TaxTMI 
TaxTMI 
2011 (3) TMI 1521
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....ng the goods in question taxable. The case set out in the petition is that the petitioner is a dealer registered under the provisions of the Act. It purchased animal feed in the shape of damaged wheat from Government agencies during the year 2005-06. "Animal feed" which by interpretation included "damaged wheat" being covered by entry 4 of Schedule B, was tax-free. The petitioner having paid the tax under mistake sought refund relying upon the judgment of this court in Garg Cattle Feed Industries v. Food Corporation of India [2009] 23 VST 94 (P&H). Since no decision was being taken on the claim of the petitioner, CWP Nos. 6979 of 2007, 18433 of 2007 and 7222 of 2008 were filed which were disposed of vide orders dated January 9, 2007, Dec....
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....interpreted by the honourable Supreme Court in Commissioner of Sales Tax, U.P. v. Ram Chandra Asha Ram (Decd.) Through L.Rs. [2001] 123 STC 415 (SC) as inclusive of everything that is fed to cattle including damaged wheat. Following the said judgment, a Division Bench of this court in Garg Cattle Feed Industries [2009] 23 VST 94 (P&H) held that the expression "cattle feed" would include damaged rice. By way of impugned amendment, damaged wheat has been excluded from "animal feed" from retrospective effect. The original entry and the amended entry are as under: Unamended entry Amended entry Animal feed, that is to say aquatic feed, poultry feed and cattle feed including supplements, concentrates and additives to these foods, husk....
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....(Tata Iron & Steel Co. Ltd. v. State of Bihar [1958] 9 STC 267 (SC); AIR 1958 SC 452, Chhotabhai Jethabhai Patel and Co. v. Union of India AIR 1962 SC 1006, Rai Ramkrishna v. State of Bihar [1963] 50 ITR 170 (SC); AIR 1963 SC 1667 and Shiv Dutt Rai Fateh Chand v. Union of India [1983] 53 STC 289 (SC); [1984] 148 ITR 664 (SC); [1983] 3 SCC 529). In Shiv Dutt Rai Fateh Chand [1983] 53 STC 289 (SC); [1983] 3 SCC 529, it was observed (pages 311-313 in 53 STC): "32. The next point to be considered is whether the imposition and collection of penalty with retrospective effect amounts to an imposition of an unreasonable restriction on the fundamental right of the petitioners to own property and to carry on business guaranteed under article 19(1)....
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....rty under article 19(1)(f) or depriving the person of property under article 31(1). If, on the one hand, the tax enactment in question were beyond the legislative competence of the Union or a State necessarily different considerations arise. Such unauthorised imposition would undoubtedly not be a reasonable restriction on the right to hold property besides being an unreasonable restraint on the carrying on of business, if the tax in question is one which is laid on a person in respect of his business activity.' 33. The court was more emphatic in Rai Ramkrishna v. State of Bihar [1963] 50 ITR 170 (SC); [1964] 1 SCR 897 about the power of the Legislature in India to enact retrospective taxation laws. It held that if in its essential fe....
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.... 31, 1961, i.e., till the date on which an Ordinance which was replaced by the validating Act in question came into force should be deemed to have been commenced and conducted in accordance with the provisions of the validating Act and if not already completed should be continued and completed in accordance with the validating Act was opposed to article 304(b) and article 19(1)(f) and (g). It was urged in that case on the basis of the observation made in Sutherland on 'statutes and statutory constructionn to the effect that: 'Tax statutes may be retrospective if the Legislature clearly so intends. If the retroactive feature of a law is arbitrary and burdensome the statute will not be sustained.' that the length of retrospecti....
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....t uses its legislative power to cure the alleged infirmity in the earlier Act. In such a case, if after the final judicial verdict is pronounced in the matter the Legislature passes a validating Act, it may well cover a long period taken by the judicial proceedings in court and yet it would be inappropriate to hold that because the retrospective operation covers a long period, therefore, the restriction imposed by it is unreasonable. That is why we think the test of the length of time covered by the retrospective operation cannot by itself be treated as a decisive test. Take the present case. The earlier Act was passed in 1950 and came into force on April 1, 1950, and the tax imposed by it was being collected until an order of injunction....