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TMI Blog2022 (7) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... now pends for appeal it can very well be said that whether the original Act indeed satisfy the constitutional tests within ambit of Article 304(a) of the Constitution will be taken care of the Appellate forum i.e., the Division Bench of the Hon ble Calcutta High Court and it is only incumbent upon us to decide whether the Amending Act of 2017 i.e., Finance Act of 2017 whereby the Entry Tax Act was validated and given retrospective effect is hit by the lack of legislative competence. It must be held that the transitional provision contained in Section 19 of the 101st Amendment Act cannot come in aid to save the amendment of the Entry Tax Act introduced by way of Finance Act, 2017. The State Legislature cannot be said to have legislative competence to bring in the impugned amendment and validation of the Act - Even assuming for a moment that the West Bengal Entry Tax Act was not struck down by any judgment of the High Court can it be said that the amendment introduced retrospectively and validation of the Act by way of introducing Finance Act of 2017 is within the legislative competence of the State Government? Having regard to the deletion of Entry 52 of the State List and bearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 Uma Poly Solutions Pvt. Ltd. -Do- RN-1097/2019 Lumino Industries Ltd. -Do- RN-399/2019 Lumino Industries Ltd. -Do- RN-1438/2019 Next Education Pvt. Ltd. -Do- RN-1515/2018 Eskag Pharma Pvt. Ltd. -Do- RN-1516/2018 Eskag Pharma Pvt. Ltd. -Do- RN-740/2019 Leade Liquor Manufacturing Pvt. Ltd. -Do- RN-509 of 2020 M/s Goodwill Non-Wovens Pvt. Ltd. Mr. Jaweid Ahmed Khan Ms. Poulami Bardhan Mr. Talha Ahmed Khan RN-993/19 Atibir Industries Co. Ltd. Somak Basu RN 954/18 Atibir Industries Co. Ltd. -Do- RN-1128 /19 Jvl Agro Industries Ltd. -Do- RN-307/18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/2019 Khokon Motor Works Pvt. Ltd. -Do- RN-1021/2019 Kdg Projects Pvt. Ltd -Do- RN-1022/2019 Kdg Projects Pvt. Ltd -Do- RN-1023/2019 Kdg Projects Pvt. Ltd -Do- RN-1024/2019 K.D. Gupta Co. -Do- RN-1025/2019 K.D. Gupta Co. -Do- RN-1026/2019 K.D. Gupta Co. -Do- RN-1044/2019 Saluja Auto Retails Pvt. Ltd. -Do- RN-1045/2019 Saluja Auto Mobiles -Do- RN-1508/2019 Krishna Alex Pvt. Ltd -Do- RN-1514/2019 N.F. Forgings Pvt. Ltd -Do- RN-1556/2019 Gokul Refoils Solvent Ltd -Do- RN-1557/2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 420/19 Lalwani Metallics Pvt Ltd -Do- RN-1436/19 Ganpati Chhajer -Do- RN-1437/19 Mars Fragrance Pvt Ltd -Do- RN-1438/19 Delsey India Pvt Ltd -Do- RN-930/2019 Samsung India Electronics Pvt. Ltd. Mr. Sujit Ghosh Mr Pujon Chatterjee Mr . MannatWaraich Mr . JoybrataMisra RN-517/2020 Samsung India Electronics Pvt. Ltd. -Do- R.N. 1002/2018 Sk. Selim @ Selim Sekh Mr Ananda Sen R.N. 2096/2017 Sk. Selim alias Selim Sekh -Do- RN- 1701/2017 Skipper Ltd. Piyal Gupta RN- 1328/2017 EMT Megatherm Pvt. Ltd. -Do- RN- 877/2019 Terai Tea Company Ltd. -Do- RN-879/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 that the Judicially evolved compensatory Tax Theory in Automobile Transport case and subsequently modified in Jindal case has no juristic basis. It is also opined that a tax on entry of goods into local area for use, sale or consumption therein is permissible although similar goods are not produced within the taxing State . Hon ble Supreme Court has further opined that States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally. Such measures if taken would not contravene Article 304(a) of the Constitution. The question whether the levies in the present case indeed satisfy this test is left to be determined by regular Benches hearing the matters . It is further held that the questions whether the entire State can be notified as a local area are left open to be determined in appropriate proceedings. and clause (a ) and (b) of Article 304 have to be read disjunctively. Section 19 of the 101st of Constitution Amendment Act has authorised a State to amend or repeal any provision of any liability relating to tax on goods or services or both in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the said order: in any event, since the tribunal is a specialized body, its view on the amended provisions would be of considerable persuasive value to this Court. The parties report that the matter is fixed next before the Tribunal on March 23, 2020. It also appears that the Tribunal will still assess the propriety of taking up the matter by the tribunal ahead of this Court deciding on the constitutional validity of the amended provisions. It is made clear that it will be open to the Tribunal to take up the matters before it and that there will be no impediment to the tribunal proceeding with the matters before it notwithstanding the pendency of the challenge to the Amending Act in this Court. The Tribunal will also be free to decide on the challenge to the Amending Act of 2017. In view of the above observation of Hon ble High Court Calcutta this Tribunal has taken up the hearing of the Petitions which have challenged the Constitutionality of the Amending Act of 2017 ( W.B Finance Act 2017) on various grounds. We have taken Tata Steel Limited Anr. Vs. State of West Bengal (RN-08/2018) as a lead case for our discussion. 2. Ld. Adv. for Tata Steel Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting laws will automatically lapse. He submits that section 19 has conferred the States Legislature that much limited power to amend the existing laws as to bring the same in line with sprit and purpose for which 101st amending Act was introduced. 2.2. Further submission of Mr. Gulati is that the Constitution Bench of 9 Hon ble Judges of Supreme Court in Jindal Stainless [(2017) 12 SCC I] have nowhere held that the tax could be imposed by a Legislature which was not at all competent and that too after violating Part-III of the Constitution which interalia includes Article 14 and 19 (1) (g) of the Constitution. He contended that by introducing Amending Act of 2017 the State Legislature has committed the said mistake. After 101st amendment the Legislature lost its plenary power to legislate in the field of Entry 52 with reference to Article 246 and the Amending Act 2017 is therefore, void abinitio. Besides, as per Section 5 of the Amending Act 2017 now goods, even if they have borne VAT / Sales Tax and goods moving from one local area to another local area within the State of West Bengal are sought to be brought within the net of taxation for the first time creating new set / clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 17 of the Amendment Act and no additional levy in the form of the additional tax upon newly created assesses can be imposed. He reiterated that section 19 of the 101st Amendment Act like Article 243N and Article 243ZF has conferred limited legislative power and the Entry Tax Act the source of which has already been eclipsed, cannot be revalidated under section 6 of the Amending Act 2017. 4. Ld. Adv. Mr. Avra Mazumder, appearing for Tata Sky Ltd. (RN-2499/17) and VST Industries Limited (RN-1671/18) and many other cases, while admitting that the State Legislature is competent to retrospectively validate an Act (declared by any Court unconstitutional) by removing defects therein, has argued that while validating the State Act, the core issue be considered would be whether the Legislature of State possess legislative competency over the subject matter which it seek to validate. He submitted that the subject matter Entry Tax has already been dropped from the State list of the 7th Schedule and therefore, State Legislature has lost the power of revalidating the said Entry Tax and section 19 has not conferred the State to revalidate the same by amendment. 5. Ld. Adv. Sujit Gh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was Entry No. 52 of list II was quashed in lock, stock and barrel after promulgation of 101st Amendment Act and therefore, the State Legislature has lost all power to reintroduce the Entry Tax Act by way of amendment. He submitted that section 19 of the 101st Amendment Act is applicable only on those provisions of law which were inforce on 16.09.16 and since the subject matter relating to Entry Tax was not in force on 16.09.16 the impugned Amendment Act 2017 is void abinitio and should be struck down. 7. Ld. Adv. Mr. Anil Dugar, appearing in the matter of RN-1413/19 and many other cases of similar nature, has submitted that the omission of Entry no. 52 took away the States power to legislate on the matter relating to Entry Tax. His further submission is that section 5 of the Amendment Act 2017 has subjected new classes of assesses to pay Entry Tax retrospectively which is unreasonable, unjust, unfair and unconstitutional and therefore, is violative of Article 304 (a) of the Constitution. 8. Ld. Adv. Jaweid Ahmed Khan, appearing on behalf of RN- 509/20 on behalf of M/s. Goodwill Non-wovens Pvt. Ltd. has submitted that section 5 of the Amendment Act, 2017 included in the tax n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Adv. Mr. Gulati and Mr. Sujit Ghosh and has submitted that the demand raised vide order dated 30.06.17 for the period 01.04.14 to 31.03.15 is wholly without jurisdiction and is liable to be quashed. 10. Ld. Adv. Dr. Sumit Chakraborty, appearing for Shree Renuka Sugar Limited (RN-2058/17) has submitted that the Judgement of Hon ble Single Bench dated 24.06.13 has not yet been stayed and its effect is still continuing since it is not yet reversed. His further submission is that the Judgement of Hon ble Supreme Court in Jindal Stainless Steel dated 11.11.16 has not been overruled not even impliedly and the said Judgement declaring entry tax ultra vires is still in force. He contended that the very attempt of the State legislature to remove the infirmities with regard to Article 304(a) as pointed by Hon ble Single Bench itself shows that the effect of Hon ble Single Bench is still continuing. He submitted that the Hon ble Supreme Court in paragraph 1160 of Jindal Stainless Steel Judgement dated 11.11.16 had held that the issue as to whether or not the levy under entry tax Act violates Article 304 (a) has been left open. Ld. Adv. Dr. Chakraborty, for all these reasons has contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Act to be operative but also directed the provision to be complied with. 12.1. Further submission of Ld. A.G is that Hon ble Supreme Court in the Judgement of Jindal Stainless dated 11.11.16 had been pleased to hold that non-discriminatory tax would not fall foul of Article 301 and Compensatory Tax Theory has no juristic basis. It was further held that Article 304(a) and 304(b) are to be read disjunctively and prior sanction of the President under Article 304(b) is not required if Article 304(a) is complied with. Ld. A.G has submitted that by virtue of this decision of Hon ble Supreme Court the findings of Hon ble Single Bench Judgement dated 24.06.13, insofar as it held that since the tax was not compensatory and prior sanction of the President would be required under Article 304(b), the tax imposed by the Entry Tax Act was bad, stood impliedly overruled more so when the State of West Bengal was represented before Hon ble Supreme Court at the time of hearing of this case. Ld. A.G, has, therefore, urged us that the Tribunal should proceed on the basis that Entry Tax Act was in existence on 06.03.17, the date when the Amending Act 2017 was enacted. 12.2. As regards the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake the decision already collected to stand under the re-enacted law. 13. The following citations have been considered: A. Prithvi Cotton Mills Ltd. Vs. Broock Borough Municipality Others. B. Sheen Golden Jewels (India) Pvt. Ltd. Vs. STO 2019 VIL 53 Ker C. M/s. Pankaj Adversity Vs. State of UP-2019- VIL-70-ALH- D. Ram Krishna Ramnath Ors. Vs. Janpad Sabha (1962) SC. 1073- E. Town Municipal Committee AIR 1964 SC 1166- K. F. Prakash Kumar Vs. State of Gujrat (2008) 2 SCC 409 G. Baiju A.A Vs. Sales Tax Office (219) VIL 601 (Kes) H. Jayam Co. Vs. Assistant Commission (2016) 15 SCC 125 I. Shree Chamunhdi Mopeds Ltd. Vs. Church of South Indian Trust Association (1992) 3 SCC J. Sunil Kr. Kovi Vs. Gopal Das Kobra (2016) 10 SCC 467 K. Tata Steel Vs. State of West Bengal MANU / WB/0151/2013 L. Jindal Stainless Steel Vs. St. of Haryana [(2017) 12 SCC 1] M. KSEB Vs. Indian Aluminum (1976) I SCC 466 14. We are inclined to frame the following issues for discussion: - (a) Is there any stay of the Judgement dated 24.06.13 by which the Entry Tax Act 2012 was declared void and unconstitutional? And if not, then can su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Division Bench to carry on assessment and there would be no refund. Ld. A.G submitted that even Hon ble Supreme Court in Jindal Stainless Steel had proceeded on the basis that Entry Tax Act of 2012 was in existence. What Ld. A.G wanted to explain the situation as if Hon ble Division Bench had not shown any red signal of stay rather a yellow signal to proceed slowly and the verdict of Hon ble Supreme Court in Jindal Stainless Steel dated 11.11.16 has encouraged the State Legislature to take it as green signal for going ahead for amendment with retrospective effect. (iii) I most humbly do not contribute to such submission of Ld. A.G. Hon ble Supreme Court in Shree Chamundi Moped after clearly distinguishing between quashing of an order and stay operation of an order, had been pleased to hold that quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(i) 16. Tata Steel Limited (RN- 08/18) is the lead case of our discussion. In paragraph 27 to 30 of the application the Petitioner has agitated this point very emphatically and elaborately that after promulgation of C.A Act 2016 the Entry 52 of State list II stood deleted w.e.f 16.09.16 thereby drying up the very legislative source / field relating to Entry Tax . The Respondent / State in a paragraph 10 of its affidavit-in-opposition dated 15.11.19 has given one liner denial without any elaboration. Ld. A.G in his written submission has mainly confined his argument on the scope and liberty given by section 19 of the C.A Act to the State Legislature. We shall discuss on this issue as framed in paragraph 14 (b)(ii) of this Judgement later. As regards the issue framed in paragraph 14 (b)(i) as to how the State Legislature obtained power to amend in the field of Entry Tax when the same was deleted Ld. A.G has not enlightened us any further except section 19 of C.A Act 2016. 16. 1. Entry 52 of list II was deleted under section 17 (b)(i) of the C.A Act 2016 w.e.f 16.09.16. The Parliament in order to introduce a uniform tax structure through out the Nation has introduced the 122nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render some of their field of taxation. Like Entry 52 of the State List Entry 92 92C of the Union List were entirely dropped. Some area of the Entry 54 of the State list has been truncated. In this way there were many changes of various entries of both Union and State list in order to make the tax structure smooth transparent and effective. Here the States have sacrificed some financial power along with Union Government to make this joint venture successful. Hon ble Court in paragraph 38 of the above Judgement has been pleased to observe the following:- 38. Tarun Jain s Goods and Services Tax, already copiously quoted, observes that in constitutional terms, GST is unique because of these aspects of its design: 1. It provides for the concurrent exercise of taxing powers by the Centre and the States on the same subject- a unique and unprecedented measure. 2. Both the Centre and the States are to act in tandem based on the GST Council s recommendations. 16.2. In the scenario given above it is palpably apparent that Entry 52 was dropped permanently so that State Legislature cannot make any law in the field of entry of goods into local area for consumption, use and sale ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power continued by virtue of section 19 until one year or until repeal of the previous enactment by the State GST Act. 17.1. Ld. Adv. for the Petitioners have submitted that section 19 has given limited legislative power to amend only those provisions on which Legislature has competency to enact. It is argued that with the dropping of Entry 52 w.e.f 16.09.16 the State Legislatures lost its competency to legislate on Entry Tax matters and therefore, section 19 is not coming to its help. Ld. Adv. for the petitioners have submitted that limited legislative power conferred in section 143(2) of the GI Act 1935 was much more wide than that of section 19 of C.A Act. 2016 and such power was given at a completely different time and perspective when Provinces had lost its power to impose terminal tax. It is submitted that the purpose of section 143 (2) of Government of India Act 1935 was to allow the Provinces to maintain continuity in levying the same tax which was being levied earlier without increasing or allowing incidence of tax in any manner and for that reason section 143(2) expressly provided the power to impose a tax by using the expression continue to be levied whereas such e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature, however laudable the purpose may be, without Legislative competency cannot amend the same with retrospective effect. The direction of Hon ble Division Bench dated 31.07.16 for continuation of assessment proceedings cannot be interpreted as a license given to the State Legislature to amend / validate the same during the pendency of appeal. In view of the direction of Hon ble Division Bench dated 31.07.16, I am consciously not discussing the issue as to whether the E.T Act was in force on 16.09.16 or not and am leaving it open because the answer of this issue either negative or positive is no longer essential for our discussion. 17.5. In order to implement uniform tax structure effectively both Union and States had to surrender some its erstwhile exclusive fields of taxation and there was a realignment of legislative power of the Union and the States. Hon ble Court in paragraph 7 of Sheen Golden Jewell (Supra) has observed the same in the following manner : - For the first time, in the taxation sphere, both the Union and the States have come to enjoy simultaneous powers, thus putting paid to the repugnancy doctrine, at least, in particular areas of taxation. With the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts of a statute, and together, they often convey a different meaning. The Hon ble Supreme Court in the case of Sunil Kumar Kori Vs. Gopal Das Kabra Ors. (2016) 10 SCC 467 in Para 19,22,23 has explained the aforesaid principles by holding, inter-alia, that the general rule is that when two different words are used by the same statute, prima facie one as to construe these different words as carrying different meanings The word substituted mentioned in section 17 of the CA Act 2016 is referring those Entries which were truncated and were given a new definition after partial change like Entry no. 54 and 62 of State list and the word omitted mentioned in section 17 is referring to those Entries which were deleted entirely like Entry 52 and 55 of State list. Having considered the above principle I, after harmonious construction of section 17 with section 19 of C.A Act 2016, am of the opinion that the word amended or repealed are to be read disjunctively but distributively and the word amended in section 19 is meant for those entries of 7th schedule which are partially deleted and or substituted like entry 62 and the word repealed is meant for those Entries of 7th s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. Section 143(2) of the G.I Act 1935 enacted : 143. (2) Any taxes, duties, cesses or fees which, immediately before the commencement of Part III of this Act, were being lawfully levied by any Provincial Government, municipality or other local authority or body for the purposes of the province, municipality, district or other local area under a law in force on the first day of January, nineteen hundred and thirty-five, may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Federal Legislative List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by the Federal Legislature. Hon ble Supreme Court in Ramkrishna Ramnath (Supra) has been pleased to opine the following: The precise import, significance and effect of the words continue to be levied and to be applied to the same purposes until provision to the contrary is made by the Federal Legislature is the common question which arises in these four appeals which come before us by virtue of certificates under Article 132 of the Constitution granted by the High Court of Madhya Pradesh at Nagpur. Thus I find that the very purpose of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la VAT Act relating to levy, assessment and recovery for the period prior to coming into force of the GST regime could be saved by enacting section 174 in the GST Act. 21. Entry 54 of the State list was not entirely deleted but was substituted and therefore, the power to frame legislation under Entry 54 was retained albeit in a truncated form. The State of Kerala had accordingly amended Kerala VAT Act u/s. 173 of KGST Act 2017 in order to make it in tune with the CA Act 2016 and again repealed the said Act through section 174(i) of KGST Act in order to prune out the dead matters. Section 174(ii) of the KGST Act is also a saving clause by which all previous operation of pre-amended Entry 54 of State list, any right or liability acquired, accrued or incurred there of etc. were protected. 22. The Petitioners of Sheen Golden Jewell challenged the constitutional validity of 174 of KGST Act on the ground that the pre-amended Entry 54 of State list ceased to exist after its substitution on 16.09.16; that nothing from pre-existing legislative regime saves itself from or transit across what is set out in section 19 which is a sun set clause; that any judicial effort to save or resurre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a power of the Legislature to repeal is co-extensive with the power to enact as enunciated in Ramkrishna Ramnath (Supra) and relied upon by the Ld. A.G is not applicable in the given facts and circumstances of the instant case in view of deletion of Entry 52 of State list. 25. Ld. Adv. Mr. Sujit Ghosh, by referring the Kelsen s Pure Theory of Law has convincingly pointed out that section 19 of C.A Act 2016 is subordinate to Article 245 and 246 of the Constitution in the hierarchy of law and therefore, section 19 could not be pressed into action to circumvent Articles 245 and 246 of the Constitution. This essentially means that even to effect the amendment the Respondent State was required to follow the mandate prescribed under Article 245 and 246(3) of the Constitution read with the seventh schedule of the Constitution. Since Entry 52 of seventh schedule is no longer existing the State has no legislative competency to amend anything on Entry Tax matters and Article 19 has not conferred such power. I therefore, hold that section 5 and 6 of Amending Act 2017 (West Bengal Finance Act 2017 enacted on 06.03.2017) is unconstitutional and non est in the eyes of law, having no l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 /2013). Later on Hon ble Division Bench of Calcutta High Court had allowed, vide order dated 18th February, 2020, subsequent prayers of some of the assesses, whereby amending Act of 2017 was challenged. It was observed in the order in any event, since the tribunal is a specialized body, its view on the amended provisions would be of considerable persuasive value to this Court. I agree with the views of Hon ble Judicial Member and Hon ble Chairman on challenge to the amending Act of 2017, which has been arrived after examination of the relevant provisions of law and various judgments of Hon ble Supreme Court of India with reference to adjudication of various questions of law in disposal of the applications vide this judgement. 2. I agree that the State of West Bengal had no legislative competency to introduce sec. 5 and 6 of West Bengal Finance Act, 2017 with effect from 1st July, 2017 and therefore the said provisions are ultra vires and unconstitutional, as observed by Hon ble Judicial Member in para 27 of this judgment. Per Justice Malay Marut Banerjee, Hon ble Chairman : I have the opportunity to go through the judgment well written by Brother Judicial Member Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Bengal Goods and Services Tax Act, 2017. The indubitable and undeniable position is that by virtue of the 101st Constitution Amendment Entry 52 of List II (State List) of the Seventh Schedule was omitted / deleted. It would be somehow beneficial to reproduce Entry 52 before it was omitted by the said amendment: 52. Taxes on the entry of goods into a local area for consumption, use or sell therein . It is, therefore, apparent from the above that the source or fountain of the legislative power of the State Legislature (in our case West Bengal) came to be dried up and, therefore, it could very well be said that the State Legislature did not have the legislative competence to introduce amendment in the Entry Tax Act of 2012 on 06/03/2017 by the West Bengal Finance Act, 2017 but the grey area is, Section 19 of the Constitution 101st Amendment Act. It would again be pertinent to reproduce the aforesaid Section 19 of the 101st Constitution Amendment which reads: 19. Notwithstanding anything in this Act, any provision or any law relating to tax on goods or services or on both in force in any State immediately before the commencement of this Act, which is inconsistent w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed.............. 30. Willoughby on Constitution of the United States , Second Edition, Volume I, page 10 says: The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognise it, and determines rights of the parties just as if such Statute had no application..................... Mr. Ghosh invited our attention to paragraph 13 14 of a decision of the Supreme Court reported in AIR 1967 SC 1480 in the case of B Shama Rao vs. Union Territory of Pondicherry. The said paragraphs are quoted below :- 13. Mr Desai s contention was that since the principal Act was ab initio void, the Amendment Act cannot resuscitate that which was stillborn. In support of this contention he relied on the decisions in Deepchand v. State of U. P. and Mahendralal v. State of U. P. Against that contention it was submitted that assuming that the principal Act suffered from the said defect the said defect was removed by the Amendment Act inasmuch as the Pondicherry Legislature re-enacted the said Act extending the Madras Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s frustrated and such an Act could have no efficacy. It was argued by the ld. Advocates appearing on behalf of the petitioners that the Entry Tax Act was not in force as on 16/09/2016 and the question of bringing in any amendment cannot and does not arise and the attempt by the State Legislature by introducing the impugned amendment is futile and unconstitutional. The ld. Advocate General, on the other hand, submitted that on the very date of delivery of the judgment by the Single Bench, the ld. Single Judge was pleased to grant stay of operation of the judgment and thereafter the Division Bench of the Chef Justice by an order dated 31/07/2013 made an order that assessment shall go on and there will be no refund of entry tax already collected. It was argued that when the Division Bench permitted assessment to be carried on how can it be said that the Entry Tax Act was not in existence. It was argued the decision of the Single Bench striking down the Entry Tax Act has not reached its finality and the matter will be examined by the Appellate Court in due course. The Ld. Advocate General argued that by virtue of observations made by the Hon ble Apex Court in the Jindal s case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matters. Bearing in mind the above observation of the Supreme Court and particularly when the judgment of the ld. Single Bench striking down the Entry Tax Act of 2012 now pends for appeal it can very well be said that whether the original Act indeed satisfy the constitutional tests within ambit of Article 304(a) of the Constitution will be taken care of the Appellate forum i.e., the Division Bench of the Hon ble Calcutta High Court and it is only incumbent upon us to decide whether the Amending Act of 2017 i.e., Finance Act of 2017 whereby the Entry Tax Act was validated and given retrospective effect is hit by the lack of legislative competence. The ld. Advocate General relying on a decision reported in AIR 1962 SC 1073 (Ram Krishna Ram Nath ors. vs. Janpad Sabha) argued that this decision gives the answer to the challenge made by the petitioners against the legislative competence of the State of West Bengal to amend the Entry Tax Act after deletion of Entry 52. The ld. Senior Counsel Mr. Gulati and other ld. Advocates for the petitioners submitted that the said decision does not in anyway help the State since in the said reported case there was no change in the incidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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