TMI Blog1995 (3) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... briefly be stated as follows: Purchase tax in the State of West Bengal was levied under section 4(6)(ii) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called "the Act of 1941") and section 4(2)(i) of the West Bengal Sales Tax Act, 1954 (hereinafter called "the Act of 1954") since the enactment of these provisions by the West Bengal Act 23 of 1977 with effect from October 10, 1977. These provisions for these two Acts were subsequently amended by the West Bengal Taxation Laws (Amendment) Act, 1990 and validation was made of all taxes on purchases levied or collected or purported to have been levied or collected under section 4(6)(ii) of the Act of 1941 and section 4(2)(i) of the Act of 1954. The validation was made by inserting sub-sections (2A) and (2B) in section 26A of the Act of 1941 and enacting section 28 in the Act of 1954. These validating provisions came into effect from February 26, 1990. By the West Bengal Taxation Laws (Amendment) Act, 1990 (West Bengal Act 6 of 1990), clause (iiia) was inserted in sub-section (7) of section 5 of the Act of 1941 and clause (iia) was inserted in section 4(4) of the Act of 1954, which were to operate retrospectively from Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these cases as purchase tax along with interest. Those cases were disposed of by this Tribunal by another judgment on December 20, 1991, in the case of Chloride Industries Ltd. v. Commissioner of Commercial Taxes [1992] 86 STC 327. After delivery of judgment in the case of Chloride Industries Ltd. [1992] 86 STC 327 (WBTT) the present application by M/s. Window Glass Limited was filed on September 22, 1992 in this Tribunal for getting refund of the amounts deposited by the applicants as purchase tax in terms of section 4(6)(ii) of the Act of 1941 on declaration that the provisions relating to purchase tax in the Act of 1941, the Amendment Ordinance 11 of 1990 and West Bengal Act 6 of 1990 were unconstitutional, illegal and of no effect. After the filing of the present application the Supreme Court held in the case of Hotel Balaji v. State of Andhra Pradesh [1993] 88 STC 98 that the decision of the Supreme Court in the case of Goodyear India Ltd. v. State of Haryana [1990] 76 STC 71, declaring the relevant provisions in the Haryana and Bombay Acts as outside legislative competence of respective State Legislatures, was not correct in law and that the relevant provisions for levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy and collection thereof by introduction of subsections (2A) and (2B) in section 26A of the Act of 1941 and section 28 in the Act of 1954 as the State Government was not competent to legislate on consignment tax and the infirmities of the relevant legislation were not removed by the amendments in 1990. The contention of the applicants in the present application for refund of the amounts paid as purchase tax under section 4(6)(ii) of the Act of 1941 is also on these three-fold grounds of challenge, as in the case of Rasoi Limited [1991] 80 STC 356 (WBTT), apart from other grounds. As such Mr. Somen Bose, the learned Senior Advocate for the applicants, has contended that the other points raised in the case of Rasoi Limited [1991] 80 STC 356 but not disposed of by this Tribunal should be taken up for decision in the present application, specially when the judgments of the Supreme Court in the case of Hotel Balaji v. State of Andhra Pradesh [1993] 88 STC 98 and Devi Dass Gopal Krishan [1994] 95 STC 170 regarding validity of levy of purchase tax were only on the ground of competence of the State Legislature to levy such tax under entry 54 in List II of the Seventh Schedule of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 404 of Statutory Interpretation by Francis Bennion, 1984 Edition). Binding or authoritative precedents are the decisions of the Supreme Court of India, in view of article 141 of the Constitution. Persuasive precedents are those decisions which a court is under no obligation to follow, but which it may take into consideration and attach to it such weight as it may think proper, such as foreign judgments, judgments of other High Courts to which a court is not subordinate, judicial dicta, etc. The binding character of decisions of the Supreme Court cannot be reviewed by any other court in India. It is only the Supreme Court which can overrule or modify its own decisions. This is what happened in the case of J.N. Sinha v. Union of India 1971 SLR 470. In that case the applicant, who possessed high qualifications and unblemished record of service, was retired compulsorily before attaining the age of 55 years. He filed a writ petition in the Delhi High Court against his retirement. At the hearing of the writ petition, six contentions were urged on behalf of the petitioner. Out of these six contentions, the Delhi High Court accepted the first contention by passing an order on December 22, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oints, which were not decided in the case of Rasoi Limited [1991] 80 STC 356 (WBTT). The case of S.P. Gupta v. President of India AIR 1982 SC 149 does not appear to have any relevance in the present case. 9.. Reliance has been placed by Mr. Somen Bose, learned Advocate for the applicants, on the cases of Charanjit Lal Chowdhury v. Union of India AIR 1951 SC 41, Dwarkadas Shrinivas v. Sholapur Spinning Weaving Co. Ltd. AIR 1954 SC 119, Amalgamated Coalfields Ltd. v. Janapada Sabha AIR 1961 SC 964 and Amalgamated Coalfields Ltd. v. Janapada Sabha AIR 1964 SC 1013 for the purpose of showing that the honourable Supreme Court did not follow its own decisions in the interest of justice. Out of the aforesaid cases, the cases reported in AIR 1951 SC 41 (Charanjit Lal Chowdhury v. Union of India) and AIR 1954 SC 119 (Dwarkadas Shrinivas v. Sholapur Spinning Weaving Co. Ltd.) relate to Sholapur Spinning Weaving Company. The Sholapur Spinning Weaving Company Limited was incorporated under the Indian Companies Act. It did good business and declared high dividend for some time. In 1949 there was accumulation of stocks and financial difficulties. In order to overcome the situation the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry v. Union of India) and held that even if it was taken that in view of the binding character of the earlier decision of the Supreme Court, the point was concluded that the State had not taken possession of the shareholders' property, the plaintiff and other preference shareholders in the suit were entitled to attack the validity of the Ordinance on the basis of infringement of the fundamental right of the company. The decision of the Supreme Court in the appeal [AIR 1954 SC 119 (Dwarkadas Shrinivas v. Sholapur Spinning Weaving Co. Ltd.)] was that the impugned Ordinance authorised in effect a deprivation of the property of the company within the meaning of article 31 of the Constitution, without payment of any compensation and violated the fundamental right of the company under article 31(2) of the Constitution. It can, thus, be seen that it is only the Supreme Court which distinguished its earlier decision and not any other court. 10.. The cases reported in AIR 1961 SC 964 (Amalgamated Coalfields Ltd. v. Janapada Sabha) and AIR 1964 SC 1013 (Amalgamated Coalfields Ltd. v. Janapada Sabha) related to imposition of coal tax by Janapada Sabha. The rate of coal tax was at first 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. It was observed in paragraph 24 of the report in AIR 1964 SC 1013 (Amalgamated Coalfields Ltd. v. Janapada Sabha) that the subsequent proceedings were entirely on different grounds and hence the decision of the High Court of Madhya Pradesh could be upheld only if the principle of constructive res judicata could be said to apply to writ petitions filed under article 32 or article 226 of the Constitution. On holding that the principle of constructive res judicata did not apply to tax liability for different years, the Supreme Court held that when the question was as to whether any law had been declared by the Supreme Court by implication, such implied declaration, though binding, must be held to be subject to revision by the Supreme Court on a proper occasion where the point in question is directly and expressly raised by any party before the Supreme Court. In the case reported in AIR 1964 SC 1013 (Amalgamated Coalfields Ltd. v. Janapada Sabha), the Supreme Court was of the view that the appellants could not be precluded from raising the new contentions on which their challenge against the validity of the notices in the subsequent proceedings was based. It can thus be seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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