ASSISTANT COMMISSIONER JUDL Vs. KHERIA BROS

JUDGEMENT

(1.) The question arising herein arises in rather peculiar circumstances,

(2.) The U. P. Legislature inserted Section 29-A by way of an amendment in 1969 in the U. P. Sales Tax Act. Section 29-A in substance, provided that no refund shall be given to a dealer under the U. P. Sales Tax Act in case he has passed on the burden to the purchaser. The validity of this provision was questioned before the Allahabad High court but was upheld in Kasturi Lalharlal. The matter was brought in appeal to this court, by the dealer and was pending.

(3.) During the pendency of the above proceedings, Section 29-A was amended by the U. P. Legislature in the year 1971. The amended Section 29-A was also challenged by a dealer in Annapuma Biscuits Mfg. Co. The full bench of the Allahabad High court struck down the provision. The State preferred an appeal against the said decision which was dismissed by this court in State of U. P. v. Annapuma Biscuit Manufacturing Co following the earlier decisions of this court in R. Abdul Quader and Co. v. SALES TAX OFFICER and Ashoka Marketing Ltd. v. State of Bihar. It is thereafter that the appeal preferred by the dealer Kasturi Lal Harlal with respect to the validity of original Section 29-A came up for hearing and the Constitution bench upheld the constitutionality of Section 29-A (as originally introduced in 1969. The judgment of this court in Kasturi Lal Harlal does not refer to the decision in Annapuma Biscuit Mfg. Co The decision in Ashoka Marketing has later been disapproved in R. S. Joshi by a seven-Judge bench.