TMI Blog1968 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... r given by the High Court to the second part of question No. 2 in the affirmative in favour of the assessee is affirmed. - Civil Appeal No. 711, & 1284 of 1966 - - - Dated:- 10-9-1968 - SHAH J.C. RAMASWAMI V. AND GROVER A.N. JJ. Ravinder Narain, Advocate of J.B. Dadachanji and Co, and P.C. Bharthari, Advocate, for the respondent in C.A. No. 1284 of 1966. S.T. Desai, Senior Advocate (P.C. Bharthari, Advocate, and Ravinder Narain, Advocate of J.B. Dadachanji and Co., with him), for the respondent in C.A. No. 711 of 1966 and for the petitioner in W.P. No. 225 of 1968. C.B. Agarwala, Senior Advocate (O.P. Rana, Advocate, with him), for the appellant in C.As. Nos. 711 and 1284 of 1966 and for the respondent in W.P. No. 225 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,621-9-4 being the amount of tax as determined by the Judge (Appeals). The Sales Tax Officer declined to give any refund on the ground that the assessee had in fact realised Rs. 1,20,000 from its buyers on account of sales tax and it was liable to deposit the entire balance after excluding Rs. 14,621-9-4 and was therefore not entitled to any refund. The assessee filed a revision petition before the Judge (Revisions). The judge (Revisions) held that only tax realised after January 25, 1950, amounting to Rs. 11,952-7-10 was liable to be deposited under section 8-A(4). Consequently he directed the refund of Rs. 48,865-9-6 being the excess amount deposited by the assessee. He further ordered that a sum of Rs. 11,952-2-6 out of Rs. 23,025- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." Before the third judge (Manchanda, J.) a question was mooted based on a decision of this court in R. Abdul Quader Co. v. Sales Tax Officer, Hyderabad [1964] 6 S.C.R. 867; 15 S.T.C. 403., that section 8-A(4) of the Act was ultra vires the Constitution and therefore the sales tax authorities were not entitled to call upon the assessee to deposit any part of the amount of Rs. 1,20,000 which had been realised by it as sales tax from its constituents. Manchanda, J., sent the case back to the Division Bench saying that he could only answer the points which had been referred to him on a difference of opinion and that he could not embark on any enquiry as to the vires of section 8-A(4). The Division Bench then recorded an order observing tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e [1964] 6 S.C.R. 867; 15 S.T.C. 403. There the validity of section 11(2) of the Hyderabad General Sales Tax Act, 1950, was canvassed. The section reads as follows: "11. (2) Notwithstanding anything to the contrary contained in any order of an officer or tribunal or the judgment, decree or order of a court, every person who has collected or collects on or after 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act, shall pay over to the Government, within such time and in such manner as may be prescribed the amount so collected by him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue." It was decided that the State Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of the transaction in which he has collected or collects such amount) shall pay over to the (State) Government within such time and in such manner as may be prescribed, all amounts so collected by him if they are in excess of the tax, if any, paid by him for the period during which the collections were made." Section 8-A(4) of the Act may be reproduced: "8-A. (4) Without prejudice to the provisions of clause (g) of sub-section (2) of section 14, the amount realised by any person as tax on sale of any goods shall, notwithstanding anything contained in any other provision of this Act, be deposited by him in a Government treasury within such period as may be prescribed, if the amount so realised exceeds the amount payable as tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 14,621-9-4 only and therefore the excess which had been realised by him (the total amount realised being Rs. 1,20,000) could not be regarded as having been realised lawfully. It seems to us that the decision in R. Abdul Quader's case [1964] 6 S.C.R. 867; 15 S.T.C. 403. squarely applies and section 8-A(4) of the Act must be held to be ultra vires the competence of the State Legislature. In Civil Appeal No. 1284 of 1966, where the facts were similar to the other appeal the point about the vires of section 8-A(4) of the Act was specifically raised and decided without any objection by the Commissioner of Sales Tax. It has now been laid down by this court in M/s. Tikaram Sons Ltd. v. The Commissioner of Sales Tax, U.P. Civil Appeals Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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