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TMI Blog1971 (3) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax (Amendment) Act, 1956, inserted section 3-AA into the Act. Section 3-AA provided that notwithstanding anything contained in section 3, the turnover in respect of coal, iron and steel, raw jute, cotton, oil-seeds, or raw hides and skins shall not be liable to tax except at the point of sale by a dealer to the consumer, and the rate of tax shall not exceed three pies per rupee. The U.P. Sales Tax (Amendment) Act, 1957, amended section 3-AA. It may be noted that in the original section only raw hides and skins were mentioned. The amendment now included in section 3-AA dressed hides and skins. The amendment came into force with effect from 30th November, 1957. The U.P. Sales Tax (Amendment) Act, 1958, amended section 3-AA. It substituted for the words "two per cent." the words "two paise per rupee". Some other amendments were also made but we are not concerned with them. The State Government issued the impugned notification. It reads: "In pursuance of the provisions of section 3-AA of the U.P. Sales Tax Act, 1948 (U.P. Act No. 15 of 1948), as amended up to date, and in modification of all previous notifications on the subject to the extent they are repugnant to this noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Government had the power to issue the impugned notification. Counsel for the petitioner has submitted that section 3-AA, even after amendment in 1964, does not empower the State Government to authorise levy of sales tax from a date anterior to the date of the birth of the notification. In Shri Hari Kishan v. Commissioner of Sales Tax(1), a Division Bench of this court has held that the State Government has no power to authorise a levy from a back date. That decision is binding on us. Accordingly we will hold that clause (b) of the impugned notification, in so far as it authorises levy of sales tax from a back-date, is invalid. The next question is whether the tax can be assessed from 1st August, 1958, and onwards under the impugned notification. Counsel for the petitioner submits that as the retrospective part of clause (b) of the impugned notification is invalid, effect cannot be given to the notification even from 1st August, 1958. According to him the entire clause (b) will fall down. In support of this argument he relies on Shri Hari Kishan's case[1970] 26 S.T.C. 511. The leading judgment in Shri Hari Kishan's case[1970] 26 S.T.C. 511. was delivered by Pathak, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sales tax with effect from 30th November, 1957, and until it is deleted. It seems to us that Pathak, J., had the particular notification (as construed by him) in his mind. His observation is, we think, restricted to the notification as construed by him. So it should not be extended to the notification before us which we have construed in a different manner. We have already quoted the impugned notification. It is clear from the text of the notification that it commences to operate from 1st August, 1958. It is the date on which it was published in the Gazette. It does not show that it will come into effect from any back date. Clause (a) of the notification authorises levy of tax on raw hides and skins from 1st August, 1958, and not from any back date. Similarly, clause (c) authorises levy of tax on cotton yarn from 1st August, 1958, and not from any back date. Only clause (b) authorises levy of tax on dressed hides and skins from a back date, namely, 30th November, 1957. In respect of clauses (a) and (c) it commences from 1st August, 1958. So the notification itself is not retrospective. The expression "with effect from November 30, 1957" in clause (b) of the notification has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the rest of the statute should be enforced." The question of severability arose in the Bengal Immunity Co. v. State of Bihar[1955] 6 S.T.C. 446 at p. 494 (S.C.); A.I.R. 1955 S.C. 661 at p. 688. At page 688 of the report it was said: "This being the position the question arises whether the Act is bad in toto or is bad only in so far as it offends the provisions of article 286 as construed above. It appears to us that the Act imposes tax on subjects divisible in their nature but does not exclude in express terms subjects exempted by the Constitution. In such a situation the Act need not be declared wholly ultra vires and void, for it is feasible to separate taxes levied on authorised subjects from those levied on exempted subjects and to exclude the latter in the assessment of the tax. In these circumstances it is difficult to say that the scheme of taxing inter-State sales forms such an integral part of the entire scheme of taxation on sales or purchases of goods as to be inextricably interwoven with it. There is no reason to presume that had the Bihar Legislature known that the provisions of the Act might be held bad in so far as they imposed or authorised the imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Narayanan Krishnan Kaimal v. Narayanan Parameswara KaimalA.I.R. 1954 Trav.-Co. 130., a Government notification which was retrospective was not struck down in entirety. It was held that it could legitimately operate with effect from the date of the issue of the notification. The impugned notification will remain operative from 1st August, 1958, even though the retrospective levy with effect from 30th November, 1957, is invalid. The notification was issued on 1st August, 1958. In the assessment year 1958-59 tax on dressed hides and skins will be assessed on the petitioner in accordance with the notification with effect from 1st August, 1958. For the earlier period tax may be assessed on him in accordance with the other provisions of the Act. As regards the assessment years 1959-60 and 1960-61 tax will be assessed on him in accordance with the notification, for the notification was in force during these years. It was deleted on 15th November, 1961. In the result, we allow this petition partly. It is dismissed in regard to the assessment years 1959-60 and 1960-61. The assessment order for the assessment year 1958-59 is quashed. The Sales Tax Officer is directed to assess the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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