Amreshwar Pratap Sahi and Ravindra Nath Mishra-II, JJ. - (1.) Heard Sri Tarun Gulati, learned counsel for the petitioner and Sri H.P. Srivastava, learned Additional Chief Standing counsel for the respondent No.1 and 2.
(2.) Issue notice to the learned Advocate General.
(3.) This Court had called upon the respondents to obtain instructions under the order dated 13.12.2016 extracted here-in-below:- Heard Shri Tarun Gulati, learned counsel for the petitioner and Shri H.P. Shrivastava, learned Addl. Chief Standing Counsel for the respondent/State. This petition questions the legality of the imposition of tax of entry on goods as inserted by way of an amendment in the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007 and Uttar Pradesh Tax on Entry of Goods into Local Areas (Amendment) Act, 2016 (UP Act No.18 of 2016) notified on 16th September, 2016. Apart from the other contentions raised, the two primary contentions that have been advanced before the Court are to the effect that this imposition of tax on specified goods as per Section 4A is discriminatory, inasmuch as, the tax is being imposed only on goods being brought from outside the State through e-commerce or online purchase. The challenge is that the mode of transaction cannot be the foundation or basis of such imposition, inasmuch as, the constitution bench judgment in the case of M/s Jindal Stainless Ltd. & Anr. v. State of Haryana & Ors. and other connected appeals - 2016 SCC OnLine SC 1260 has dealt with the matter and [2] in view of the ratio of the aforesaid decision such discrimination being practised by the State renders the provisions of Section 4A ultra vires as being violative of Articles 14, 286 & 304(a) of the Constitution of India. The second limb of the argument on the constitutionality and validity of such imposition is being advanced on the ground that by virtue of the 101st amendment to the Constitution vide notification dated 08th September, 2016, Entry 52 from List II of the VIIth schedule has been completely omitted, and by virtue of Clause-19 of the said notification namely the Constitution Amendment Act, 2016, only such laws were saved for the period of one year that existed immediately before the commencement of the said act. The contention is that the impugned enactment has been notified on 16th September, 2016 and consequently on the date of such notification, the absence of legislative competence was writ large as Entry 52 of List II had already been deleted and consequently, the imposition of such tax under an incompetent legislation would be impermissible. To substantiate his submissions Shri Gulati has invited the attention of the Court to the Division Bench judgment of the Patna High Court in the case of M/s Instakart Services Pvt. Ltd. v. State of Bihar- Civil Writ Jurisdiction Case No. 6155 of 2016 along with other connected appeals decided on 27th September, 2016 . Apart from this, the imposition of such entry tax in the State of Uttarakhand has also been assailed in W.P.M.S. No.432 of 2016 by the same petitioner where an interim order has been passed on 16th March, 2016. Shri Gulati, however, submits that in addition to the aforesaid issues raised and considered by the two High Courts there is a peculiar element in the present case where the issue of discrimination as also the issue of legislative competence is involved. He, consequently, prays for an interim relief. The petition has been opposed by the State. In view of the contentions so raised it would be appropriate that the learned counsel for the State is called upon to receive its instructions on behalf of the State and assist the Court on Monday i.e. on 19.12.2016. List on 19.12.2016. A copy of the order be given to the learned Chief Standing Counsel for necessary compliance today. ;