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M/s Maa Sharda Trading Co & Another v. State Of U.P. & Others - WRIT TAX No. 1028 of 2005  RD-AH 1694 (19 July 2005)
CIVIL MISC. WRIT PETITION (TAX) NO.1028 OF 2005
M/s Maa Sharda Trading Co., Allahabad. ....Petitioner
The State of U.P. and others. ....Respondents
Hon'ble R.K. Agrawal, J.
Hon'ble Rajes Kumar, J.
Petitioner has already challenged the validity of the provisions of the Entry tax by means of Writ Petition No.868 of 2004 in which this Court vide order dated 07.07.2004 had passed an interim order on the same terms as interim order of the Hon'ble Supreme Court in Civil Appeal No.997-998 of 2004, State of U.P, Vs. M/s Indian Oil Corporation dated 19.03.2004. The writ petition filed by the petitioner is still pending before this Court.
Submission of learned counsel for the petitioner is that the petitioner is liable to pay the entry tax as and when it becomes due subject to the condition that the respondents shall maintain a separate account. If the petitioner has failed to deposit the amount of entry tax, it is always open to the authority to proceed in accordance with law. Further submission that there is no provision for the authority to pass any provisional assessment or to make the recovery is misconceived, inasmuch as the operation of the judgement declaring the provision of Entry tax as ultra vires has been stayed by the Apex Court Thus all consequences follows as a result of non-deposit of entry tax. In the present case, for non-deposit of entry tax provisional assessment have been made which can not be said to be illegal and without jurisdiction. Learned counsel for the petitioner has relied upon the decision of the Apex Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, reported in 1992 (3) SCC, 1 in which the Apex Court has held that the stay of operation of the order means that the order, which has been stayed would be in operative from the date of the passing the stay order and it does not mean that the order has been wiped out from the existence. The Apex Court was considering the question whether the appellate authority has quashed the order and has remanded the matter, which order has been stayed by the higher authorities. In this background, the Apex Court has held that staying of the order of the appellate authority would not revive the proceedings before the appellate authority. The aforesaid decision is of no help to the petitioner, inasmuch as this Court has declared the provisions of the Act to be ultra vires, which order has been stayed with certain directions. The result would be that till such time Hon'ble Supreme Court finally adjudicated upon the matter, the Act has to be operative.
In view of the foregoing discussions, we are of the considered opinion that the writ petition lacks merit and is accordingly, dismissed.
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