Case: State of Uttar Pradesh and Others Vs. Modi Industries Limited

Respondent Modi Industries Limited. hereinafter referred to as the dealer, w as known earlier as the Modi Sugar Mills Ltd. It manufactured various articles like sugar, oil, vanaspati and soap. It exercised the option under section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) of the U.P. Sales Tax Act, 1948, hereinafter referred to as the Act, to submit its returns of sales- tax on the basis of its turnover of the previous yearns and filed the returns accordingly. The assessment years for which the returns were filed were 1948-49 and 1949-50, and the corresponding previous years were November 1, 1946 to October 31, 1947, and November 1, 1947 to October 31, 1948 respectively. The rate of sales tax for certain commodities was enhanced during the assessment year 1948-49, with effect from June 9, 1948, and for some other commodities with effect from July 1, 1948. The dealer contended that sales tax on its entire turnover of the two previous years should be assessed at the old rate of 3 pies per rupee and not at the enhanced rate of 6 pies per rupee because the enhancement was made after both the previous years had expired. The Sales Tax Officers rejected that contention and assessed the sales tax at the enhanced rates. The appellate authority however upheld the dealers contention and the matter went up in revision to the Judge (Revisions). He upheld the order of the Sales Tax Officer. The dealer applied for a reference under section 11 (1) and the following two questions of law were referred to the High Court,) Whether the enhanced rate under notifica- tions dated 8th Jane, 1948 and 30th June, 1948 issued under section 3-A of the U.P. Sales Tax Act. 1948 are applicable to the-sales of goods mentioned in paragraph 2 above which took place before 8th June 1948 and 30th June, 1948(2) Whether sub-section (ii) of section 3-A of the U.P. Sales Tax Act, 1948, empowers Provincial Government to fix the rate of sales tax in respect of an assessment year or in respect of certain specified sales only ?"By its judgment dated July 24, 1961, the High Court answered question No. 1 in favour of the dealer, but declined to answer the other question. The High Court took the view that the dealer who had chosen to be assessed on the basis of its turnover of the previous year was liable to assessment, on the entire turnover of the previous year, at the rate prevailing on the first day of the relevant assessment year and that any change in the rate of the sales tax during the course of the assessment year could not be applied to tha t assessment. The dealer filed an application under section 11(8) of the Act for a direction for the payment of interest on the amount which had become refundable as a result of the judgment of the High Court. The High Court held in its order dated February 22, 1966 that the dealer was entitled to interest at the rate of two per cent on the refundable amount. The dealer accordingly made an application to the Revising Authority on October 11, 1968 to pass an order under sub-section (6) of section 11 for a refund of Rs. 3, 48, 420/13 with interest at two percent per annum. The Additional Judge (Revisions) Sales Tax however dismissed the application by his order dated December 28, 1968, as he took the view that that was not permissible because of the insertion of section 31 in the Act by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 (U.P. Act III of 1963) hereinafter referred to as the Amending Act. The dealer felt aggrieved and filed a writ petition under article 226 of the Constitution. It is that petition which has been allowed by the impugned judgment of the High Court dated February 11, 1970 by which the order of the Additional Judge (Revisions) Sales Tax Meerut, dated Decem- ber 28, 1968, has been quashed and a direction has been given to him to pass an appropriate order under section 11 (6) of the Act in accordance with the law and in the light of the observations made by the High Court. This is why the State of Uttar Pradesh and others have come up to this Court in appeal.

Reasoning: It was observed that in taking that view this Court was seeking to apply a legislative provision which was, by express enactment, in force at the time when the liability arose, for section 31 incorporated by the Amending Act was to be deemed to have been in operation at all material times in supersession of the previous rule declared by this Court. It was held further that this would be the position even if the laws were amended with retroactive operation during the pendency of a reference to the High Court. It was accordingly held that "if the law which the Tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound t o decide the question in the light of the law so amended." The validity and the retroactive operation of section 31 have therefore been placed beyond challenge by the aforesaid decision in Bijli Cotton Mills case and have in fact not been challenged by counsel for the dealer. It may be mentioned that in its judgment in Bijli Cotton Mills case this Court took notice of its earlier decision in the Modi Sugar Mills case (supra) so that it is well settled that the amendment made by section 31 is retroactive and applies to assessments pending or closed as if the Amending Act had been in force at material timesSub-section (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment." So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects. It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy. According to sub-section (2) of that section, the assessments mad e at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by the sub-section that that was to be so notwithstanding any judgment, decree or order of any court. The order of the Additional Judge (Revisions) dated Dec ember 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates, and sub-section (2) of section 31 had the effect of making them "good and valid in law". It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31. It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under sub- section C(6) of section 11 of the Act as directed b y the High Court, that would have been of no consequence and would have been inoperative because of the specific provisions of subsection (2) of section 31, so that the position would have been the same as if no such order had been passed at all.The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the department to be erroneous, it could have filed an appeal against it to this Court. under article 136 of the Constitution to have it set aside or modified. It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter. The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department. In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated February 11, 1970 and has come up in appeal against it. And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an orderSo when section 31 of the Act is dearly valid and is retoractive, and the Legislature has shown the intention of restoring the assessments and orders made under the provisions of sub-section (1) of section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) as good and valid assessments in law, as if they had been duly made, that was enough to set the controversy at rest and there is nothing wrong with the view which has been taken by the Additional Judge (Revisions) in his order dated December 28, 1968The answer to the question depends on the answer to the further questionwhether the proceedings for the assessment of the sales tax had become final after the High Courts judgment dated July 24, 1961 or whether, after that judgment, something remained to be done by the Additional Judge (Revisions)n (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment." So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects. It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy. According tosubsection (2) ofthat section, the assessments mad e at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by thesubsectionthat that was to be so notwithstanding any judgment, decree or order of any court. The order of the Additional Judge (Revisions) dated Dec ember 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates, andsubsection(2) of section 31 had the effect of making them "good and valid in law". It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31. It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under subsection C(6) of section 11 of the Act as directed b y the High Court, that would have been of no consequence and would have been inoperative because of the specific provisions ofsubsection(2) of section31, so that the position would have been the same as if no such order had been passed at all.The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the department to be erroneous, it could have filed an appeal against it to this Court. under article 136 of the Constitution to have it set aside or modified. It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter. The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department. In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated February 11, 1970 and has come up in appeal against it. And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an orderThis argument has been made with reference to this Courts decision in Modi Sugar Mills case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpose of giving effect to section 31 of the Act in the facts and circumstances of this case.