S.C. Manchanda, J.
1. This is a writ petition under Article 226 of the Constitution by the asses-see directed against the order of the Judge (Revisions) Sales Tax, U. P. Lucknow dated the 6th February 1961 and the order of the Sales Tax Officer dated the 2nd of November 1957, directing that the sum of Rs. 1397 shall be kept in deposit and not refunded and that the petitioner should deposit a further sum of Rs. 57.11 P. under Section 8-A (4) of the U.P. Sales Tax Act (hereinafter referred to as the Act). The prayer is for the quashing of the aforesaid two orders and for a writ of mandamus or any other appropriate writ requiring the respondent, to refund the amount of Rs. 1397 and the sum of Rs. 57.11 P. realised under Section 8-A(4) of the Act.
2. The material facts are these: The petitioner is a firm carrying on business, inter alia, in food-grains and oil seeds at Gola Gokarannath in the district of Lakhimpur Kheri. The sale of food-grains was not taxable in U. P. under the U.P. Sales Tax Act before April 1, 1956. From April 1, 1956, by notification No. ST-909/X dated 31st March 1956 sales of foodgrains were made taxableat 6 pies per rupee at all points of sales. By notification No. ST-6068/S-1097-56 dated 30th of September, 1956, foodgrain dealers were given the option to obtain exemption subject to payment of fee on slabs of turnover and by notification No. ST-7048/X-1097-55, dated 5-1-1957, retrospective effect was given from 1-4-1956, to the aforementioned notification dated 30-9-1956. The petitioner had realised sales tax of Rs. 2055 on a turnover of Rs. 65,792 of foodgrains for the first two quarters of 1956-57 from his customers. After the promulgation of the aforementioned notification dated 30-9-1956, the petitioner applied and obtained the benefit of exemption on his turnover for the entire year 1956-57, after paying the exemption fee of Rs. 658. Out of the sum of Rs. 2055 which had been realised by the assessee, the Sales Tax Officer by his order dated 2nd November 1957, directed that the amount of Rs. 658 exemption fee would be credited towards the exemption fee and the balance of the sum of Rs. 1397 will be kept in deposit under Section 8-A(4) of the U.P. Sales Tax Act. The assessee was further directed to deposit Rs. 57.11 on the sale of cotton under Section 8-A(4) of the Act. The petitioner filed a revision from the said order contending, inter alia, that Section 8-A(4) of the Act under which the order of the Sales Tax Officer was passed was ultra vires. The Judge (Revisions), however, held, relying upon the decision of his predecessor that the provisions of Section 8-A(4) were intra vires. Hence, this petition at the instance of the assessee.
3. The question of the vires of Section 8-A(4) of the Act had come up for consideration in a reference under the Sales Tax Act and upon a difference of opinion, the matter was referred to me as the third Judge. I held, in view of the decision of the Supreme Court in R. Abdul Quader & Co. v. Sales Tax Officer, Second Circle, Hyderabad : 6SCR867 where a similar provision in Section 11 (2) of the Hyderabad General Sales Tax Act was declared to be ultra vires and the decision of the Madras High Court in Indian Aluminium Co. v. The State of Madras (1962) 13 STC 9: AIR 1963 Mad 116 was overruled, that it was not possible to come to any other conclusion other than that Section 8-A(4) of the Act was also ultra vires Accordingly, the question referred was answered in favour of the assessee. Against that order, I am informed by the learned Junior Standing Counsel that an appeal to the Supreme Court has been filed and is pending. Since that decision of this Court declaring Section 8-A(4) of the Act to be ultra vires in a reference under the Sales Tax Act, the Supreme Court has ruled in K. S. Venkataraman & Co. (P) Ltd. v. State of Madras : 60ITR112(SC) , that the question of the vires of a provision of the Act cannot be adjudicated in any proceedings arising under that very Act in which the impugnedprovision finds a place. Therefore, in view of the Supreme Court decision in Venkataraman's case : 60ITR112(SC) , it may not be possible to hold that the view taken by this Court on the question of the vires of Section 8-A(4) is final and binding. The learned junior Standing counsel has, therefore, pressed upon me to decide the question of the vires of Section 8-A(4) de novo after considering the decision of the Gujarat High Court in Ramgopal and Sons v. Sales Tax Officer. Surat, (1965) 16 STC 1005 (Guj), where the aforesaid decision of the Supreme Court in : 6SCR867 (supra) has been distinguished and the provisions of Section 12-A(4) of the Bombay General Sales Tax Act were declared to be intra vires.
4. I have considered this decision but do not find any good and sufficient reason to take a different view from what I had earlier taken in the matter which was referred to me as a third Judge in STR No. 1639 of 1956 (All) Commr. of Sales Tax v. Ganga Sugar Corporation decided on 13-11-1964. In : 6SCR867 (supra), the Supreme Court was called upon to interpret Section 11(2) of the Hyderabad General Sales Tax Act which according to the learned junior Standing counsel is worded very widely as compared to Section 12-A (4) of the Bombay General Sales Tax Act and Section 8-A(4) of the U. P. Sales Tax Act, and therefore the decision of the Supreme Court should be confined to the vires of the provision of the Hyderabad General Sales Tax Act. In order to test this contention it will be advisable to read the three relevant provisions:
'Section 11(2) of the Hyderabad General Sales Tax Act: 'Notwithstanding anything to the contrary contained in any order of an officer or tribunal or the judgment decree or order of a Court, every person who has collected or collects on or after 1st May, 1950, any amount by way of tax 'otherwise than in accordance with the provisions of this Act', shall pay over to the Government, within such time and in such manner as may be prescribed the amount so collected by him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue,'
Section 12A(4) of the Bombay Sales Tax Act:
'If any person collects any amount by way of tax in contravention of the provisions of Sub-section (1) or (2) or if any registered dealer collects any amount by way of tax in excess of the amount payable by him under this Act the amount so collected shall, without prejudice to any prosecution that may be instituted against such person or dealer for an offence under this Act be forfeited to the Provincial Government and such person or dealer, as the case may be,shall within the prescribed period, pay such amount into a Government treasury and in default of such payment the amount shall be recovered as an arrear of land revenue'.
Section 8-A(4) of the U. P. Sales Tax Act:
'Without prejudice to the provisions of Clause (g) of Sub-section (2) of Section 14, the amount charged by any person as tax on sale of any goods, shall, notwithstanding contained in any other provision of this Act, be deposited by him in Government treasury within such period as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof,'
5. What is contended by Mr. Raia Ram Agarwal, to be more specific, is that Section 11(2) of the Hyderabad General Sales Tax Act refers to collection of 'any amount by way of tax otherwise than in accordance with the provisions of this Act' and as this provision made no mention of any tax on purchases and sales, therefore the Supreme Court had in Abdul Quader's case : 6SCR867 held it to be ultra vires; whereas in the Bombay and the U P. Sales Tax Act the words used expressly refer to the collection of tax on the sale or purchase of goods. It is no doubt true that the phraseology is different but it is the substance of the matter which has to be considered as was pointed out by the Supreme Court in Abdul Quader's case : 6SCR867 when dealing with the case of : 6SCR867 which had been cited and relied upon by the respondents before the Supreme Court. It was there observed:
'That decision was with respect to Section 8-B of the Madras General Sales Tax Act of 1939 as amended by Madras Act I of 1957. Though the words in Section 8-B(2) were not exactly the same as the words in Section 11(2), with which we are concerned here, the provision in substance was to the same effect as Section 11(2).'
Looking therefore at the substance of the provisions of Section 11(2), Hyderabad and Section 8A(4) of the U. P. Act, it is difficult to draw the distinction which the learned junior Standing counsel asks me to draw. In Section 11(2) of the Hyderabad General Sales Tax Act the words 'otherwise than in accordance with the provisions of this Act' refer only to the Hyderabad Sales Tax Act and to the collection of any tax other than that under that Act. This can only mean a tax on sale or purchase as the Hyderabad Sales Tax Act does not deal with any other matter Merely because the words 'tax on purchase and sale of goods' are not mentioned does not mean that the provision in the Sales Tax Act refers to something other than that relating to par-chase or sale of goods. The Supreme Court in Abdul Quader's case : 6SCR867 pointedly observed :
'If a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer .......
We are therefore of opinion that the State Legislature was incompetent to enact a provision like Section 11(2). We may also add that the provision contained in Section 20(c), being consequential to Section 11(2), will fall along with it. In consequence it was not open to the Sales Tax Officer to ask the appellant to make over what he had collected from the purchasers wrongly as sales tax '
Therefore, it is quite clear that the appellant in that case had collected certain amounts from purchasers by way of sales tax and yet it was held that that amount could not be directed to be deposited under Section 11(2) of the Hyderabad Sales Tax Act as the latter provision was ultra vires. The object under the Hyderabad, Bombay and U. P. Acts was precisely the same and that was, that a dealer who had under the guise of sales tax recovered tax from his customers which was not due under any of the provisions of the Sales Tax Act, should not be allowed to retain his ill-gotten gains but should be made to disgorge them by depositing them in to the State coffers. I do not conceive the function of this Court to be to whittle down the import of the decisions of the Supreme Court by drawing fine and subtle distinctions and if the substance of the provision considered by the Supreme Court is the same as the one under examination then the Supreme Court decision must be applied That is what this Court, the Mysore and Madras High Courts have done since the pronouncement of the Supreme Court in Abdul Quader's case : 6SCR867 . See, the decisions in STR No. 1639 of 1956 Commr. of Sales Tax v. Ganga Sugar Corporation of this Court decided on 13-11-1964 of Mysore High Court in K Hajee Khader Bacha Sahib v. Commercial Tax Officer. II Circle, Bangalore (1965) 16 STC 450: AIR 1965 Mys 120, and Madras High Court in Deputy Commr. of Commercial Taxes. Madras Division, Madras v. National Engineering Co: Madras (P) Ltd., (1965) 16 STC 873 (Mad), The solitary note of dissent has been struck by the Gujarat High Court, on the ground that the provision of Section 12A(4) of the Bombay Sales Tax Act uses the word 'forfeited' and not merely 'pay over' as found in Section 11(2) of the Hyderabad Act or 'deposited' in Section 8-A(4) of the U. P. Sales Tax Act, which distinguishes the case from Abdul Quader's case, : 6SCR867 as 'forfeiture' is nothing but a 'penalty'. Be that as it may even the word 'forfeiture' does not occur in Section 8-A(4) of the U. P. Act and therefore the ruling of the Gujarat High Court will not in any way help the Department to distinguish Abdul Quader's case : 6SCR867 from the facts of the present case. I would, therefore, hold that Section 8-A (4) is ultra vires.
6. It was next contended by learned junior standing counsel, that Section 8-A(4), should not be declared to be ultra vires in these proceedings as the petitioner has an alternative remedy by way of a suit and in any event a mandamus merely for the refund of Rs. 1397 which is the main prayer cannot be granted under Article 226 of the Constitution. Reliance for this proposition was placed on the decision of the Supreme Court in Suganmal v. State of Madhya Pradesh : 56ITR84(SC) and : 60ITR112(SC) (supra). There is no force in this contention. A suit in the circumstances of the case, after nearly a decade, since the order of the Sales Tax Officer was passed on 2-11-1957, would hardly be an adequate and equally efficacious remedy. Venkataraman's case : 60ITR112(SC) does not lay down that a suit is the only remedy for claiming a declaration as to the vires of a particular provision of the Sales Tax Act or for the refund of any amount which has been paid to the Sales Tax Department. The decision in : 56ITR84(SC) (Supra) is also no authority for the proposition that in no case can a refund of tax be ordered by the issue of a writ of mandamus. All that decision laid down was that if the prayer of refund is the sole relief claimed then, ordinarily, Article 226 would not be the proper remedy. A Division Bench of this Court in Chhagan Lal Rathi v. Income Tax Officer, Kanpur : 58ITR777(All) has rejected such a contention relying upon the decision of the Supreme Court in, State of Madhya Pradesh v Bhailal Bhai, AIR 1964 SC 1006.
7. Lastly, it was contended that no prejudice had been caused as the petitioner was being asked to refund only that which he had recovered as sales tax from his customers. This same contention could very well have been raised before the Supreme Court in Abdul Quader's case : 6SCR867 but it was not advanced or considered for the very good reason that it is only an argument of despair for when a provision itself is declared to be ultra vires the question of prejudice can hardly arise.
8. For the reasons given above the order of the Judge (Revisions) dated the 6th of February 1961, and that of the Sales Tax Officer dated 2nd November 1957, is directed to be quashed and the respondents shall refund the amount of Rs. 1397 and the sum of Rs. 57.11 if realised under Section 8-A(4)of the U.P. Sales Tax Act. The petition isaccordingly allowed with costs.