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TMI Blog1968 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... him), for the appellant in C.As. Nos. 711 and 1284 of 1966 and for the respondent in W.P. No. 225 of 1968. -------------------------------------------------- The judgment of the court was delivered by GROVER, J.-The two appeals, Civil Appeals Nos. 711 and 1284 of 1966, are by special leave from the judgments of the Allahabad High Court. These appeals as also the writ petition shall stand disposed of by this judgment. In Civil Appeal No. 711 of 1966 the assessee-company manufactures and deals in sugar and its allied products. In the relevant assessment year 1950-51 the assessee had opted to submit its return on the basis of the turnover of the previous year 1949-50 for the period April 1, 1949, to March 31, 1950. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess amount deposited by the assessee. He further ordered that a sum of Rs. 11,952-2-6 out of Rs. 23,025-10-4 after deducting the amount the assessee deposited under section 8-A(4) which came to Rs. 11,073-2-6 be also refunded. Thereupon the Commissioner of Sales Tax moved an application under section 11 of the Act for referring the following questions of law to the High Court: "1. Whether in the circumstances of the case the amount paid by the assessees and recovered by assessees from April 1, 1949, to January 25, 1950, is liable to be deposited in the Government treasury under section 8-A(4) of the U.P. Sales Tax Act. 2. What tax was chargeable from the assessees in respect of the assessment year 1950-51 on the basis of the turnover of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry as to the vires of section 8-A(4). The Division Bench then recorded an order observing that the learned judge to whom the case had been referred owing to difference of opinion had to express his opinion on both the questions which were required to be answered and that it was open to him when answering question No. 2 to consider the vires of the impugned section. Manchanda, J., gave his judgment on September 23, 1964, answering point No. I in the affirmative and against the assessee. On the second point he was of the view that section 8-A(4) of the Act was ultra vires in view of the decision of this court in Abdul Quader's case. On the second point therefore the answer was in the affirmative and in favour of the assessee. The Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from him as if it were arrears of land revenue." It was decided that the State Legislature could not be regarded as having directly legislated for the imposition of sales and purchase tax under entry 54, List II, in the Constitution when it made the provisions of section 11(2) because on the face of the provisions the amount though collected by way of tax was not exigible as tax under the law. This is what was observed at page 873: "We do not think that the ambit of ancillary or incidental power goes to the extent of permitting the Legislature to provide that though the amount collected-may be wrongly-by way of tax is not exigible under the law as made under the relevant taxing entry, it shall still be paid over to Government, as if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof." Mr. C.B. Agarwala has not been able to point to much difference between section 8-B(2) of the Madras Act and section 8-A(4) of the Act. He has, however, contended that in R. Abdul Quader's case [1964] 6 S.C.R. 867; 15 S.T.C. 403., section 11(2) related to tax which had been collected otherwise than in accordance with the provisions of that Act. It was for that reason that it was held that the relevant entry under which the legislation had been enacted could not have covered such a provision even by invoking the theory of ancillary or incidental powers. In the present case, according t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in M/s. Tikaram Sons Ltd. v. The Commissioner of Sales Tax, U.P. Civil Appeals Nos. 1682 to 1691 of 1967; since reported at [1968] 22 S.T.C. 308., decided on March 22, 1968, that when the jurisdiction of the High Court is not challenged to examine the question of law regarding constitutional validity of a taxing provision in a sales tax reference it is not open to the sales tax authorities to challenge the jurisdiction of the High Court to examine such a question of law and to pronounce upon the constitutional validity of the impugned section. In view of the above discussion the two appeals and the writ petition shall stand disposed of in the following manner: (1) In Civil Appeal No. 711 of 1966, section 8-A(4) of the Act being ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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