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TMI Blog1972 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... 82 already paid by the petitioner. The amount of excess tax of Rs. 9,320.35, which was already paid by the petitioner, was directed to be refunded and, accordingly, it was refunded to the petitioner. The controversy whether watery coconuts were "oil-seeds" or not, has been set at rest by the order of this court in Writ Petition No. 1196 of 1965, since reported in 28 S.T.C. 110 (Tagoob Mohammad of Kanchili v. The Commercial Tax Officer, Srikakulam). Following that decision this court in Writ Petition No. 337 of 1967 held that watery coconuts were not liable to be taxed for the assessment year 1964-65, since watery coconuts were not included in Schedule III containing the list of "declared goods" exigible to tax. Following the said decision, the contention of the petitioner in regard to the assessment year 1965-66 was accepted by this court in Writ Petition No. 2159 of 1966, and in pursuance of the order of this court, the Commercial Tax Officer refunded the amount of excess tax already paid by the petitioner. In order to get over the above decisions, the State Government amended the principal Act by enacting the Andhra Pradesh General Sales Tax (Amendment) Act, 1971 (hereinaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and a reassessment under section 8 cannot, effectively, be made; and (3) section 8(1) of the Amending Act does not enable the Commercial Tax Officer to revise the assessment when it is merged into the order of the High Court. Mr. Sastri, the learned Advocate appearing for the Government, on the other hand, contended that the Amending Act has not encroached upon the judicial powers of the High Court. On the other hand, it has followed the law settled by the High Court. The Legislature is competent to authorise the revision of assessments which were set aside in appeals or writ petitions, in view of the clear language of section 7, which starts with a non obstante clause. The proviso to article 200 of the Constitution is not attracted at all in this case and, therefore, the Bill did not require to be reserved for the President's assent. It is now well-settled that the Legislature is competent to re-enact with retrospective effect the provisions held ultra vires by the High Court after removing the defect. The powers to validate the assessments or orders which, though initially invalid, are valid in the light of the provisions of the Amending Act is also conceded to the Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertion of a fresh item, i.e., item 5-A after item 5 in the Third Schedule. According to item 5-A, "watery coconuts" are taxed (i) at the point of last purchase in the State, at the rate of 2 paise in the rupee, during the period commencing on 1st August, 1963, and ending with 31st March, 1965; (ii) at the point of first sale in the State, at the rate of 2 paise in the rupee, during the period commencing on 1st April, 1965, and ending with 22nd December, 1966; and (iii) at the point of first purchase in the State, at the rate of 3 paise in the rupee, during the period commencing on 23rd December, 1966, and ending with the date immediately before the date of commencement of the Amending Act. There is also a proviso, which says that, where during the aforesaid periods any tax has been levied and collected in respect of watery coconuts, and where tax has also been levied and collected in respect of coconuts formed out of such watery coconuts, the tax so levied and collected in respect of such watery coconuts shall alone be refunded. We are not concerned here with clauses (c) and (d) of section 6 of the Amending Act. Section 7(1) of the Amending Act reads as follows: "Section 7. (1) Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the commencement of the Amending Act for making the assessment or reassessment in accordance with section 8. Having noticed the provisions of the Amending Act, we will now take up the first contention raised by the learned counsel, Sri S. Dasaratharama Reddy, appearing for the petitioner that the Amending Act should have been reserved for the consideration of the President of India before it was assented to by the Governor. The proviso to article 200 of the Constitution says that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor, would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is, by the Constitution, designed to fill. The short question that has to be decided by us is, whether, the Amending Act derogates from the powers of the High Court as to endanger the position which this court is, by the Constitution, designed to fill. Before we consider this question, we may profitably refer to the decision of the Supreme Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality and OthersA.I.R. 1970 S.C. 192. His Lordshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax..." The Amending Act does not merely declare that the decisions of this court in the earlier writ petitions are not binding. If the Amending Act had merely declared so, that the earlier decisions of this court are not binding, then probably, it could have been argued that the Amending Act was tantamount to reversing the decisions of this court given in the exercise of judicial powers and that the Legislature had usurped the judicial power which it did not possess or exercise. Since watery coconuts have been held to be "oil-seeds" and as they were not included in Schedule III, this court held that the State Government could not validly levy the sales tax on the turnover of watery coconuts. The cause of invalidity of the levy has now been removed by the Amending Act by inserting in Schedule III an item relating to watery coconuts with effect from 1st August, 1963. Thus, the Amending Act has removed the defect which this court had pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) of section 6, the Legislature has not used any words as in section 5(2), to indicate that the said insertion would be deemed to have been made on 1st August, 1963, or on a date earlier to the commencement of the Act. Clauses (i), (ii) and (iii) of the newly inserted item 5-A themselves indicate that the turnover of watery coconuts has to be taxed at the rates and at the points specified therein, on turnovers during the period anterior to the commencement of the Act. By necessary implication, therefore, we have to hold that the intention of the Legislature was to make section 6 of the Amending Act retrospective in its operation. This is further made clear by the express language used in section 8 of the Amending Act, which says that: "Notwithstanding anything in any judgment, decree or order of any court or other authority to the contrary, the assessing authority may assess of reassess the amount of tax payable by the dealer on his turnover relating to coconuts of all varieties during the period commencing on the 1st August, 1963, and ending with the date immediately before the date of the commencement of this Act............" It is not necessary that it should be expressly sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orising the levy of tax on the turnover of a hotel, at the rate of 4 1/2 pies in a rupee, was unconstitutional and unenforceable, the Tribunal directed the turnover to be assessed to tax at 3 pies in a rupee. The excess amount of tax due in accordance with the decision of the Tribunal was refunded to the assessee. In October, 1956, the Madras General Sales Tax (Third Amendment) Act validated the assessments under the provisions of the proviso to section 3(1)(b) of the Act before it was amended. The Amending Act also amended section 3(1)(b) with retrospective effect from 1st August, 1949, and authorised the levy at 4 1/2 pies in a rupee. The Deputy Commercial Tax Officer revised the assessment and demanded the tax that was found due on the basis of the revised assessment. The Tribunal upheld the demand. On a revision, the High Court held that: "...............(i) section 17 of the Amending Act XV of 1956 could not validate the order of the Deputy Commercial Tax Officer dated 7th February, 1957. The finality of the original assessment for 1953-54 was under the order of the Tribunal dated 28th May, 1956, and section 17 of the Amending Act did not operate to set aside that order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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