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TMI Blog2006 (8) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... aracter. The appellant shall be given opportunity to file further reply and place such materials as according to it are relevant before the concerned authority within four weeks from today. - Civil Appeal No. 9687 of 2003, Civil Misc. Writ Petition No. 865 of 2001 - - - Dated:- 2-8-2006 - ARIJIT PASAYAT AND KAPADIA S.H. JJ. Dhruv Agrawal and Praveen Kumar, Advocates for the appellant. R.G. Padia, Senior Advocate (S. Wasin A. Quadri, Kamlendra Mishra, R.K. Dubey and Ms. Rashmi Singh, Advocates, with him) for the respondents. -------------------------------------------------- The judgment of the court was delivered by ARIJIT PASAYAT J. Challenge in this appeal is to the judgment See [2004] 134 STC 436. rendered by a division Bench of the Allahabad High Court repelling the challenge to constitutional validity of section 8-E of the Uttar Pradesh Trade Tax Act, 1948 (in short, "the Act"). By the impugned judgment several writ petitions involving identical challenge were disposed of. Aforesaid section 8-E of the Act was inserted by section 7 of the U.P. Act No. 11 of 2001. A brief reference to the factual aspects would suffice. Appellant filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of each transaction on the facts of each case whether it is an intra-State sale or purchase or not, that according to the High Court did not affect validity of section 8-E. Questioning the correctness of the judgment of the High Court learned counsel for the appellant submitted the High Court clearly missed to notice the basic issues involved. The transactions being undisputedly inter-State transactions, the State Legislature had no competence to provide for deduction of tax at the time of making purchase. Strong reliance was placed on the decisions of this court in Steel Authority of India Ltd. v. State of Orissa [2000] 3 SCC 200 See [2000] 118 STC 297. and Nathpa Jhakri Jt. Venture v. State of Himachal Pradesh [2000] 3 SCC 319 See [2000] 118 STC 306. with reference to the decisions of this court in Bhawani Cotton Mills Ltd. v. State of Punjab AIR 1967 SC 1616 See [1967] 20 STC 290.. It was submitted that when a person has ultimately no liability to pay tax, he cannot be compelled to go through the procedure provided under the statute for the purpose of assessment and determination of tax liability, if any. It was pointed out that the notice issued itself accepted the positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o save the susceptibilities of the law makers, nor indeed to imagine a law of one's liking to have been passed. One must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment. 65.. . . . . If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the Legislature. We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down article 31C, so as to make it conform to the ratio of the majority decision in Kesavananda Bharati See AIR 1973 SC 1461; [1973] 4 SCC 225. is to destroy the avowed purpose of article 31C as indicated by the very heading 'Saving of certain laws' under which articles 31A, 31B and 31C are grouped. Since the amendment to article 31C was unquestionably made with a view to empowering the Legislatures to pass laws of a particular description even if those l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates that no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place outside the State or in the course of the import of goods into, or export of goods out of the territory of India. Article 286(2) authorises Parliament by law to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in sub-article (1). Acting upon this power, Parliament has set out in sections 3, 4 and 5 of the Central Sales Tax Act, 1956, principles for determining when a sale or purchase of goods can be said to take place in the course of inter-State trade or commerce, when a sale or purchase of goods can be said to take place outside the State and when a sale or purchase of goods can be said to take place in the course of import or export. In Gannon Dunkerley and Co. v. State of Rajasthan [1993] 1 SCC 364 See [1993] 88 STC 204 (SC)., this court has held that it is necessary to exclude from the value of a works contract the value of goods which are not taxable by a State in view of sections 3, 4 and 5 of the Central Sales Tax Act, 1956. The value of goods involved in the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssues not relevant, and that too giving clearly indefensible interpretations. The factual aspects should have been asked to be dealt with by the authorities. By directing the authorities to do it after laying down the law, which as noted down was not the correct position in law, would really serve no purpose. On the facts of the case, there is no need to decide the question relating to validity of section 8-E of the Act except stating that the provision is subject to what has been stated in Steel Authority of India's case [2000] 3 SCC 200 See [2000] 118 STC 297 (SC). and Nathpa Jhakri's case [2000] 3 SCC 319 See [2000] 118 STC 306 (SC)., for which the factual determination has to be done by the authorities. Therefore, we allow the appeal subject to the following directions: (1) The reply filed by the appellant on July 11, 2001 shall be dealt with by the respondent No. 3 in accordance with law. The said authority shall decide as to the nature of the transaction, i.e., whether it is of intra-State or inter-State character. If it is of inter-State character, the decisions in Steel Authority of India Ltd.'s case [2000] 3 SCC 2002 See [2000] 118 STC 297 (SC). and Nathpa Jhakri's case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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