- (1.) THE petitioner was assessed to sales tax for the assessment year 1967-68 under the Central Sales Tax Act by an assessment order dated 5th October, 1968. In that assessment order the Sales Tax Officer included a direction appropriating a sum of Rs. 7,505.25 under section 8-A(4) of the U.P. Sales Tax Act and called upon the petitioner to pay that amount. The petitioner prays for a writ of certiorari against that order. It is now settled law that the provisions of section 8-A(4) are ultra vires. The Sales Tax Officer was not competent to appropriate the aforesaid amount purporting to exercise the power under section 8-A(4) and to make the consequential demand upon the petitioner.
(2.) THE assessment order discloses that it was pointed out to the Sales Tax Officer that this Court had declared section 8-A(4) ultra vires and yet he proceeded to make the order of appropriation. We have examined the reasons given by him for not following the decision of this Court and giving effect to it. We are unable to hold that any of these reasons can be sustained. It is beyond dispute that all Sales Tax Officer exercising jurisdiction within the territories of the State of Utter Pradesh are subject to the superintendence of this Court envisaged by Article 227 of the Constitution and are bound by the declarations of law proceeding from this Court. One of the reasons given by the Sales Tax Officer is that although the Court had declared section 8-A(4) ultra vires, the provision still continues on the statute book. It is plain that the officer has not appreciated the legal effect of a declaration by this Court that a statutory provision is ultra vires. The result of such declaration is in law to delete that provision from the statute book wherever that declaration is binding and has the force of law. The Sales Tax Officer has pointed out that a special appeal has been filed against the judgment of this Court declaring section 8-A(4) ultra vices. That, in our opinion, is not a ground for not giving effect to the declaration. The filing of an appeal dots not render inoperative the declaration of law. As long as the judgment of this Court remains undisturbed, the Sales Tax Officer is bound to give effect to the declaration, and he cannot take cover behind the filing of an appeal in order to relieve himself of his obligation to do so. The third reason adduced by the Sales Tax Officer is that the petitioner had recovered the amount, sought to be appropriated under section 8-A(4) from its constituents. That again does not justify the action taken by the Sales Tax Officer. If he had no jurisdiction to make the appropriation, it was immaterial that the petitioner had recovered the amount from its customers. As regards the last remaining consideration to which the Sales Tax Officer has adverted, we hold that it was not necessary for the petitioner to have approached this Court in the first instance for a direction restraining the Sales Tax Officer from making the appropriation under section 8-A(4). The petitioner was entitled to draw the attention of the Sales Tax Officer to the declaration of low made by this Court and to rely upon it when contending that the Sales Tax Officer was not competent to make the appropriation. It is only now after the Sales Tax Officer refused to accept that plea that the petitioner needed to approach this Court for an order or direction under Article 226 of the Constitution. We cannot say that the attitude adopted by the Sales Tax Officer was justified from any point of view. It is unnecessary, however, to pursue the matter further in view of the statement of Sri R. M. Sahai learned Standing Counsel for the respondents, that the State Government has issued instructions to all Sales Tax Officers within the State not to make any appropriation under section 8-A(4).
(3.) THE petition is allowed. The order appropriating the sum of Re. 7,505.25 under section 8-A(4) of the U.P. Sales Tax Act and the notice of demand requiring the petitioner to pay the amount are quashed. The petitioner is entitled to its costs. Petition allowed.;