TMI Blog2005 (9) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... t was wrongly collected. No such party has made such a claim for refund. Therefore, directing this amount to be deposited in the Treasury was correct. We however clarify that we are not in agreement with the submission that amended section 29- A would require re-enactment. - Civil Appeal No. 3742 of 2000 - - - Dated:- 28-9-2005 - VARIAVA S.N. AND TARUN CHATTERJEE JJ. Manoj Goel, Shuvodeep Roy and Ms. Abha R. Sharma, Advocates, for the respondent. Ms. Shobha Dikshit, Senior Advocate (Rajeev Kumar Dubey and Kamlendra Mishra, Advocates, with her) for the appellant. -------------------------------------------------- The judgment of the Court was delivered by S.N. VARIAVA, J. This appeal is against the judgment da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment. At the time the impugned judgment was passed an appeal, against the High Court's judgment in Kheria Brothers case See [2000] 117 STC 420 at page 421 (All.)., was pending in this Court. 4.. At this stage section 29-A must be set out. Section 29-A reads as follows: "Where any amount is realised from any person by any dealer purporting to do so by way of realisation of tax on the sale of any goods to such person, 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. " Section 29-A was amended on August 22, 1971 to read as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Supreme Court under article 32, article 132, article 133, article 136 or article 137, or by the High Court under article 226 or article 227 of the Constitution." 5.. The constitutional validity of the amended provision was challenged. The Allahabad High Court held the amended section 29- A to be ultra vires the power of the State Legislature to enact and declared the provision to be unconstitutional. This Court in Annapurna Biscuits Manufacturing Co.'s case See [1973] 32 STC 1. (1974) 3 SCC 121 upheld the decision of the Allahabad High Court and held the amended section 29-A to be unconstitutional. The court relied upon the decision of this Court in the case of R. Abdul Quader Co. v. Sales Tax Officer, Hyderabad reported in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cidental to legislation for sales tax. But we are unable to hold that a provision under which a dealer is called upon to pay to the State an amount which has been collected by him on a representation express or implied that an equal amount is payable by him under the Bihar Sales Tax Act, is a provision incidental to the power to levy 'tax on sale or purchase of goods' within the meaning of entry 54, List II of the Seventh Schedule. Entry 54, List II of the Seventh Schedule comprehends the power to impose tax, to prescribe machinery for collecting the tax, to designate officers by whom the liability may be imposed and to prescribe the authority, obligation and indemnity of the officers. The State Legislature may under entry 54, List II, be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islation. It was held that this was within the implied powers of the State Legislature. 7.. Following R.S. Joshi's case See [1977] 40 STC 497., a Constitution Bench of this Court upheld the constitutional validity of section 29-A (as it stood prior to its amendment) in the case of Kasturi Lal Harlal v. State of U.P. reported in See [1987] 64 STC 1. (1986) 4 SCC 704. The Constitution Bench noted that this question stood concluded by R.S. Joshi's caseSee [1977] 40 STC 497.. It also took note of Ashoka Marketing's case See [1970] 26 STC 254 (SC); (1970) 1 SCC 354. and observed that the decision in Ashoka Marketing's case See [1970] 26 STC 254 (SC); (1970) 1 SCC 354. did not follow an earlier decision in Orient Paper Mills Ltd. v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the position will be that amended section 29-A having declared to be void and beyond the legislative competence, cannot revive by itself. It was submitted that the section can only revive if it is re-enacted. In support of this submission, reliance was placed upon certain observations made in the cases of Behram Kurshed Pesikaka v. State of Bombay reported in [1955] 1 SCR 613, Saghir Ahmad v. State of U.P. reported in [1955] 1 SCR 707, Deep Chand v. State of U.P. reported in AIR 1959 SC 648, Mahendra Lal Jaini v. State of Uttar Pradesh reported in [1963] Supp 1 SCR 912; and B. Shama Rao v. Union Territory of Pondicherry reported in See [1967] 20 STC 215. [1967] 2 SCR 650. 10.. We do not agree with this submission. However, in our view, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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