case that what now requires to be paid is approximately 100 crores only. It is also brought to our notice that for the assessment years 2000 -01 to 2009 -10, the petitioners have filed appeals/revisions before the High Court/statutory authorities and those appeals are pending for consideration. Now, a request is made that the petitioners should be permitted to make an application/petition for grant of ad interim stay of the demand notices issued by the respondents -State for the assessment years 2000 -01 to 2009 -10. Shri K.K. Venugopal, learned senior counsel appearing for the State opposes the request made by the learned Solicitor General, Shri R.F. Nariman. Taking into consideration respective contentions canvassed by the learned counsel for the parties, we are of the view that the request of the learned Solicitor General is reasonable and requires to be accepted since it is not causing any prejudice to the Department. Accordingly, we grant liberty to the petitioners/assessees to make appropriate application/petition before the appellate authorities/revisional authorities/High Court within four weeks' time from today. If such an application is filed within the time granted by this court, the appellate authority/revisional authority/High Court will consider the same in accordance with law within four weeks thereafter. Shri Sunil Gupta, learned senior counsel appearing for the State, on instructions would submit that the respondents shall not resort to any recovery proceedings against the petitioners till the disposal of the applications/petitions filed by the assessee. The same is placed on record. SLP (C) No. 196/2012 (Moser Beer India Ltd. v. State of U.P.) Notice to the respondents. The learned counsel appears and accepts notice on behalf of all the respondents. Leave granted. In this civil appeal, the appellant is questioning the correctness or otherwise of the common judgment and order passed by the High Court of judicature of Allahabad in Writ Tax No. 1482 of 2007, etc., dated December 23, 2011. In the writ petition filed, the appellant had questioned the constitutional validity of the U.P. Tax on Entry of Goods Into Local Areas Act, 2007 ("the U.P. Act, 2007", for short). We have heard learned counsel for the parties on the prayer made for grant of interim relief and also perused the records. We are not inclined to grant the blanket stay order as prayed for by the appellant. Accordingly, we pass the following order: The operation of the impugned judgment and order is stayed subject to the appellant in each case depositing 50 per cent of the accrued tax liability/arrears under the U.P. Act, 2007 and furnish bank guarantee for the balance amount within four weeks from today. It goes without saying, that the aforesaid deposit shall be made after adjusting the amount(s) paid or deposited during the pendency of the writ petition before the High Court. The appellant is directed to keep the bank guarantee(s) alive during the pendency of these appeals. The amount(s) so deposited/paid and the bank guarantee(s) furnished is subject to the result of these appeals. The appellant shall also deposit 50 per cent of the tax liability/arrears, including interest and penalty, and furnish bank guarantee for the balance amount as and when demand notices are issued under the U.P. Act, 2007 for the past period. In default, the interim order(s) granted by this court shall automatically stands vacated. In case the State of Uttar Pradesh loses the matter at the time of final hearing, it shall refund to the appellant the amount deposited with interest at the rate which may be fixed by this court. It is also made clear that in case the appellant loses the matter, the Department is at liberty to encash the bank guarantee(s) offered by the appellant and also issue demand notice(s) demanding interest, and penalty on the amount outstanding as arrears of tax. The appellant shall continue to pay the tax at the prevailing rate(s) for the future period as applicable to each one of the assessees. In view of the interim order passed by us, we expect that the Department shall not resort to coercive steps to recover the amounts due to the Department. If for any reason, the appellant in this appeal wants to seek statutory remedies provided under the Act against the assessment orders, best judgment assessment orders, provisional assessment orders, appeals or revisions before appropriate forum, they are at liberty to do so and if such appeals or revisions are filed, we direct the statutory authorities to consider the same in accordance with law. We also reserve liberty to the respondent -State of U.P. to verify the veracity of the statement made by the appellant in the affidavit filed insofar as the tax burden being passed on the consumers directly or indirectly. Liberty is granted to the respondents to file appropriate application before this court for modification of the interim orders granted, if for any reason, the appellant in this case has passed on the tax burden on the consumers.";