MANGAL CHAND KUNJ BEHARILAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) 1. This is a writ petition under Article 226 of the Constitution by the asses-see directed against the order of the Judge (Revisions) Sales Tax, U. P. Lucknow dated the 6th February 1961 and the order of the Sales Tax Officer dated the 2nd of November 1957, directing that the sum of Rs. 1397 shall be kept in deposit and not refunded and that the petitioner should deposit a further sum of Rs. 57.11 P. under Section 8-A (4) of the U.P. Sales Tax Act (hereinafter referred to as the Act). The prayer is for the quashing of the aforesaid two orders and for a writ of mandamus or any other appropriate writ requiring the respondent, to refund the amount of Rs. 1397 and the sum of Rs. 57.11 P. realised under Section 8-A(4) of the Act.

(2.) THE material facts are these: The petitioner is a firm carrying on business, inter alia, in food-grains and oil seeds at Gola Gokarannath in the district of Lakhimpur Kheri. The sale of food-grains was not taxable in U. P. under the U.P. Sales Tax Act before April 1, 1956. From April 1, 1956, by notification No. ST- 909/X dated 31st March 1956 sales of foodgrains were made taxable at 6 pies per rupee at all points of sales. By notification No. ST-6068/S-1097-56 dated 30th of September, 1956, foodgrain dealers were given the option to obtain exemption subject to payment of fee on slabs of turnover and by notification No. ST-7048/X-1097-55, dated 5-1-1957, retrospective effect was given from 1-4-1956, to the aforementioned notification dated 30-9-1956. The petitioner had realised sales tax of Rs. 2055 on a turnover of Rs. 65,792 of foodgrains for the first two quarters of 1956-57 from his customers. After the promulgation of the aforementioned notification dated 30-9-1956, the petitioner applied and obtained the benefit of exemption on his turnover for the entire year 1956-57, after paying the exemption fee of Rs. 658. Out of the sum of Rs. 2055 which had been realised by the assessee, the Sales Tax Officer by his order dated 2nd November 1957, directed that the amount of Rs. 658 exemption fee would be credited towards the exemption fee and the balance of the sum of Rs. 1397 will be kept in deposit under Section 8-A(4) of the U.P. Sales Tax Act. The assessee was further directed to deposit Rs. 57.11 on the sale of cotton under Section 8-A(4) of the Act. The petitioner filed a revision from the said order contending, inter alia, that Section 8-A(4) of the Act under which the order of the Sales Tax Officer was passed was ultra vires. The Judge (Revisions), however, held, relying upon the decision of his predecessor that the provisions of Section 8-A(4) were intra vires. Hence, this petition at the instance of the assessee.

(3.) I have considered this decision but do not find any good and sufficient reason to take a different view from what I had earlier taken in the matter which was referred to me as a third Judge in STR No. 1639 of 1956 (All) Commr. of Sales Tax v. Ganga Sugar Corporation decided on 13-11-1964. In (1964) 15 STC 403 = (AIR 1964 SC 922) (supra), the Supreme Court was called upon to interpret Section 11(2) of the Hyderabad General Sales Tax Act which according to the learned junior Standing counsel is worded very widely as compared to Section 12-A (4) of the Bombay General Sales Tax Act and Section 8-A(4) of the U. P. Sales Tax Act, and therefore the decision of the Supreme Court should be confined to the vires of the provision of the Hyderabad General Sales Tax Act. In order to test this contention it will be advisable to read the three relevant provisions: