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2005 (9) TMI 300
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.... the Allahabad High Court. 2.. Briefly stated the facts are as follows: The respondent is a manufacturer and dealer of polyester staples fiber. It had collected, from its customers, tax in excess of what was prescribed. It is an admitted position that these amounts were deposited with the Government. The respondent had challenged the assessment and its appeal was allowed. As the tax liability was held to be lower, the concerned officer passed an order of refund but directed that the amount be deposited in the Treasury in view of section 29-A of the U.P. Trade Tax Act. 3.. In the appeal, the Deputy Commissioner (Appeals) granted relief to the extent of Rs. 417 but confirmed the order of the assessing authority directing deposit of t....
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....here any amount is realised from any person by any dealer purporting to do so by way of realisation of tax on the sale of any goods to such person, such dealer shall deposit the entire amount so realised into the Government treasury, within such period as may be prescribed, notwithstanding that the dealer is not liable to pay such amount as tax or that only a part of it is due from him as tax under this Act. (2) Any amount deposited by any dealer under sub-section (1) shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives, and the deposit shall discharge such dealer of the liability in respect thereof to the extent of the....
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.... (SC) [1964] 6 SCR 867, wherein it was observed as follows: "The provision however is attempted to be justified on the ground that though it may not be open to a State Legislature to make provision for the recovery of an amount which is not a tax under entry 54 of List II in a law made for that purpose, it would still be open to the Legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax, as part of the incidental and ancillary power to make provision for the levy and collection of such tax............. But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entr....
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....t a law in respect of matters necessarily incidental to 'tax on the sale and purchase of goods'. But a provision compelling a dealer who has deliberately or erroneously recovered an amount from the purchaser on a representation that he is entitled to recover it to recoup himself for payment of tax, to pay over that amount to the State cannot, in our judgment, be regarded as necessarily incidental to entry 54, List II. In effect the provision is one for levying an amount as tax which the State is incompetent to levy. A mere device cannot be permitted to defeat the provisions of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled t....
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....sa reported in See [1961 12 STC 357. [1962] 1 SCR 549. It was held that R.S. Joshi's case See [1977] 40 STC 497. disapproved of the decision in Ashoka Marketing's case See [1970] 26 STC 254 (SC); (1970) 1 SCC 354. and reaffirmed the view taken in Orient Paper Mills' case See [1961 12 STC 357.. The Constitution Bench also took note of a subsequent decision in the case of State of Orissa v. Orissa Cement Ltd. See [1986] 61 STC 79 (1985) Supp SCC 608, wherein also Ashoka Marketing's case See [1973] 32 STC 1 (SC). was held to have been dissented in R.S. Joshi's case*. The Constitution Bench of this Court upheld the constitutionality of the unamended section 29-A and held that it was within the legislative competence of the State Legisl....
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....view, it is not at all necessary to go into this submission. In this case, we are concerned with the unamended section 29-A. Even though the Allahabad High Court had held this provision to be unconstitutional, in the appeal carried to this Court it has been declared that the section was within the legislative competence of the State Legislature. The appeal was a continuation of the same proceeding and the finality could only be given by the judgment of this Court. Thus in any view of the matter it will have to be held that unamended section 29-A always remained on the statute book and required no re-enactment. Thus, even if the submission of Mr. Goel is accepted, the effect would be that it is only the amended section 29-A which might requi....