1985 (9) TMI 321

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..... the Seventh Schedule? Held that:- Appeal allowed. In the instant case, before us, there is not merely a provision for making over such collections by the trader to the State but also a provision for refunding it by the State to the persons from whom such collections have been made. The impugned provisions will have, therefore, to be upheld as falling within the doctrine of ancillary or incidental legislative powers.
TULZAPURKAR V.D. AND SABYASACHI MUKHARJI JJ. Gobind Das, Senior Advocate (P.H. Parekh and Mrs. Divya Bhatta, Advocates, with him), for the respondents. M.S. Nargolkar, Senior Advocate (P.N. Misra, Advocate, with him), for the appellant. -------------------------------------------------- The judgment of the Court was d .....

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..... Tax Officer [1964] 15 STC 403 (SC) and the other in Ashoka Marketing Co. v. State of Bihar [1970] 26 STC 254 (SC). Both these decisions were reconsidered by the Constitution Bench in R.S. Joshi's case [1977] 40 STC 497 (SC); [1978] 1 SCR 338 and the provisions of the Maharashtra Sales Tax Act as applied to Gujarat State [similar to the provisions contained in section 9-B(3) and section 14-A of the Orissa Act] have been upheld. The view in Ashoka Marketing Co.'s case [1970] 26 STC 254 (SC) has been expressly dissented from. The crux of the question raised in all these decisions was whether a provision directing the trader to "cough up" collections wrongly made by him from the purchasers otherwise than in accordance with the provisions of t .....

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..... ting such amounts from purchasers, a penalty and forfeiture the impugned provisions were valid inasmuch as these properly fell within ancillary and incidental powers-ancillary and incidental to the power to levy a tax under entry 54, List II." At page 363 of the Reports (page 516 of 40 STC), Krishna Iyer, J., has gone to the length of observing thus: "In strict legality, once the money is forfeited to the State, there is no obligation to make it over to the purchaser, but in the welfare orientation of our State and certain constitutional emanations we leave unexplored, such an obligation should be voluntarily undertaken." In other words, even in the absence of provision being made in the enactment for refunding or returning the amount so w .....

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