S.C. Manchanda, J. - (1.) 1. This is a writ petition under Article 226 of the Constitution by the asses-see directed against the order of the Judge (Revisions) Sales Tax, U. P. Lucknow dated the 6th February 1961 and the order of the Sales Tax Officer dated the 2nd of November 1957, directing that the sum of Rs. 1397 shall be kept in deposit and not refunded and that the petitioner should deposit a further sum of Rs. 57.11 P. under Section 8-A (4) of the U.P. Sales Tax Act (hereinafter referred to as the Act). The prayer is for the quashing of the aforesaid two orders and for a writ of mandamus or any other appropriate writ requiring the respondent, to refund the amount of Rs. 1397 and the sum of Rs. 57.11 P. realised under Section 8-A(4) of the Act.
(2.) THE material facts are these: The petitioner is a firm carrying on business, inter alia, in food-grains and oil seeds at Gola Gokarannath in the district of Lakhimpur Kheri. The sale of food-grains was not taxable in U. P. under the U.P. Sales Tax Act before April 1, 1956. From April 1, 1956, by notification No. ST- 909/X dated 31st March 1956 sales of foodgrains were made taxable at 6 pies per rupee at all points of sales. By notification No. ST-6068/S-1097-56 dated 30th of September, 1956, foodgrain dealers were given the option to obtain exemption subject to payment of fee on slabs of turnover and by notification No. ST-7048/X-1097-55, dated 5-1-1957, retrospective effect was given from 1-4-1956, to the aforementioned notification dated 30-9-1956. The petitioner had realised sales tax of Rs. 2055 on a turnover of Rs. 65,792 of foodgrains for the first two quarters of 1956-57 from his customers. After the promulgation of the aforementioned notification dated 30-9-1956, the petitioner applied and obtained the benefit of exemption on his turnover for the entire year 1956-57, after paying the exemption fee of Rs. 658. Out of the sum of Rs. 2055 which had been realised by the assessee, the Sales Tax Officer by his order dated 2nd November 1957, directed that the amount of Rs. 658 exemption fee would be credited towards the exemption fee and the balance of the sum of Rs. 1397 will be kept in deposit under Section 8-A(4) of the U.P. Sales Tax Act. The assessee was further directed to deposit Rs. 57.11 on the sale of cotton under Section 8-A(4) of the Act. The petitioner filed a revision from the said order contending, inter alia, that Section 8-A(4) of the Act under which the order of the Sales Tax Officer was passed was ultra vires. The Judge (Revisions), however, held, relying upon the decision of his predecessor that the provisions of Section 8-A(4) were intra vires. Hence, this petition at the instance of the assessee. The question of the vires of Section 8-A(4) of the Act had come up for consideration in a reference under the Sales Tax Act and upon a difference of opinion, the matter was referred to me as the third Judge. I held, in view of the decision of the Supreme Court in R. Abdul Quader and Co. v. Sales Tax Officer, Second Circle, Hyderabad (1964) 15 STC 403 = (AIR 1964 SC 922) where a similar provision in Section 11 (2) of the Hyderabad General Sales Tax Act was declared to be ultra vires and the decision of the Madras High Court in Indian Aluminium Co. v. The State of Madras (1962) 13 STC 9(57 = (AIR 1963 Mad 116) was overruled, that it was not possible to come to any other conclusion other than that Section 8-A(4) of the Act was also ultra vires Accordingly, the question referred was answered in favour of the assessee. Against that order, I am informed by the learned Junior Standing Counsel that an appeal to the Supreme Court has been filed and is pending. Since that decision of this Court declaring Section 8-A(4) of the Act to be ultra vires in a reference under the Sales Tax Act, the Supreme Court has ruled in K. S. Venkataraman and Co. (P) Ltd. v. State of Madras, (1966) 60 ITR 112 = (1966) 17 STC 418 = (AIR 1966 SC 1089), that the question of the vires of a provision of the Act cannot be adjudicated in any proceedings arising under that very Act in which the impugned provision finds a place. Therefore, in view of the Supreme Court decision in Venkataraman's case (1966) 60 ITR 112 = (1966) 17 STC 418-(AIR 1966 SC 1089), it may not be possible to hold that the view taken by this Court on the question of the vires of Section 8-A(4) is final and binding. The learned junior Standing counsel has, therefore, pressed upon me to decide the question of the vires of Section 8-A(4) de novo after considering the decision of the Gujarat High Court in Ramgopal and Sons v. Sales Tax Officer. Surat, (1965) 16 STC 1005 (Guj), where the aforesaid decision of the Supreme Court in (1964) 15 STC 403 = (AIR 1964 SC 922) (supra) has been distinguished and the provisions of Section 12-A(4) of the Bombay General Sales Tax Act were declared to be intra vires.
(3.) I have considered this decision but do not find any good and sufficient reason to take a different view from what I had earlier taken in the matter which was referred to me as a third Judge in STR No. 1639 of 1956 (All) Commr. of Sales Tax v. Ganga Sugar Corporation decided on 13-11-1964. In (1964) 15 STC 403 = (AIR 1964 SC 922) (supra), the Supreme Court was called upon to interpret Section 11(2) of the Hyderabad General Sales Tax Act which according to the learned junior Standing counsel is worded very widely as compared to Section 12-A (4) of the Bombay General Sales Tax Act and Section 8-A(4) of the U. P. Sales Tax Act, and therefore the decision of the Supreme Court should be confined to the vires of the provision of the Hyderabad General Sales Tax Act. In order to test this contention it will be advisable to read the three relevant provisions: "Section 11(2) of the Hyderabad General Sales Tax Act: "Notwithstanding anything to the contrary contained in any order of an officer or tribunal or the judgment decree or order of a Court, every person who has collected or collects on or after 1st May, 1950, any amount by way of tax "otherwise than in accordance with the provisions of this Act", shall pay over to the Government, within such time and in such manner as may be prescribed the amount so collected by him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue," Section 12A(4) of the Bombay Sales Tax Act: "If any person collects any amount by way of tax in contravention of the provisions of Sub-section (1) or (2) or if any registered dealer collects any amount by way of tax in excess of the amount payable by him under this Act the amount so collected shall, without prejudice to any prosecution that may be instituted against such person or dealer for an offence under this Act be forfeited to the Provincial Government and such person or dealer, as the case may be, shall within the prescribed period, pay such amount into a Government treasury and in default of such payment the amount shall be recovered as an arrear of land revenue". Section 8-A(4) of the U. P. Sales Tax Act: "Without prejudice to the provisions of Clause (g) of Sub-section (2) of Section 14, the amount charged by any person as tax on sale of any goods, shall, notwithstanding contained in any other provision of this Act, be deposited by him in Government treasury within such period as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof," ;