O.H.Mootham, C.J. - (1.) In this petition under Article 226 of the Constitution the petitioner challenges the validity of an assessment order dated 21-9-1957, made under the U. P. Sales Tax Act, 1943, (hereinafter called the Principal Act), and of a notice of demand which is undated but which it is common ground was issued on 22-9-1957.
(2.) The petitioner is a firm which carries on business in Agra in Cloth, supplies of which it obtains from places both within and outside the Uttar Pradesh. It is a registered dealer under Section 8A of the Act The tax purports to be levied I under a Notification No. ST/905x, dated 31-3-1956, and it is the validity of that notification which is the principal question which arises in this case. This notification was held to be invalid by this Court in Adarsh Bhandar v. Sales Tax Officer, Aligarh, 1957-8 STC 666: ( (S) AIR 1957 All 475) (A), but it is the case of the respondents that subsequent to the judgment in that case the notification has been validated by the U. P. Sales Tax (Amendment) Act, 1957 (U. P. Act No. XXIV of 1957).
(3.) It is necessary to refer shortly to certain statutory provisions. Prior to the coming into force of the U. P. Sales Tax (Amendment) Ordinance, 1956, U. P. Ordinance No. IX of 1956, (hereinafter referred to as the Ordinance), Sub-section (1) of Section 3A of the Principal Act empowered the State Government by a notification in the Official Gazette to declare that the turnover in respect of any goods shall not be liable to sales tax, save at such single point as the State Government may specify. Sub-section (2) of this section then provided that "(2) If the State Government makes a declaration under Sub-section (1) of this section it may further declare that the turnover of the dealer, who is liable to pay tax on the sale of such goods shall, in respect of such sale, be taxed at such rate as may be specified not exceeding one anna per rupee if the sale relates to goods specified below-- (Five classes of goods were then specified) and nine pies per rupee if it relates to any other goods," On 31-3-1956, the Ordinance was published in the Gazette. Section 4 of the Ordinance provided that, in lieu of Sub-section (2) of Section 3A of the Principal Act, two new sub-sections be substituted. The new Sub-section (2) read thus: (2) If the State Government makes a declaration under Sub-section (1), it may further declare that the turnover in respect of such goods shall be liable to tax at such rate not exceeding one anna per rupee as may be specified." The effect of this provision was therefore to abolish the limited list of goods in respect of which sales tax could be levied at the rate of one anna per rupee and to enable tax at the rate to be levied on all such goods as should be specified in a declaration made under Sub-section (1).;