9911796707
TMI Blog1973 (3) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... July, 1968, by the Orissa Sales Tax (Amendment) Act, 1968 (Orissa Act 15 of 1968), as directed in the notice of demand. The petitioner deposited the aforesaid sums in the treasury as directed. He then filed an application for refund of those amounts alleging that they were not collected as sales tax and the State was not entitled to retain the same. This application was rejected by the Sales Tax Officer. The petitioner took recourse to appeal and second appeal without any success as the question of constitutionality of section 9-B(3) and section 14-A of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947) (hereinafter to be referred to as the Act), cannot be determined by the authorities created under the Act. The identical facts are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.. It would thus be seen that section 9-B(3) is the provision made in the Act directing that the amount realised by any person by way of tax shall be deposited in a Government treasury if the amount so realised exceeds the amount payable by him as tax; in other words, it prescribes that if a dealer realises any sum which is not sales tax, then he cannot retain the same, but must deposit it in the treasury. The Legislature was well aware of the position that the State had no title in the sum so directed to be deposited. Correspondingly, a provision has been made in section 14-A that the person entitled to take refund of that sum is not the dealer who deposited it, but a constituent from whom the same was collected by the dealer even thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the amounts collected by way of tax by persons, even though they really are not exigible as tax, as part of incidental and ancillary power to make provision for the levy and collection of such tax. This contention was negatived. Their Lordships observed thus: "These incidental and ancillary powers have to be exercised in aid of the main topic of legislation, which in the present case, is a tax on sale or purchase of goods. All powers necessary for the levy and collection of the tax concerned and for seeing that the tax is not evaded are comprised within the ambit of the legislative entry as ancillary or incidental. But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 11(2) was not within the competence of the State Legislature under entry 54 of List II. 6.. On the aforesaid reasoning section 9-B(3) of the Act was not within the competence of the Orissa State Legislature and must be declared ultra vires. 7.. In the second case a similar question again came up for consideration (Ashoka Marketing Ltd. v. State of Bihar[1970] 26 S.T.C. 254 (S.C.).). There the constitutionality of the relevant provisions of section 20A introduced by amending Act 20 of 1962 in the Bihar Sales Tax Act, 1959 (19 of 1959), was challenged. Sub-sections (3), (4) and (5) of section 20A of the Bihar Act correspond to section 9-B(3) of the Act, and sub-section (8) thereof corresponds to section 14-A of the Act. Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate treasury amounts collected by a dealer, which he is not entitled to collect or liable to pay, are ultra vires the State Legislature, notwithstanding the addition of subsection (8) which enables the purchaser to claim refund from the State of the amount collected from him within the period of limitation for a similar claim by a suit against the dealer. As a corollary thereto subsections (6) and (8) of the section were held to be invalid. In both the aforesaid Supreme Court decisions reliance was placed by the revenue on an earlier decision in Orient Paper Mills Ltd. v. State of Orissa and Others[1961] 12 S.T.C. 357 (S.C.). At page 258 of 26 S.T.C. 254 (Ashoka Marketing Ltd. v. State of Bihar) the case in 12 S.T.C. 357 (Orient Paper Mills ..... X X X X Extracts X X X X X X X X Extracts X X X X
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