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TMI Blog1958 (2) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... to the judgment in that case the notification has been validated by the U.P. Sales Tax (Amendment) Act, 1957 (U.P. Act XXIV of 1957). It is necessary to refer shortly to certain statutory provisions. Prior to the coming into force of the U.P. Sales Tax (Amendment) Ordinance, 1957 (U.P. Ordinance No. IX of 1956) (hereinafter referred to as the Ordinance) sub-section (1) of section 3A of the Principal Act empowered the State Government by a notification in the official Gazette to declare that the turnover in respect of any goods shall not be liable to sales tax, save at such single point as the State Government may specify. Sub-section (2) of this section then provided that "(2) If the State Government makes a declaration under sub-section (1) of this section it may further declare that the turnover of the dealer, who is liable to pay tax on the sale of such goods shall, in respect of such sale, be taxed at such rate as may be specified not exceeding one anna per rupee if the sale relates to goods specified below '-Five classes of goods were then specified-' and nine pies per rupee if it relates to any other goods." On 31st March, 1956, the Ordinance was published in the Gazette, Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and 11 to 15 shall, subject as herein provided, have and be deemed to have effect on and from the 1st day of April, 1956, and sections 10 and 16 shall have effect from such date as the State Government may by notification in the Official Gazette appoint: Provided that the amendments made by section 12 and 15 shall also apply in relation to assessment for any year before the 1st day of April, 1956, whether such assessments have or had at any stage been completed or not." Section 4 is in the same terms as section 4 of the Ordinance. Section 17 of the Act enacts that the Ordinance "is hereby repealed", and in the absence of specific provision to the contrary this section must be held to have come into force on the date on which the Act was published, namely 28th May, 1956. The only other enactment to which reference has to be made is the U.P. Sales Tax (Amendment) Act, 1957 (U.P. Act No. XXIV of 1957) to which it is convenient to refer as "the 1957 Act". This Act was published in the Gazette dated (1) [1957] 8 S.T.C. 666. 3rd September, 1957, and under sub-section (1) it came into force at once. The Act consisted of only two sections, and section 2, so far as is material, provides"2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Did it, in other words, purport to exercise the power conferred upon it by this section as amended by the 1956 Act: Now the notification makes it clear that it was issued "In exercise of the powers conferred by section 3A of the U.P. Sales Tax Act, 1948, as amended from time to time;" and this Court has held in Adarsh Bhandar's case[1957] 8 S.T.C. 666. that on the date on which the notification was issued only the old section 3A(2) was in force. The State Government could therefore issue, and in fact purported to issue, the notification only in the exercise of its powers under the old section. The fact that in view of the retrospective operation of the 1957 Act, the State Government must be deemed to have requisite power under the new section 3A(2) on 31st March will not convert a notification issued under the old section 3A(2) into one issued under the new section. The conferment of the necessary power from a back date cannot, in other words, have the effect of validating a notification which was not issued in exercise of that power. The learned standing counsel has placed great reliance on East End Dwellings Company Limited v. Finsbury Borough Council[1952] A.C. 109. in which L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3A(2) it remains invalid. In our opinion neither Bhikaji Narain Dhakras' case[1955] 2 S.C.R. 589. nor the two cases cited in this connection by Mr. Pathak, Newberry v. United States65 Law Ed. 913. and Saghir Ahmad v. The State of U.P. and Others [1955] 1 S.C.R. 707., apply to the facts in the present petition, for in none of them was the Court called upon to consider the effect of the retrospective operation of an enactment on a statutory provision or notification invalid on the date on which it was made. Mr. Pathak has contended that the impugned notification is dead for all purposes and for all time. On this question (which does not in the circumstance directly arise) we prefer to reserve our opinion. Mr. Pathak also attacked the validity of the notification on two other grounds, and in view of the fact that this case may go further we think it proper to state shortly what they are. The first argument is that, although the 1957 Act has given retrospective effect to the amendment made in section 3A by the 1956 Act, a statute ought not to be construed to have a greater retrospective operation than its language renders necessary; and that the 1957 Act ought not to be construed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a tax imposed upon the producers and that the sales tax is collected from and through the agency of the dealers who have been given powers under the Act to reimburse themselves by collecting the tax from persons to whom they may sell the commodity taxed." In neither of these cases had the Court under consideration the point which has now been advanced, for in each case it was dealing with another matter, namely whether the Provincial Legislature was competent to impose a sales tax on the purchasers of goods. The reasons which led this Court in Adarsh Bhandar's case(1) to reject and the argument now advanced are stated in my judgment in that case, and Mr. Pathak has not been able to satisfy us that the view there expressed is erroneous. In our opinion the impugned notification continues to be invalid. We regret that we are compelled to come to this conclusion as we can entertain no doubt that it was the purpose of the legislature in passing the 1957 Act to get over the difficulty which had been caused by the decision of this Court in Adarsh Bhandar's case(1). In our opinion it has not succeeded. We allow the petition and direct the issue of a writ in the nature of certiorari quash ..... X X X X Extracts X X X X X X X X Extracts X X X X
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