TMI Blog2008 (7) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... d February 11, 2008. The petitioner seeks a direction to the respondent to implement G.O.Ms. No. 144 and to take consequential action with regards the assessment years 2002-03 and 2003-04. Facts, in brief, are that the petitioner is a registered dealer on the rolls of the respondent. They filed returns for the assessment years 2002-03 and 2003-04 disclosing sale and purchase of two and three wheelers as also spare parts, replacement of spare parts during the warranty period and servicing charges collected towards servicing of the vehicles. The assessment order, for the assessment year 2002-03 dated December 31, 2003, was revised by the Deputy Commissioner (CT), Eluru on November 23, 2006, tax was levied on the amounts received by the petitioner towards replacement of spare parts supplied during the warranty period for two and three wheelers, and the net tax payable on revision was determined as Rs. 72,354. For the assessment year 2003-04, the respondent passed the assessment order on May 10, 2005 levying tax of Rs. 2,36,85,218. Aggrieved thereby, the petitioner preferred an appeal to the Appellate Deputy Commissioner who followed the judgment of the Supreme Court in Mohd. Ekr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered its judgment in Mohd. Ekram Khan Sons [2004] 136 STC 515 (SC); [2004] 3 RC 173; 39 APSTJ 150 on July 21, 2004, the law laid down therein cannot be held to have retrospective application and, as the Government had issued G.O. Ms. No.144 dated February 11, 2008 holding that the said judgment should be applied from July 21, 2004, the respondent was bound to give the petitioner the benefit of exemption from tax, on such transactions, for the assessment years 2002-03 and 2003-04. Before examining the contentions raised it is necessary to have a brief look at the relevant statutory provisions. Under section 19(1) of the APGST Act, any dealer objecting to any order passed, or proceeding recorded by any authority, under the provisions of the Act may, within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed. Section 20 confers powers of revision and, under sub-section (1) thereof, the Commissioner may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it and, if such order or proceeding recorded is prejudicial to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instructions and directions. The power, to issue instructions under section 42A, is specifically mandated not to be inconsistent with the provisions of the APGST Act or the Rules made thereunder. It is evident, therefore, that G.O. Ms. No. 144 dated February 11, 2008, issued by the Government of Andhra Pradesh, is not referable to any of the provisions of the APGST Act or, for that matter, the Andhra Pradesh General Sales Tax Rules, 1957. The order in G.O. Ms. No. 144 dated February 11, 2008, can only be executive instructions issued under article 162 of the Constitution of India. Article 162 provides that the executive power of a State shall extend to matters with respect to which the Legislature of the State has the power to make laws. Under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory provisions or rules which are justiciable. Even if there has been any breach of such executive instructions, that does not confer any right on a person to apply to the court for quashing orders in breach of such instructions. (G. J. Fernandez v. State of Mysore AIR 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be set right and defective parts had to be replaced free of cost by the manufacturer or his dealer within a specified period, or the given distance travelled by the car, that car manufacturers had entered into agreements with manufacturers of components providing for a warranty in so far as the components supplied were concerned, that the whole object behind the warranty was that the consumer, who had to make a heavy investment for the vehicle, should be assured of its proper and trouble-free performance for a reasonable length of time and, therefore, the entire cost of warranty was to be borne by the manufacturer. The Supreme Court further held that, since the dealers had received payment from the manufacturers towards the price of the parts supplied to customers, the said transaction had to be subjected to levy of tax. The decision of the Supreme Court, enunciating a principle of law, is applicable to all cases irrespective of the stage of its pendency. The law laid down by the Supreme Court must be held to be the law from the inception, unless the Supreme Court itself indicates that its decision will operate rospectively. It is not open for Courts/Tribunals to apply the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er made by a court of law is void is normally a part of the judicial function. Even the Legislature, let alone the executive, can neither declare that the decision rendered by the court is not binding or is of no effect, (People's Union for Civil Liberties (PUCL) v. Union of India [2003] 4 SCC 399), nor has it the power to ask that decisions given by courts be disobeyed or disregarded. (Municipal Corporation of the City of Ahmedabad v. New Shrock Spg. and Wvg. Co. Ltd. [1970] 2 SCC 280). Exercise of power by the executive must be in accordance with law. If exercise of the power of judicial review by the Supreme Court can be set at naught by the State Government, overriding the decision, it would sound the death knell of the rule of law. (P. Sambamurthy v. State of Andhra Pradesh [1987] 1 SCC 362). Since the Government has no power to declare that the judgment of the Supreme Court in Mohd. Ekram Khan Sons [2004] 136 STC 515; [2004] 3 RC 173; 39 APSTJ 150, would only operate from the date of its judgment, i.e., July 21, 2004, that portion of G. O. Ms. No. 144 dated February 11, 2008 wherein it was so declared must be held to be void and unenforceable. The action of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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