TaxTMI 
TaxTMI 
2008 (7) TMI 871
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....and servicing charges collected towards servicing of the vehicles. The assessment order, for the assessment year 2002-03 dated December 31, 2003, was revised by the Deputy Commissioner (CT), Eluru on November 23, 2006, tax was levied on the amounts received by the petitioner towards replacement of spare parts supplied during the warranty period for two and three wheelers, and the net tax payable on revision was determined as Rs. 72,354. For the assessment year 2003-04, the respondent passed the assessment order on May 10, 2005 levying tax of Rs. 2,36,85,218. Aggrieved thereby, the petitioner preferred an appeal to the Appellate Deputy Commissioner who followed the judgment of the Supreme Court in Mohd. Ekram Khan Sons v. Commissioner of Trade Tax, U.P. [2004] 136 STC 515; [2004] 3 RC 173; 39 APSTJ 150 and, by order dated July 4, 2006, dismissed the appeal to the extent tax was levied on replacement of spare parts during the warranty period. Both the orders, i.e., the order of the revisional authority for the assessment year 2002-03, and the order of the appellate authority for the assessment year 2003-04, have attained finality. The petitioner would contend that, in view of t....
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.... 2003-04. Before examining the contentions raised it is necessary to have a brief look at the relevant statutory provisions. Under section 19(1) of the APGST Act, any dealer objecting to any order passed, or proceeding recorded by any authority, under the provisions of the Act may, within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed. Section 20 confers powers of revision and, under sub-section (1) thereof, the Commissioner may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it and, if such order or proceeding recorded is prejudicial to the interests of the Revenue, may make such inquiry or cause such inquiry to be made and, subject to the provisions of the Act, may initiate proceedings, revise, modify or set aside such order or proceeding or pass any such order with reference thereto. Against an order passed by the appellate authority under section 19, or an order of revision under section 20, a further appeal lies to the Sales Tax Appellate Tribunal (S.T.A.T) under section 21 of the Act. Against the order....
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....ed February 11, 2008, can only be executive instructions issued under article 162 of the Constitution of India. Article 162 provides that the executive power of a State shall extend to matters with respect to which the Legislature of the State has the power to make laws. Under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory provisions or rules which are justiciable. Even if there has been any breach of such executive instructions, that does not confer any right on a person to apply to the court for quashing orders in breach of such instructions. (G. J. Fernandez v. State of Mysore AIR 1967 SC 1753). Executive instructions can only supplement and not supplant the law, (Senior Superintendent of Post Offices v. Izhar Hussain [1989] 4 SCC 318, St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education [2003] 3 SCC 321), and cannot be so framed or utilised as to override the provisions of law as it would, then, destroy the very basis of the rule of law and strike at the very root of orderly administration of law. (Mann....
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....proper and trouble-free performance for a reasonable length of time and, therefore, the entire cost of warranty was to be borne by the manufacturer. The Supreme Court further held that, since the dealers had received payment from the manufacturers towards the price of the parts supplied to customers, the said transaction had to be subjected to levy of tax. The decision of the Supreme Court, enunciating a principle of law, is applicable to all cases irrespective of the stage of its pendency. The law laid down by the Supreme Court must be held to be the law from the inception, unless the Supreme Court itself indicates that its decision will operate rospectively. It is not open for Courts/Tribunals to apply the law laid down by the Supreme Court only from the date on which the judgment came to be passed. (M.A. Murthy v. State of Karnataka [2007] 4 ALD 105, G. Raja Babu v. The Govt. of A.P. [2007] 4 ALD 105). The Supreme Court has not held that its judgment, in Mohd. Ekram Khan & Sons [2004] 136 STC 515 (SC); [2004] 3 RC 173; 39 APSTJ 150, is prospective in its application. Prospective overruling is resorted to by the Supreme Court while superseding the law declared by it earlier....