Ajay Kumar Mittal, J. - (1.) THE petitioner has approached this Court under Articles 226/227 of the Constitution of India seeking quashing of Notification Annexure P.1 whereby it gives retrospective effect to the applicability of provisions of the Haryana General Sales Tax Act, 1973 (in short, "the Act") from May 17, 1988 whereas the notification had been issued on March 26, 1991. Consequential prayer has also been made for setting aside assessment order dated 10.7.1991 for the year 1989 -90 (Annexure P/3) to the extent it creates liability on that basis. Briefly, the facts as narrated in the petition may be noticed. The petitioner is a partnership firm and a registered dealer under the Act and also Central Sales Tax Act; 1956. It is carrying on the business of flour mill at Ambala City. The petitioner -firm is filing its sales tax returns regularly and depositing the amount of tax. It challenges the legality and validity of the notification dated 26.3.1991 issued by respondent No. 1 under the Act, whereby Schedule 'D' to the Act has been amended with retrospective effect Prior to the impugned amendment, the petitioner -firm was not liable to pay any tax on the purchase of wheat from within the State and it was only the flour and other by -products manufactured by the petitioner -firm which were liable to tax and on which the petitioner was paying the tax regularly. Section 63 of the Act gives power to the State Government to amend the Schedule but does not give any power for amendment with retrospective effect. In the present case, Schedule 'D' to the Act has been amended retrospectively with effect from 17.5.1988 vide impugned notification. Hence the present writ petition.
(2.) LEARNED counsel for the petitioner submitted that the Government did not have the power, by exercising delegated legislation, to issue notification which was to operate retrospectively from 17.5.1988. Reliance was placed on judgments of this Court in Goel Brick Industries and others v. Ws Radha Swami Brick Co.,1 (2010) 37 PHT 440 (P&H), Ranbir Singh Ram Gopal v. State of Haryana and another,2 (2002) 19 PHT 289 (P&H), Ram Gopal Murli Dhar Juntra v. State of Haryana and others,3 (2010) 37 PHT 438 (P&H), Shiv Shankar Industries v. State of Haryana and others,4 (2011) 39 PHT 220 (P&H), Ws Jiwan Agricultural Implements Workshop, Patiala v. State of Punjab and others,5 (2000) 15 PHT 462 (P&H) and judgment of the Apex Court in State of UP and others v. Deepak Fertilizers and Petrochemical Corporation Limited,6 : AIR 2007 SC 2123 : (2007)10 SCC 342. It was submitted that the State is empowered to issue prospective notifications and the notification having its applicability retrospectively from 17.5.1988 was bad. It was further submitted that the petitioner prior to amendment was not liable to pay any tax on the purchase of wheat from within the State and it was only the flour and its by -products manufactured by the petitioner which were liable to tax. Now by virtue of retrospective amendment in Schedule 'D' by notification dated 26.3.1991, Annexure P. 1, the petitioner has been made liable to pay tax on the stocks lying with the petitioner by making it deemed purchases as first purchases in the hands of the petitioner on the purchase value by disallowing the sales to registered dealers. Under the circumstances, it cannot be said that notification is not operating retrospectively.
(3.) LEARNED counsel for the State submitted that the notification is not retrospective in nature as Explanation 1 to Schedule 'D' in the said notification only clarifies the intention of the legislature and adjustment has to be given in the light of provisions contained in the Explanation itself.;