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TMI Blog2008 (8) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. - 7450 of 1993 - - - Dated:- 7-8-2008 - PRAKASH KRISHNA , J. APPENDIX PRAKASH KRISHNA J. These two revisions were heard together and were decided by this court by a judgment dated November 13, 1991. This court quashed the orders passed by the Sales Tax Tribunal dated March 30, 1990 relying on the decision given by a Division Bench of this court in the case of Pioneer Tanneries Glue Works v. State of Uttar Pradesh [1991] 83 STC 1; [1991] UPTC 585, and held that since section 3AAAA has been declared ultra vires by this court, the order of remand to the assessing authority for determination of the liability in the light of observations made in the body of the judgment is incorrect. Thereafter aforesaid rectification applications under section 22 of the U.P. Sales Tax Act, 1948 were filed by the Commissioner of Sales Tax on May 19, 1993. Subsequently the State Government promulgated the U.P. Ordinance No. 45 of 1991 and section 3 of the Ordinance, section 3AAAA of the U.P. Sales Tax Act was substituted with retrospective effect from April 1, 1974. The said Ordinance has been replaced by Act No. 8 of 1992. An application after commencement of the Ordinance purported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification issued or anything done or any action taken before the commencement of this section which conforms to the provisions of the Principal Act, as amended by this Act shall be deemed to be and always to have been valid and lawful as if the provisions of this Act were in force at all materials times. (2) Where before the commencement of this section any authority or court has, in any proceeding made, any assessment, levy or collection of any tax passed or an order imposing any penalty or making any other demand under the Principal Act, or passed any order modifying, setting aside or quashing (wholly or in part), such assessment, levy, collection, penalty or demand and such assessment or order becomes inconsistent with the provisions of the Principal Act as amended by this Act then, subject to the provisions of sub-section (3) of any party to the proceeding or the Commissioner of Sales Tax may by September 30, 1992, make an application to such authority or court for review of the assessment or order and thereupon, such authority or court may review the proceeding and make such order, varying or revising the order previously made, as may be necessary to give effect to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 of the Principal Act, whichever is later. 3.. Sub-section (2) talks about the court. But under sub-section (3) the word 'court' does not find place. 4.. Sub-section (2) talks for review of the assessment order while sub-section (3) talks about rectification. In the present case the application was admittedly filed on May 19, 1993. Therefore, according to Shri Saxena the application could have been filed by September 30, 1992 and being beyond that time is liable to be rejected. It was further submitted that sub-section (3) of the Amending Act is not applicable as the application for rectification was filed before the High Court and the High Court is neither the assessing or appellate or revising authority and as such sub-section (3) shall not be applicable. Reliance has been placed upon a judgment of the Supreme Court in Commissioner of Trade Tax v. Upper Doab Sugar Mills Ltd. [2000] 118 STC 422; [2000} UPTC 496. The Supreme Court considered section 39 of the another Amending Act (U.P. Act No. 31 of 1995) which also contained a similar kind of validation clause in section 39. The Supreme Court after interpreting the validation clause involved before it, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e valid, the order can be rectified under section 22 of the Principal Act which gives the power of rectification to High Court also. The validating Act can render ineffective judgments and orders of a competent court or an authority, provided, it by retrospective legislation removes the cause of invalidity or the basis which had led to those judgments. If ultimately it is found that the disputed piece of legislation is a valid piece of legislation there is in my opinion no need to have recourse to the validation clause. There being no invalidity in the order or judgment of a court or authority the recourse to validation clause is not at all called for. The error or defect, if it can be rectified under the power conferred on the court by the Principal Act, the validation clause will not come in the way to the court or the authority concerned. The provisions of section 22 of the U.P. Sales Tax Act can be invoked in circumstances for rectification of mistake. This section gives suo motu power as well as power to rectify any mistake in any order passed by the court under the Act, apparent on the record within three years from the date of order sought to be rectified. Next it was urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court may send the copy of the decision to the Tribunal for fresh determination of the amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision of the High Court. A plain reading of section 11(8) clearly demonstrates that the High Court may send a copy of the judgment to the Tribunal for fresh determination of the amount. To put it differently the calculation part of the amount of tax or fee of penalty shall be done by the Tribunal if not done by the High Court and pass the necessary orders to dispose of the case in conformity with the judgment of the High Court. No dispute is left open for decision to the Tribunal after the decision of the High Court. The decision making body is the High Court and the Tribunal has to pass a consequential order in conformity with the orders of the High Court. It does not mean that the order ceases to be that of High Court if the Tribunal has determined the amount of tax, fee and penalty afresh in the light of the judgment of the High Court. Strong reliance was placed upon a judgment of this court in the case of Indo International Industries v. Commissioner, Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to render decision of questions of law preferred to it. If the decision of the High Court does not require determination of the amount of tax, fee or penalty afresh, that is, where the altered inspite of the decision of the High Court, nothing further is to be done to make the decision of the High Court effective (sic). The final order remains that of the Tribunal. Where, however, the amount is to be determined afresh as a result of the decision rendered by the High Court on the questions of law involved in the case, a copy of the decision of the High Court is to be sent to the Tribunal which shall 'thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision'. That is to say, the matter is to be finally disposed of by the Tribunal in conformity with the decision of the High Court. In either case, therefore, the order which effectively disposes of the controversy is the one passed by the Tribunal, because under section 11, even as it stands today in order to bringing the controversy to a close, so far as it relates to the amount payable by a dealer, is the one passed by the Tribunal. The above observations should be consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law of the land and is binding on every authority, Tribunal and court in view of article 141 of the Constitution of India. The law declared by the Supreme Court shall be binding on all courts within territory of India. It has also been held that even obiter dicta of the Supreme Court are binding under article 141 of the Constitution of India. A judgment of the High Court which refuses to follow the direction of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court, is a nullity (see Narendra v. Sujeet [1984] 2 SCC 402). Now the only question which is left is as to whether in view of the subsequent judgment of the Supreme Court given in the case of Hotel Balaji [1993] 88 STC 98; [1993] UPTC 318 there is an error apparent in the judgment of the High Court taking a contrary view, to be rectified under section 22 of the Act. This court in the case of Ram Singh and Sons Engineering Works v. State of Uttar Pradesh [1977] 39 STC 424; [1977] UPTC 74 followed in Hotel Clarks Shiraz v. Commissioner of Sales Tax [1992] UPTC 986 has held that such an error can be rectified under section 22 of the Act and the rectification applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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