- (1.) M. C. AGARWAL, J. These three revision petitions were decided by a common order dated October 8, 1984, and were dismissed. The question was whether certain purchases were made by the dealer in the course of inter-State trade or commerce. The Tribunal had held that the purchases were made on behalf of ex-U. P. principal in the course of inter-State trade or commerce. The revision petitions were dismissed following the judgment of this Court in Commissioner of Sales Tax v. Girdhari Lal Gomti Prasad (1984) 2 UPTC 914. In making the aforesaid purchases the dealer had issued form IIIC to the seller certifying that it had purchased the goods in question. By the U. P. Sales Tax (Amendment and Validation) (Second) Ordinance, 1990, section 12-A of the Act was amended by enacting sub-section (2) as under : " (2) Where any dealer claims that he is not liable to tax under section 3-D in respect of any transaction of purchases - (a) any declaration made or certificate issued by him admitting to be the first purchaser and accepting the liability to pay purchase tax, shall be conclusive evidence of his liability to pay the purchase tax in respect of the transaction specified in such declaration or certificate; (b) the burden of proving the existence of facts and circumstances on the basis of which he claims such exemption from liability shall lie upon him and, in particular, the dealer shall also be liable to disclose full particulars of the person from whom he has purchased the goods in such transaction of purchase; and (c) no such claim shall be accepted unless reasonable opportunity of being heard has been given to the person whose particulars are disclosed by such dealer. "
(2.) SUB-sections (3) and (4) of section 27 of the said Ordinance provided as under : " (3) Where before the commencement of this section any authority or court has, in any proceeding made any assessment, levy or collection of any tax or any order passed imposing any penalty or making any other demand, under the principal Act, or passed any order modifying, setting aside or quashing (wholly or in part) such assessment, levy, collection, penalty or demand and such assessment or other order becomes inconsistent with the provisions of the principal Act or the modifications issued thereunder as amended by this Ordinance then, subject to the provisions of sub-section (4) any party to the proceeding or the Commissioner of Sales Tax may within six months of the date of such commencement, make an application to such authority or court for review of the assessment or order and thereupon, such authority or court may review the proceeding and make such order, varying or revising the order previously made, as may be necessary to give effect to the provisions of the principal Act or the notifications as amended by this Ordinance. (4) The assessing, appellate or revising authority, as the case may be, may within a period of one year from the commencement of this section or within the period specified in section 22 of the principal Act, whichever expires later, make any rectification in any border passed by it where such rectification becomes necessary in consequence of the amendment of the principal Act or the notification issued thereunder by this Ordinance : Provided that no rectification which has the effect of enhancing the assessment penalty or other dues, shall be made unless the authority concerned has given notice to the dealer or person concerned of his intention to do so and has allowed him a reasonable opportunity of being heard. " In pursuance of the aforesaid Ordinance the Commissioner moved applications for review of the aforesaid order of this Court on October 29, 1990, contending that by virtue of the provision of sub-section (2) of section 12-A the dealer would be deemed to be the first purchaser of the goods and hence the aforesaid judgment of this court be reviewed. The aforesaid Ordinance was replaced by the U. P. Sales Tax (Amendment and Validation) Ordinance, 1991, whereby the same amendment in section 12-A was repeated and sub-section (3) of section 30 of the new Ordinance allowed the Commissioner to make an application by June 30, 1991 and sub-section (4) whereof extended the period of one year from the commencement of that provision within which the rectification could be made. This Ordinance was replaced by U. P. Act No. 21 of 1991 in which the provisions of the Ordinance were repealed. Thereafter a second application dated July 9, 1991, seeking the review of the aforesaid order was made.
(3.) I have heard the learned Standing Counsel, who contended that in view of the insertion of sub-section (2) of section 12-A, the order of this Court has become erroneous because the dealer having issued from IIIC for the purchases in question, there is conclusive proof that he is the first purchaser. I have heard the learned Standing Counsel. The first application dated October 29, 1990, become infructuous because the Ordinance lapsed. Therefore, the first application dated October 29, 1990 is rejected.;