9911796707
TMI Blog2011 (4) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee but that is possible only when the respondent is able to prove and establish with cogent and reliable materials that he is entitled to the benefit of the exemption notification - Therefore, allow the parties to lead additional evidence before the appellate authority, which shall be allowed to be filed within four weeks from their date of appearance and, thereafter, the appellate authority shall proceed to decide the matter de novo in the light of the records available and also in the light of the exemption notification - Appeal stands allowed to the aforesaid extent as indicated and leave the parties to bear their own costs - The appellate authority to take up the matter and dispose of the same as expeditiously as possible, prefera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of levy of sales tax issued a notification on 12th September, 1986, in which it was stated that under section 4 of the Uttar Pradesh Sales Tax Act, 1948, Tractors with Power Take-off Horse Power not exceeding 25 would stand exempted from payment of tax under the Sales Tax Act, subject, however, to the condition that the said tractors are exempted from payment of Central Excise Duty. 4. A show cause notice was issued to the respondent from the Office of the Assistant Commissioner (Assessment)-I Sales Tax, Lucknow, stating therein that at the time of survey made, and as per the literature made available it was found that the horse power of the tractors of the respondent had been disclosed as 30 Horse Power. In the aforesaid show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty) of the Tractor engine not exceeding 1800 C.C. And bring it at Par with Circular No. 89/87/CE dated 1.3.1987 issued by Central Government to clear the anomaly and ambiguity in both the circulars, which creates discrimination among manufacturer of Fuel Efficient engines and rest ones, and refrain the Opposite Party No.2 to desist from recovering disputed Sales Tax of Rs. 2,34,00,965.400 from April 91 to Feb. 92 created by Annexure II dated 21.03.1991, and stay operation thereof." 7. Interestingly, in the said writ petition there was no challenge to the assessment order passed. Be that as it may, the Division Bench of the Allahabad High Court proceeded to hear the aforesaid writ petition and by a detailed order passed held that since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat power to some other authority. But the exercise of that power whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. [945 F-G] Article 265 of the Constitution lays down that no tax can be levied and collected except by authority of law. Hence the levy of a tax can only be done by the authority of law and not by any executive order. Unless the executive is specifically empowered by law t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate for the courts to issue a mandate to legislate an Act and also to make a subordinate legislation in a particular manner. In this particular case, the High Court has directed the subordinate legislation to substitute wordings in a particular manner, thereby assuming to itself the role of a supervisory authority, which according to us, not a power vested in the High Court. It is also by now settled law that so far exemption clauses are concerned, there should be strict interpretation of the same as has been held by this Court repeatedly. Suffice will be to refer to very recent decisions of this Court in Bhai Jaspal Singh v. Assistant Commissioner of Commercial Taxes [2011]1 SCC 39 and Commissioner of Central Excise, New Delhi v. Hari Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subsequent events and developments that had taken place subsequent to the filing of the writ petition or filing of the special leave petition and it is also within the jurisdiction of this Court to pass consequential orders to give effect to the remedies available to the parties. Considering these facts and circumstances from the aforesaid angle, we after setting aside the order passed by the High Court and also by the Tribunal as also by the First Appellate Court, remit back the matter to the First Appellate Court to consider the matter de novo taking into consideration the notification as existing and which was issued on 12th September, 1986, and decided the matter without making any addition/alternation thereto. 12. However, counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
