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TMI Blog1998 (8) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax, Jhansi and another (Civil Misc. Writ Petition Nos. 1530 and 1531 of 1989 decided on March 31, 1995), to the extent relvant, is as follows: ] The next point raised on behalf of the petitioners is that section 29-A of the Act, which debarred refund to a dealer if the amount in question had been realised as tax from a customer, is no longer on the statute book, the same having been declared invalid by this Court and affirmed by the honourable Supreme Court. A new section 29-A of the Act was, for the first time, enacted by the Taxation Laws Amendment Act (U.P. Act No. 11 of 1969) with effect from 1st October, 1969. It read as under: "29-A. Notwithstanding anything contained in this Act or in any other law for the time being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, such dealer shall deposit the entire amount so realised into the Government Treasury, within such period as may be prescribed, 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. (2) Any amount deposited by any dealer under sub-section (1) shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives, and the deposit shall discharge such dealer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court and came to be decided on October 29, 1986.See [1987] 64 STC 1. A similar provision in the Bombay Sales Tax Act came for consideration before the honourable Supreme Court in R.S. Joshi, Sales Tax Officer v. Ajit Mills Limited [1977] 40 STC 497; AIR 1977 SC 2279 in which a Constitution Bench of the Supreme Court upheld the validity of a provision denying refund to a dealer of the amount realised from customers as sales tax. The honourable Supreme Court held that such power was ancillary to entry 54 of List II of the Seventh Schedule to the Constitution of India. Following its judgment in R.S. Joshi's case [1977] 40 STC 497; AIR 1977 SC 2279, the honourable Supreme Court dismissed the appeal of Kasturi Lal Harlal [1987] 64 STC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake, the provisions of section 29-A of the Act were wrongly incorporated in the judgment of the honourable Supreme Court and the provisions of section 29-A of the Act introduced by U.P. Act No. 20 of 1971 not being under challenge before the honourable Supreme Court, the reproduction of these provisions in the judgment of the honourable Supreme Court will not validate them when these provisions had already been declared unconstitutional by the honourable Supreme Court of India. On the other hand, the learned Advocate-General contended that the judgment in the case of Annapurna Biscuit Manufacturing Company [1973] 32 STC 1 is no longer a good law because of the judgment of the honourable Supreme Court in the case of R.S. Joshi [1977] 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same provision. The judgment of the honourable Supreme Court in A.S. Gauraya v. S.N. Thakur AIR 1986 SC 1440 relied upon by the learned Advocate-General renders no help on this point. What was stated therein is that there is nothing like any prospective operation alone of the law laid down by the Supreme Court. The law laid down by the Supreme Court applies to all pending proceedings. The judgment in the case of Annapurna Biscuit Manufacturing Company [1973] 32 STC 1 (SC) had already been pronounced by the honourable Supreme Court and if the arguments of the learned Additional Advocate-General is accepted, there will be no finality in the state of law and any subsequent judgment of the Supreme Court taking a different view would reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Assistant Commissioner (Judicial), Sales Tax, on the application under section 22 of the Act proceeds on the provisions of section 29-A of the Act and the above discussion would show that at least it is highly debatable whether the provisions of section 29-A of the Act, as introduced by U.P. Act No. 20 of 1971, continued to be valid on the statute book. Therefore, in the circumstances of the case, it cannot be said that there was any apparent mistake in the order passed earlier by the Assistant Commissioner (Judicial), Sales Tax, and the impugned orders passed by the Assistant Commissioner (Judicial), Sales Tax, therefore, cannot be sustained. [The department appealed to the Supreme Court by special leave.] A.K. Goel, Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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