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Vulichi Audiseshiah and Co. Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petition No. 1794 of 1965
Judge
Reported in[1968]22STC222(AP)
AppellantVulichi Audiseshiah and Co.
RespondentThe State of Andhra Pradesh
Appellant Advocate G.V.R. Mohana Rao, Adv.
Respondent Advocate The Principal Government Pleader
DispositionPetition allowed
Excerpt:
- - the order of assessment in so far as that amount is concerned because of section 5(c) being ultra vires is bad in law......the petitioner to pay to the government. this is by virtue of section 5(c) of the andhra pradesh general sales tax act. it is this order of the respondent that is now questioned in this writ petition.3. it is not in doubt that section 5(c) is in material respects similar to section 11(2) of the hyderabad general sales tax act. the supreme court had occasion to consider (lie vires of this section and in abdul quader & co. v. sales tax officer [1964] 15 s.t.c. 403, their lordships held, 'section .11(2) of the hyderabad general sales tax act, 1950, which laid down (hat any amount collected by way of lax by any person otherwise than in accordance with the provisions of the act must be paid over to the government and in default of such payment, the said amount would be recovered from such.....
Judgment:
ORDER

Gopal Rao Ekbote, J.

1. This is an application under Article 226 of the Constitution of India seeking the issue of a writ of mandamus directing the respondents to refund the sum of Rs. 1,254.86 nP. being the amount illegally recovered from the petitioner from collections made by him in respect of sales of paddy pursuant to the orders passed in Assessment No. 1071/63-64 dated 29th March, 1965, on the file of the Additional Commercial Tax Officer, Guntur, and to pass such other orders as are lit.

2. The relevant facts are that the petitioners are dealers in black-grain, green-gram, chillies etc. and an; assessed on the file of the Additional Commercial Tax Officer, Guntur. They make purchases on their own account and on behalf of non-resident principals. While purchasing the paddy they pay tax on paddy. During the assessment year 1963-64 the export of paddy was banned and consequently the paddy which the petitioners had purchased had to be sold at a very early stage. While effecting the said sales to local dealers they had disclosed in their bills that they had paid 3 per cent, tax in respect of the paddy which they had purchased and then sold. While selling the paddy which they had. purchased they realised the tax which they had paid by purchasing the same. It is this amount which they realised at the time of sale at the second point that the respondent has directed the petitioner to pay to the Government. This is by virtue of Section 5(c) of the Andhra Pradesh General Sales Tax Act. It is this order of the respondent that is now questioned in this writ petition.

3. It is not in doubt that Section 5(c) is in material respects similar to Section 11(2) of the Hyderabad General Sales Tax Act. The Supreme Court had occasion to consider (lie vires of this section and in Abdul Quader & Co. v. Sales Tax Officer [1964] 15 S.T.C. 403, their Lordships held, 'section .11(2) of the Hyderabad General Sales Tax Act, 1950, which laid down (hat any amount collected by way of lax by any person otherwise than in accordance with the provisions of the Act must be paid over to the Government and in default of such payment, the said amount would be recovered from such person as if it were arrears of land revenue, was not within the competence of the State Legislature under entry 54 of List II of Schedule VII of the Constitution. The provisions of Section 20(c), being consequential to Section 11(2), would also fall along with it. Section 11(2) could not be justified even as an incidental or ancillary provision permitted under entry 54 of List II. It also did not fall under entry 26 of List II, because there was no element of regulation of trade and commerce in it.' Section 5(c) being in pan materia with Section 11(2) must be considered in the light of the above decision as ultra vires of the Constitution and consequently it cannot be given effect to. The respondent, therefore, was not right in assessing the petitioner to the said amount which he had collected from his purchasers. It is open to the purchasers to file a suit and recover that amount from the petitioner, but the petitioner cannot be directed by virtue of Section 5(c) to pay that amount to the Government.

4. The only question is as to what kind of writ can be issued in this case. Mandamus is out of place here because there is no statutory duty. The order of assessment in so far as that amount is concerned because of Section 5(c) being ultra vires is bad in law. That portion of the order, therefore, can be quashed under Article 226 of the Constitution by the issue of a writ of certiorari.

5. The writ petition, therefore, is allowed and a writ of certiorari issued quashing the portion of the assessment order which relates to the recovery of the amount from the petitioner which he had collected illegally from his purchasers. No order as to costs.


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