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Commissioner of Sales Tax Vs. SatyanaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Reference No. 173 of 1972.
Judge
Reported in[1974]33STC187(All)
AppellantCommissioner of Sales Tax
RespondentSatyanaraIn Singh
Advocates:Standing Counsel
Excerpt:
- .....sales tax officer to rs. 9,000. while determining the rate applicable for calculating sales tax on sale of bricks, the additional judge (revisions), sales tax, relied upon certain decisions of the high court wherein it has been decided that the notification dated 1st december, 1962, issued under section 3-a, levying sales tax on the sale of bricks at the rate of 7 per cent was invalid, and held that such turnover was liable to be taxed at the rate of 2 per cent. 2. it appears that it was attempted to validate the notification dated 1st december, 1962, by enacting the u.p. sales tax (amendment and validation) ordinance, 1970 (u.p. ordinance no. 2 of 1970). section 2 of that ordinance sought to make certain changes in the phraseology of section 3-a of the sales tax act and section 7.....
Judgment:

H.N. Seth, J.

1. The assessee Satya Narain Singh carried on the business of manufacturing and selling bricks. For the assessment year 1964-65, the Sales Tax Officer determined the turnover of bricks sold by the assessee as Rs. 20,500, and in view of Notification No. ST-6438/X -- 1012-1962 dated 1st December, 1962, issued under Section 3-A of the U.P. Sales Tax Act, calculated the tax payable on that turnover at the rate of 7 per cent.Ultimately, by an order dated 3rd July, 1971, the Additional Judge (Revisions), Sales Tax, Varanasi, reduced the turnover determined by the Sales Tax Officer to Rs. 9,000. While determining the rate applicable for calculating sales tax on sale of bricks, the Additional Judge (Revisions), Sales Tax, relied upon certain decisions of the High Court wherein it has been decided that the notification dated 1st December, 1962, issued under Section 3-A, levying sales tax on the sale of bricks at the rate of 7 per cent was invalid, and held that such turnover was liable to be taxed at the rate of 2 per cent.

2. It appears that it was attempted to validate the notification dated 1st December, 1962, by enacting the U.P. Sales Tax (Amendment and Validation) Ordinance, 1970 (U.P. Ordinance No. 2 of 1970). Section 2 of that Ordinance sought to make certain changes in the phraseology of Section 3-A of the Sales Tax Act and Section 7 provided that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, every notification issued or purporting to have been issued under Section 3-A of the principal Act, before the commencement of the Ordinance, shall be deemed to have been issued under that section as amended by the Ordinance and shall be so interpreted and be deemed to be and always to have been as valid as if the provisions of the Ordinance had been in force at all material times. Accordingly, anything done or any action taken (including any order made, proceedings taken, jurisdiction exercised, assessment made, or tax levied, collected or paid, purporting to have been done or taken in pursuance of such notification) shall be deemed to be, and always to have been, validly and lawfully done or taken. However, in the case of Gurna Mal v. State of U.P. and Anr. [1970] 26 S.T.C. 270. a Division Bench of this Court took the view that notwithstanding the provisions in Ordinance No. 2 of 1970, the notification dated 1st December, 1962, issued under Section 3-A had not been validated and that the turnover of sale of bricks continued to be taxable under Section 3 of the U.P. Sales Tax Act at 2 per cent. Thereafter, the State Legislature passed an Act known as the Uttar Pradesh Sales Tax (Amendment and Validation) Act, 1971, which was published in the U.P. Gazette dated 22nd August, 1971. By Section 3 of this Act, Sections 3 and 3-A of the U.P. Sales Tax Act were substituted by new Sections 3, 3-A and 3-AB. New Section 3-A provided that the turnover in respect of the goods specified in the second column of the First Schedule shall be liable to tax at the point specified in the third column thereof at such rate, not exceeding ten per cent, as the State Government may, by notification in the Gazette, declare. It also provided that in respect of goods the rates prevailing by virtue of Section 3-AB immediately before the commencement of the Validation Act, 1971, shall continue to be in force until altered by a notification. Section 3-AB then provided that notwithstanding any judgment, decree or order of any court, any tax imposed, assessed, levied or collected, or purporting to have been imposed, assessed, levied or collected before the commencement of the U.P. Sales Tax (Amendment and Validation) Act under any of the notifications specified in the second Schedule shall be deemed to have been validly imposed, assessed, levied or collected. The First Schedule to Section 3-A, as introduced by the 1971 Amendment Act, provides that bricks if manufactured in Uttar Pradesh are to be taxed at the point of sale by the manufacturer, and if imported from outside Uttar Pradesh, at the point of sale by the importer. The second Schedule referred to in the newly added Section 3-AB purports to validate Notification No. ST-6438/X -- 1012-1962 dated 1st December, 1962, under which it was provided that the turnover of sale of bricks was to be taxed at the rate of 7 per cent. Accordingly, some time after 28th August, 1971, the Commissioner of Sales Tax moved an application before the Judge (Revisions), Sales Tax, praying that under Section 11(3) of the U.P. Sales Tax Act, he should state the case and refer the question, the English translation of which would read as follows, for the opinion of the High Court:

Whether, in view of the aforesaid facts and the Government Amendment Bill, 1971, the turnover of bricks for the year 1964-65 should be taxed at the rate of 7 per cent or 2 per cent?'

3. The Judge (Revisions), Sales Tax, has accordingly stated the case and referred the aforementioned question for the opinion of this court.

4. It appears to us that reference to the U.P. Sales Tax (Amendment and Validation) Bill, 1971, made in the application for reference as also in the question referred to this court has been made under some misapprehension. By the time the application for reference came to be made, the U.P. Sales Tax (Amendment and Validation) Act, 1971 (U.P. Act 20 of 1971), had already come into force with effect from 22nd August, 1971, and the real question, therefore, that arose for consideration was whether in view of Act 20 of 1971, the assessee's turnover of sale of bricks during the year 1964-65, was liable to be taxed at the rate of 7 per cent or 2 per cent. Accordingly, we have reframed the question referred to us as follows:

Whether, in view of the aforesaid facts and the provisions of the U.P. Sales Tax (Amendment and Validation) Act, 1971, the turnover of the sale of bricks, for the year 1964-65, should have been taxed at the rate of 7 per cent or 2 per cent?

5. In view of the provisions contained in Sections 3-A and 3-AB as introduced by the U.P. Sales Tax (Amendment and Validation) Act, 1971, the validity of which has since been upheld by the Supreme Court, it cannot be doubted that under Notification No. ST-6438/X -- 1012-1962 dated 1st December, 1962, the turnover of bricks sold by a manufacturer in U.P. throughout continued to be taxable at the rate of 7 per cent at the point of sale made by the manufacturer. Only question that arises for consideration is whether while answering the question referred to this court, this court can take into consideration the provisions made in the U.P. Sales Tax (Amendment and Validation) Act, 1971, which came into force on 22nd August, 1971, applying its provisions with retrospective effect in such manner that by fiction of law it will be deemed that these provisions were in force even in the year 1964-65.

6. A similar question arose for consideration before the Supreme Court in the case of Commissioner of Sales Tax, U.P. v. Bijli Cotton Mitts, Hathras A.I.R. 1964 S,C. 1594, In this case, the Supreme Court observed that undoubtedly when the Tribunal is called upon to decide a taxing dispute it must apply the relevant law applicable to the particular transaction and that law normally is the law applicable as on the date on which the transaction in dispute had taken place. If the law, which the Tribunal seeks to apply to the dispute, is amended, so as to make the law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended. Similarly, when the question has been referred to the High Court, and in the meanwhile the law is amended with retrospective operation, it would be the duty of the High Court to apply the law so amended. If the question referred to the High Court is couched in terms of sufficient amplitude so as to cover an enquiry into the question in the light of the amended law and the enquiry does not necessitate investigation of fresh facts, the High Court, while taking notice of the law, which has been substituted for the original provision, merely gives effect to the legislative intent and does no more than what is necessarily deemed to be implicit in the question referred by the Tribunal. If the question is not so couched that it invites the High Court to decide the question in the light of the law as amended or if it necessitates investigation of facts which have not been investigated, the High Court may refuse to answer the question. Application of the relevant law to the problem raised in reference before the High Court normally is not excluded merely because at the date when the Tribunal decided the question, the relevant law was not or could not be brought to its notice. There is nothing so peculiar in the nature of a reference under the Sales Tax Act that in deciding it the High Court is compelled to apply the law which since the date of reference made by the Tribunal has been superseded by the Legislature and is obliged to refuse to apply the law which by legislative direction has to be applied to the particular transaction which is the subject-matter of the reference.

7. In the case before us, we find that the question referred to this court, as reframed by us, is couched so as to cover an inquiry into the question referred in the light of the amended law, i. e., the U.P. Sales Tax (Amendment and Validation) Act, 1971, and, accordingly, it invites the High Court to decide the question in the light of such law. Further, in order to answer the question referred to us no further investigation of facts is necessary. Accordingly, while determining whether the turnover of sale of bricks during the year 1964-65 could be taxed at the rate of 7 per cent as provided in Notification No. ST-6438/X -- 1012-1962 dated 1st December, 1962, the High Court can take into consideration the change, which has been made with retrospective effect, by the U.P. Sales Tax (Amendment and Validation) Act, 1971. It is now beyond doubt that Section 3 of the U.P. Sales Tax (Amendment and Validation) Act, 1971, has the effect of validating the notification dated 1st December, 1962, with retrospective effect. Accordingly,during the assessment year 1964-65 also, the turnover of sale of bricks at the point of sale by the manufacturer was taxable at the rate of 7 per cent. The question referred to us for opinion is, accordingly, answered as follows:

8. In view of the provisions of the U.P. Sales Tax (Amendment and Validation) Act, 1971, the sale of bricks during the assessment year 1964-65 was to be taxed at 7 per cent and not at 2 per cent. Since no one has appeared for the respondents we make no order as to costs of this reference.


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