TMI Blog1973 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered to be a law relating to trusts. The mere use of the word "trust" in sub-section (2) of section 29-A would not make the impugned law to be one relating to trusts. - C.A. No. 1716 of 1972 - - - Dated:- 16-4-1973 - HEGDE K.S. AND KHANNA H.R. JJ. Yogeshwar Prasad, S.K. Bagga and Mrs. S. Bagga, Advocates, for the respondent. S.N. Kachar, Advocate-General for the State of U.P. and N.D. Karkhanis, Senior Advocate (K.C. Agarwala and O.P. Rana, Advocates, with them), for the appellants. -------------------------------------------------- The judgment of the court was delivered by KHANNA, J- This appeal by certificate is directed against the judgment of the Allahabad High Court whereby that court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution because the amount though collected by way of tax was not exigible as tax under the law. It was observed: "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 were a tax." In 1969, the Uttar Pradesh Taxation Laws Amendment Act, 1969 (U.P. Act 11 of 1969), was passed. Section 17 of that Act inserted section 29-A, which read as under: "29-A. Refund in special cases.- Notwithstanding anything contained in this Act or in any other law for the time being in force or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler of the liability in respect thereof to the extent of the deposit. (3) Where any amount is deposited by any dealer under sub- section (1), such amount or any part thereof shall, on a claim being made in that behalf in such form as may be prescribed, be refunded, in the manner prescribed, to the person from whom such dealer had actually realised such amount or part, or to his legal representatives, and to no other person: Provided that no such claim shall be entertained after the expiry of three years from the date of the order of assessment or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later. Explanation -The expression 'final order on appeal, revision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section. Learned Advocate-General appearing for the appellant-State has not, and in our opinion, rightly challenged the correctness of the view taken by the High Court in this respect. We may now deal with the provisions of section 15 of the amending Act as a result of which section 29-A was substituted in lieu of the old section 29-A in the principal Act. Section 29-A deals with the amount wrongly realised by a dealer on sale of goods to any person. Sub- section (1) of section 29-A of the principal Act makes it obligatory on the part of the dealer to deposit such amount into the Government treasury "notwithstanding that the dealer is not liable to pay such amount as tax or that only a part of it is due from him as tax under this Act". S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the ground that though it may not be open to a State Legislature to make provision for the recovery of an amount which is not a tax under entry 54 of List II in a law made for that purpose, it would still be open to the Legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax, as part of the incidental and ancillary power to make provision for the levy and collection of such tax ...... But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw in respect of matters necessarily incidental to 'tax on the sale and purchase of goods'. But a provision compelling a dealer who has deliberately or erroneously recovered an amount from the purchaser on a representation that he is entitled to recover it to recoup himself for payment of tax, to pay over that amount to the State cannot, in our judgment, be regarded as necessarily incidental to entry 54, List II. In effect the provision is one for levying an amount as tax which the State is incompetent to levy. A mere device cannot be permitted to defeat the provisions of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled to col ..... X X X X Extracts X X X X X X X X Extracts X X X X
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