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TMI Blog2016 (12) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... as it ex facie introduces the levy of tax which was not existing under the old Act and therefore, could not be introduced by way of the amendment as has been done now. Consequently, Clause 19 of Constitution (One Hundred and First Amendment) Act, 2016 does not in any way prima facie saves the imposition of the tax through Online Purchase or E-Commerce particularly for personal use. Thus there is a complete lack of legislative competence as such the impugned provisions are rendered unconstitutional. Interim relief granted during the pendency of writ petition - as an interim measure, the petitioner shall be entitled to trade through E-Commerce and on Online Purchase system but for the said purpose, the petitioner in order to secure the intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchase. The challenge is that the mode of transaction cannot be the foundation or basis of such imposition, inasmuch as, the constitution bench judgment in the case of M/s Jindal Stainless Ltd. & Anr. Vs. State of Haryana & Ors. and other connected appeals - 2016 SCC OnLine SC 1260 has dealt with the matter and in view of the ratio of the aforesaid decision such discrimination being practised by the State renders the provisions of Section 4A ultravires as being violative of Articles 14, 286 & 304(a) of the Constitution of India. The second limb of the argument on the constitutionality and validity of such imposition is being advanced on the ground that by virtue of the 101st amendment to the Constitution vide notification dated 08th S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been opposed by the State. In view of the contentions so raised it would be appropriate that the learned counsel for the State is called upon to receive its instructions on behalf of the State and assist the Court on Monday i.e. on 19.12.2016. List on 19.12.2016. A copy of the order be given to the learned Chief Standing Counsel for necessary compliance today." Today, learned Additional Chief Standing Counsel has produced the gist of the instructions given in writing by the Commissioner Commercial Tax, Government of Uttar Pradesh, Lucknow responding to the queries raised by the Court under the order aforesaid. Learned Additional Chief Standing Counsel has urged that since Clause 19 of the Constitution (One Hundred and First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year and therefore, the charging Section i.e., Section 4 of 2007 Act, continues to exist and which could have been amended by the State Legislature. In view of the aforesaid saving provision of Clause 19 what could have been amended or repealed, was the existing provisions and no fresh charge or levy or tax could have been introduced that has been done by introducing Section 4-A under the impugned amendment. He further submits that discrimination is at large and even otherwise, such inter-State commerce cannot be impeded in view of the constitutional protection guaranteed to the States under the federal structure of the Constitution. It is urged that this would create unlawful fiscal barriers that would result in unprecedented price hikes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Writ Petition No.432 of 2016, vide order dated 16.03.2016 to urge, that in order to protect the revenue of the State, the petitioner shall furnish Bank Guarantee to the authorities concerned by mentioning it appropriately in the prescribed form for any such liability that may arise upon final decision in the writ petition. We have considered the submissions raised and prima facie we find this amendment inserted by way of U.P. Act No.18 of 2016 to be completely beyond the authority and competence of the State Legislature as it ex facie introduces the levy of tax which was not existing under the old Act and therefore, could not be introduced by way of the amendment as has been done now. Consequently, Clause 19 of Constitution (One ..... X X X X Extracts X X X X X X X X Extracts X X X X
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