S.S.DEWAN,J. - (1.) TWO Civil Writ Petitions Nos. 1177 of 1976, Fairdeal Agencies (Regd.), Ambala Cantonment v. The State of Haryana and Ors. and 1471 of 1977, Shiv Kumar Hari Parkash, Hissar v. The State of Haryana and Anr. , are being disposed of together by this judgment.
(2.) THE facts emerging from the petition, which need be stated, are these: The petitioners are carrying on business in the State of Haryana. They were registered as dealers under the Punjab General Sales Tax Act, 1948, the Central Sales Tax Act, 1956, and later on under the Haryana General Sales Tax Act, 1973 (hereinafter referred to as the Punjab Act, Central Act and Haryana Act respectively ). In respect of the year of assessment 1969-70, the petitioner in Civil Writ No. 1177 was assessed to sales tax under the Punjab Act as well as under the Central Act by order of the Assessing Authority, Ambala, dated 29th October, 1974. Assessment order for the year 1968-69 in the case of the petitioner in Civil Writ No. 1471 was made under both the Acts on 29th December, 1969, by the Assessing Authority, Hissar. Thereafter, the Deputy Excise and Taxation Commissioner, Ambala, acting suo motu issued to the petitioner in Civil Writ No. 1177 a notice dated 19th January, 1976, and thereby required the petitioner to appear in the proceedings intended to be taken with a view to determine the question of its liability for penalty in terms of Section 49 (3) of the Haryana Act on account of collection by it of the amount of tax in excess of the amount permissible under the Central Act. A similar notice dated 23rd February, 1977 was issued by the Assessing Authority, Hissar, to the petitioner in Civil Writ No. 1471 under Section 9 (2) of the Central Act, read with Section 49 of the Haryana Act. It appears that the petitioners chose not to appear in the proceedings so intended and instead approached this Court for quashing the notices in exercise of its extraordinary powers. The legality of the notice has been challenged in each case by the Learned Counsel and it is contended that: (i) Section 49 of the Haryana Act, under which it is proposed to levy penalty, is beyond the competence of the legislature; (ii) The legislature was not competent to give retrospective effect to Section 49, so as to operate with effect from 14th November, 1967; (iii) Section 49 cannot be pressed into service so as to impose penalty in view of the saving provision made in the proviso to Section 65 of the Haryana Act; (iv) In the absence of a provision in the Central Act for imposing penalty for excess collection of the amount of tax thereunder, recourse to Section 49 of the Haryana Act cannot be taken to penalise the petitioners for such collections. These contentions are being dealt with hereunder: Section 49 of the Haryana Act, of which the competency of the legislature to enact was questioned, is in these words: (1) No person shall collect any sum by way of tax in respect of sale or purchase of any goods on which no tax is payable under this Act. (2) No person, who is not a registered dealer and liable to pay tax in respect of any sale or purchase, shall collect on the sale or purchase of any goods any sum by way of tax from any other person and no registered dealer shall collect any amount by way of tax in excess of the amount of tax payable by him under this Act. (3) If any person, not being a dealer liable to pay tax under this Act, collects any sum by way of tax, or being a registered dealer collects any amount by way of tax in excess of the tax payable by him or otherwise collects tax in contravention of the provisions of Sub-sections (1) and (2), he shall be liable to pay, in addition to any tax for which he may be liable, a penalty of an amount not exceeding five hundred rupees, or double the amount so collected whichever is greater.
(3.) THIS section was given retrospective effect from 14th November, 1967, by the legislature by virtue of Section 1 (3) of the Act.;