M.L. Chaturvedi, J. - (1.) This petition, some other similar petitions in which notices had been ordered to be issued, and a number of others in which notices had not been ordered to be issued, were put up together, as the learned counsel for the petitioners proposed to argue the same points in all these petitions. In the present petition as well as in some others, grounds have not been taken to the effect that the impugned Act was void, as it contained unauthorised delegation of power and was inconsistent with Article 14 of the Constitution. But in all the cases in which notices have not been issued, these two points have also been taken. The learned counsel for the petitioners, Mr. Jagdish Swarup, argued the above first two points and, after he had concluded his arguments, the learned Junior Standing Counsel raised an objection that, in the petitions in which the above two points had not been taken in the grounds, the learned counsel should not be permitted to argue the points. The objection was made at a late stage of the case and it was further clear that the points had to be considered in some of the writ petitions in which they had been taken. There is the further fact that the learned counsel for the State could not be said to have been taken by surprise, because there was a break of nearly a month after the above two points had been argued by the learned counsel for the petitioners and the time when he started with the points that had actually been taken in the writ case. This break of a month was caused by the fact that one of the Judges, constituting the Bench, was on leave for a period of three weeks. In view of all these circumstances, we permitted the above two points to be argued even in the petitions in which they had not been taken in the grounds set forth in the petitions.
(2.) The petitioner is a dealer in cloth and carries on his business for the purchase and sale of cloth in Agra. He is registered as a dealer under the U.P. Sales Tax Act. The petitioner had been paying sales tax on the sales effected by him at a certain rate, but subsequently tax on some of the commodities was made payable at one point of sale and the rate of tax was fixed at one anna per rupee. In view of the change in the law, the Sales Tax Officer assessed a portion of the turnover of the petitioner at the enhanced rate by his assessment order dated 20th May, 1958, and also issued a notice of demand for the payment of the sum assessed. The present petition was filed on the 12th August, 1958, praying for the issue of a writ in the nature of certiorari quashing the assessment order dated 20th May, 1958, and the demand notice bearing the same date. It was also prayed that a writ in the nature of mandamus be issued commanding the Sales Tax Officer, Agra, not to give effect to the assessment order and not to enforce the notice of demand. The petition has been opposed on behalf of the State and, in order to appreciate the points in dispute between the parties, a short history of the legislation on the point may be given.
(3.) The U.P. Legislature passed an Act to provide for the levy of tax on the sale of goods called the U.P. Sales Tax Act, No. XV of 1948. It came into force from the 1st April, 1948. (It will hereinafter be referred to as the Principal Act). Under Section 3(1) it is provided that every dealer shall in each assessment year pay tax at the rate of 3 pies per rupee on his turnover of the previous year which shall be determined in such manner as may be prescribed. A new Section 3A was added by the U.P. Sales Tax (Amendment) Act, No. XXV of 1948. Sub-section (1)of this section provided that notwithstanding any thing contained in Section 3, the State Government may, by notification in the official Gazette, declare that the turnover in respect of any goods shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify. Under Sub-section (2) the State Government is further authorised to declare that the turnover of the dealer in respect of such sale be taxed at such rate as might be specified not exceeding one anna per rupee, provided the sale related to goods specified in the sub-section. On the goods not specified in the sub-section the maximum tax was fixed at 9 pies per rupee.;