DURGA ENTERPRISES Vs. STATE OF U P

JUDGEMENT

(1.) Heard Shri N.C. Gupta, learned counsel for the petitioner and Shri C.B. Tripathi, learned Special Counsel for the State. By this writ petition, the petitioner has prayed for quashing the circular dated 21.6.10 (Annexure No. 3 to the writ petition) issued by Commission, Trade Tax, U.P. providing for taking of cash security while importing coal at the time of issuing 'Form-38'. Learned counsel for the petitioner submitted that under Section 19 of the U.P. Value added Tax Act, 2008 security can be taken in respect of any goods notified by the Government in that behalf under 2008 Act. He submit that no notification have been issued under Section 19 sub-section 3 notifying the coal on which security can be taken, hence the circular issued by the Commissioner is without jurisdiction.

(2.) Shri Gupta submits that any notification issued under U.P. Sales Tax Act 1948 cannot be relied on. Learned counsel for the petitioner further submits that under Section 81 of 2008 Act notifications issued under U.P. Trade Tax Act 1948 have been saved. The notifications on which reliance is being placed having not issued under U.P. Trade Tax Act 1948 the circular may be struck down.

(3.) Shri C.B. Tripathi, learned Special counsel for the State replying to the contention of the learned counsel for the petitioner states that notification issued under U.P. Sales Tax Act/U.P. Trade Tax Act are saved by Section 81 sub-section 2(a) of 2008 Act. He submits that notification was issued on 31.3.86 under the U.P. Sales Tax Act notifying coal on which security can be taken, which notification is still operative by virtue of Section 81 and hence circular of the Commissioner is fully within the jurisdiction. He further submits that U.P. Trade Tax Act 1948 is the Act which was earlier known as U.P. Sales Tax Act, 1948 and mention of U.P. Trade Tax Act in Section 81 is inconsequential.