*THE HON’BLE SMT.JUSTICE T.MEENA KUMARI AND *THE HON’BLE MR JUSTICE RAMESH RANGANATHAN W.P.No.15548 of 2008. % 30.07.2008 Between: M/s.Vijaya Vasava Motors, Eluru, rep. By its Proprietix B.Padmavathi, W/o.Kishore. ..... PETITIONER AND The Assistant Commissioner (LTU), Eluru Division, Eluru. .....RESPONDENT ! Counsel for the Petitioner: MR.M.V.J.K. KUMAR. ^ COUNSEL FOR THE RESPONDENT: MR.K.RAJI REDDY. < Gist: > Head Note: ? CITATIONS: 1. (Vol.39) APSTJ 150 2. AIR 1967 SC 1753 3. (1989) 4 SCC 318 4. (2003) 3 SCC 321 5. AIR 1962 SC 386 6. AIR 1967 SC 1910 7. AIR 1964 SC 1573 8. (1970) 2 SCC 259 9. (1974) 1 SCC 197) 10. 1997(3) ALD 540 11. 2007 (4) ALD 105 12. 2007(4) ALD 105 13. AIR 1967 SC 1643 14. (1999) 9 SCC 559 15. (2003) 4 SCC 147 16. (2003) 4 SCC 399) 17. (1970) 2 SCC 280) 18. (1987) 1 SCC 362 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 15548 of 2008 Between: M/s. Vijaya Vasava Motors, Eluru, rep. by its Proprietrix, B. Padmavathi, W/o. Kishore, West Godavari District. ..... PETITIONER AND The Assistant Commissioner (LTU), Eluru Division, Eluru. ....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of Mandamus declaring the endorsement dt. 28.05.2008 issued by the respondent directing the petitioner to pay the tax of Rs.72,394/- pursuant to the orders passed by the Revisional Authority dt. 23.11.2006 as illegal, arbitrary, unjust, improper and contrary to the G.O. issued by the Government of Andhra Pradesh in G.O.Ms.No.144, Rev. (CT)-II Department, dt. 11.02.2008 and also to direct the respondent to implement the directions in the G.O. as mentioned above and to take all consequential actions pursuant to the application dated 03.06.2008 (Annexure-5) filed by the petitioner to the Respondents with regard to the Assessment year 2002-03 and 2003-04. Counsel for the Petitioner:MR.M.V.J.K.KUMAR Counsel for the Respondent: Mr.K.RAJI REDDY. The Court made the following : THE HON’BLE SMT. JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.15548 OF 2008. ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) The endorsement of the respondent dated 28.05.2008, directing the petitioner to pay tax of Rs.72,394/- pursuant to the order of the revisional authority dated 24.11.2006, is questioned in this writ petition as arbitrary, unjust and contrary to G.O.Ms.No.144 dated 11.02.2008. 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 31.12.2003, was revised by the Deputy Commissioner (CT), Eluru on 23.11.2006, 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 10.05.2005 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. Ekram Khan and Sons v. Commissioner of Trade Tax, Uttar Pradesh[1] and, by order dated 04.07.2006, dismissed the appeal to the extent tax was levied on replacement of spare parts during the warranty period. Both the orders i.e., the order of the revisional authority for the assessment year 2002-03, and the order of the appellate authority for the assessment year 2003-04, have attained finality. Petitioner would contend that, in view of the law laid down by the Supreme Court in Mohd. Ekram Khan and Sons1, they were of the view that no useful purpose would be served in preferring appeals to higher forums. While matters stood thus, the Andhra Pradesh Motor Vehicle Dealers Association submitted a representation to the Government that replacement of spare parts, during the warranty period of the vehicles which were sold, was earlier exempted from levy of tax by the assessing authorities, that the Department had later changed their view in the light of the judgment of the Supreme Court in Mohd. Ekram Khan and Sons1 and had revised assessments for four years applying the said judgment retrospectively in respect of all dealers even though no tax was collected by such dealers. The Association requested the Government to levy tax prospectively. The Government, vide G.O.Ms.No.144 dated 11.2.2008, directed the Commissioner of Commercial Taxes to levy tax prospectively, on the supply of spare parts during the warranty period, from 21.07.2004 (i.e., the date of the judgment of the Supreme Court in Mohd. Ekram Khan and Sons1). Sri M.V.K. Murthy, Learned Counsel for the petitioner, would contend before us that all officials in the Department of Commercial Taxes, including the respondent herein, were duty bound to implement G.O.Ms.No.144 dated 11.02.2008. On being asked as to which statutory provision or rule the said G.O. is referable to, Learned Counsel would fairly state that, while there was no specific provision in the APGST Act, or the Rules made thereunder, the order was issued under the executive power of the government under Article 162 of the Constitution of India. Learned Counsel would contend that, since the Supreme Court had delivered its judgment in Mohd. Ekram Khan and Sons1 on 21.07.2004, the law laid down therein cannot be held to have retrospective application and, as the Government had issued G.O.Ms.No.144 dated 11.02.2008 holding that the said judgment should be applied from 21.07.2004, 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 interests of the revenue, may make such inquiry or cause such inquiry to be made and, subject to the provisions of the Act, may initiate proceedings, revise, modify or set aside such order or proceeding or pass any such order with reference thereto. Against an order passed by the Appellate Authority under Section 19, or an Order of Revision under Section 20, a further appeal lies to the Sales Tax Appellate Tribunal (S.T.A.T) under Section 21 of the Act. Against the order of the S.T.A.T. a revision is provided, under Section 22 of the Act, on any question of law to the High Court. Section 23 relates to appeals to the High Court and, under sub-section (1) thereof, any dealer objecting to an order of assessment, passed by the Commissioner of Commercial Taxes suo-motu under sub-section (1) of Section 20, may appeal to the High Court. It is necessary to note that, while the petitioner had the remedy of preferring an appeal to the S.T.A.T. under Section 21, or to the High Court under Section 23 of the Act against the Orders of the Revisional Authority for the assessment year 2002-03 and an appeal to the S.T.A.T against the Order of the Appellate Deputy Commissioner for the assessment year 2003-04, they have chosen not to do so and have permitted the said orders to attain finality. Under Section 39 (1), the State Government may, by notification, make rules to carry out the purposes of the Act. Sub- section (2) details matters for which the Rules may provide for. Under Section 40 (1), the Government may, by notification, alter, add to or cancel any of the Schedules. Section 42, which confers power on the Government to make provisions to remove difficulties, is applicable only in relation to any difficulty which may arise in giving effect to the provisions of the APGST Act in consequence of the transition to the said provisions from the corresponding provisions of the Acts in force immediately before the commencement of the APGST Act. G.O.Ms.No.144 dated 10.02.2008 is, therefore, not referable to Section 42. Section 42A confers powers on the Commissioner, (and not on the Government), to issue orders, instructions and directions, not inconsistent with the provisions of the APGST Act, or the rules made thereunder, to his subordinate officers, as he may deem fit for the proper administration of the Act and the officers are required to comply with such orders, instructions and directions. The power, to issue instructions under Section 42-A, 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 10.02.2008, issued by the Government of Andhra Pradesh, is not referable to any of the provisions of the APGST Act or, for that matter, the A.P. General Sales Tax Rules, 1957. The Order, in G.O.Ms.No.144 dated 10.02.2008, 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[2]). Executive instructions can only supplement and not supplant the law, (Senior Supdt. of Post Offices v. Izhar Hussain[3]; St. Johns Teachers Training Institute v. Regional Director, NCTE[4]), and cannot be so framed or utilised as to override the provisions of law as it would, then, destroy the very basis of the rule of law and strike at the very root of orderly administration of law. (Mannalal Jain v. State of Assam[5]). If, however, the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. (Sant Ram v. State of Rajasthan[6]). The orders passed by the appellate authority under Section 19(1), and the revisional authority under Section 20(1) of the APGST Act, are quasi judicial in nature and such orders cannot be set at naught by the Government in exercise of its executive power. (B. Rajagopala Naidu v. State Transport Appellate Tribunal[7], Ravi Roadways v. Asia Bi[8] and P. Palaniswami v. Shri Ram Popular Service (P) Ltd[9]). While the ambit and extent of the power of Supreme Court and High Courts are wide, judgments rendered by other courts and tribunals, even those created under Statutes, cannot be made nugatory and redundant by executive action and are enforceable with the same vigour and rigour as that of the decisions rendered by the Supreme Court and the High Courts. (Telugunadu Workcharged Employees State Federation, Nalgonda v. Govt. Of India, Ministry of Labour & Employment, New Delhi[10]) Even on merits, the impugned order in G.O.Ms.No.144, to the extent that the judgment of the Supreme Court in Mohd.Ekram Khan and Sons1 has been made applicable only from the date of the judgment i.e., 21.7.2004, is also liable to be set aside. In Mohd. Ekram Khan and Sons1, the question which fell for consideration was whether the amount received by the assessee for supply of spare parts to customers, as a part of the warranty agreement, was liable to tax. The Supreme Court held that, under the warranty, all defects on account of faulty manufacture had 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 prospectively. It is not open for Courts/Tribunals to apply the law laid down by the Supreme Court only from the date on which the judgment came to be passed. (M.A. Murthy vs. State of Karnataka[11]; G.Raja Babu v. The Govt. Of A.P.[12]) The Supreme Court has not held that its judgment, in Md.Ekram Khan and Sons1, is prospective in its application. Prospective overruling is resorted to by the Supreme Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. It is for the Supreme Court to indicate whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision.(M.A. Murthy11). The doctrine of prospective overruling can be invoked only in matters arising under the Constitution and can be applied only by the Supreme Court as it has the Constitutional jurisdiction to declare law binding on all the Courts in India. (Golak Nath Vs. State of Punjab[13]; State of H.P. Vs. Nurpur (P) Bus operators’ Union[14], G.Raja Babu12). In the absence of any direction by the Supreme Court that the rule laid down by it would be prospective in operation, any finding recorded that the rule laid down by the Supreme Court would be applicable only to cases arising from the date of the judgment of the Court cannot be accepted. (Sarwan Kumar v. Madan Lal Aggarwal[15], G.Raja Babu12). Since the power to hold that a judgment of the Supreme Court will apply prospectively does not enure even in the High Courts, the Government could not have held that the said judgment would only have prospective operation. The action of the Government, in doing so, in its order in G.O.Ms.No.144 dated 11.2.2008, in effect, amounts to declaring that the judgment of the Supreme Court in Md.Ekram Khan and Sons1 would not apply to matters which are either pending before statutory authorities or the STAT or even the High Court merely because they relate to assessment years prior to the date of the judgment of the Supreme Court i.e., prior to 21.7.2004. A declaration that an order 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[16]), nor has it the power to ask that decisions given by courts be disobeyed or disregarded. (Municipal Corpn. of the City of Ahmedabad v. New Shrock Spg. and Wvg. Co. Ltd.[17]). 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 A.P.[18]). Since the Government has no power to declare that the judgment of the Supreme Court, in Md.Ekram Khan and sons1, would only operate from the date of its judgment i.e. 21.07.2004, that portion of G.O.Ms.No.144 dated 10.2.2008 wherein it was so declared must be held to be void and unenforceable. The action of the respondents in issuing the endorsement dated 21.5.2008, directing the petitioner to pay tax of Rs.72,394/-, is in accordance with law and must, therefore, be upheld. The writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. ____________________ T.MEENA KUMARI,J Date:30-07-2008 ___________________________ RAMESH RANGANATHAN,J Note: L.R. copy to be marked B/o ASP/GS [1] (Vol.39) APSTJ 150 [2] AIR 1967 SC 1753 [3] (1989) 4 SCC 318 [4] (2003) 3 SCC 321 [5] AIR 1962 SC 386 [6] AIR 1967 SC 1910 [7] AIR 1964 SC 1573 [8] (1970) 2 SCC 259 [9] (1974) 1 SCC 197) [10] 1997(3) ALD 540 [11] 2007 (4) ALD 105 [12] 2007(4) ALD 105 [13] AIR 1967 SC 1643 [14] (1999) 9 SCC 559 [15] (2003) 4 SCC 147 [16] (2003) 4 SCC 399) [17] (1970) 2 SCC 280) [18] (1987) 1 SCC 362