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TMI Blog1971 (11) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... the principal Act should, in respect of any sale or purchase made by or through him, realise from any person any amount by way of sales tax or any amount in lieu of sales tax. It further provided that no dealer registered under the principal Act shall in respect of any sale or purchase made by or through him, realise from any person other than a person to whom goods are sold by him any amount by way of sales tax or any amount in lieu of sales tax by giving it a different name or colour. Clause (b) of section 8-A(2) provided that where sales tax was payable on any turnover by a dealer including a commission agent or any of the persons mentioned in Explanation 2 of section 2-C of the principal Act, the dealer may recover an amount equivalent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer passed an order to the effect that as the amounts were realised from the customers, they would not be entitled to any refund "in terms of the law as it stands at present". Section 29-A shields the order of the Sales Tax Officer. The petitioners filed petitions challenging the constitutionality of section 29-A. The cases came up for hearing before a Division Bench. Before the Bench, the petitioners relied on Ashoka Marketing Limited v. State of Bihar(2). The standing counsel, on the other hand, relied on a Division Bench decision of the Lucknow Bench of the court in Messrs Kasturi Lal Har Lal v. The State of Uttar Pradesh(3). (1) [1970] 25 S.T.C. 155 (S.C.). (2) [1970] 26 S.T.C. 254 (S.C.); A.I.R. 1971 S.C. 946. (3) Writ Petition No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtained after the expiry of three years from the date of the order of assessment or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later. Explanation.-The expression 'final order on appeal, revision or reference' includes an order passed by the Supreme Court under article 32, article 132, article 133, article 136 or article 137, or by the High Court under article 226 or article 227 of the Constitution." Section 17, with which we are directly concerned, provides: "(1) Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, every payment or deposit made by any dealer under sub-section (4) or sub-section (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 15. So section 15 is the principal provision, while section 17 is an auxiliary provision. If section 15 is unconstitutional, section 17 will also fall down as unconstitutional because it is inseverable from section 15. Let us now examine what section 15 endeavours to accomplish. Subsection (1) envisages a case where a dealer realises some amount as sales tax from the person to whom goods are sold by him and the dealer himself is not liable to pay the collected amount or any part thereof as tax. Sub-section (1) directs such a dealer to deposit the collected amount into the Government treasury. Sub-section (2) provides that the amount so deposited by a dealer shall, to the extent it is not due as tax from him, be held by the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land." Entry 10: "Trust and trustees." Standing counsel has relied principally on entry 10. Arguments for and against have ranged over a wide spectrum. But we do not think it necessary to deal with all those arguments. We think that the fate of section 15 of the U.P. Sales Tax (Amendment and Validation) Act, 1971, is foredoomed by Ashoka Marketing Limited[1970] 26 S.T.C. 254 (S.C.); A.I.R. 1971 S.C. 946. In that case section 20-A of the Bihar Sales Tax Act was assailed. In substance section 20-A resembles section 29-A inserted by section 15. The Advocate-General of Bihar contended before the Supreme Court that sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he taxpayer in order to recoup himself for payment of tax which under the law he is not bound to pay. Even though the competence of the State to legislate was not sought to be supported under entries 6, 7 and 13 of List III, the decision of the court plainly implies that the State has no such power under any entry in the third List." (emphasis added). We have already mentioned that section 29-A inserted by section 15 of the U.P. Sales Tax (Amendment and Validation) Act, 1971, is substantially similar to section 20-A of the Bihar Sales Tax Act. Accordingly we find it difficult to accept the argument of standing counsel that the subject-matter of section 15 is covered by entries 6 and 7 of List III of the Seventh Schedule to the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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