B.N Sapru, J.:— Sales Tax Revision No. 350 of 1982 has been filed by the assessee and pertains to the assessment year 1975-76.

2. The assessee is a hotelier and declared a turnover of Rs. 16,33,742.14 but claimed exemption from the tax. The assessing authority assessed the assessee on a taxable turnover of sales at Rs. 11,50, 900 and a taxable turnover of purchase at Rs. 40,164. The assessee preferred an appeal. The Assistant Commissioner (Judicial) remanded the matter to the assessing authority for determination afresh.

3. Aggrieved by the order of remand, the assessee went up in appeal. The Tribunal dismissed the appeal of the assessee and upheld the order of the Assistant Commissioner (Judicial). Aggrieved, the assessee has come up in revision.

4. Sales Tax Revision No. 398 of 1982 has been filed by the assessee and pertains to the assessment year 1976-77.

5. The assessee runs a shop of sweetmeats, namkin, kachauri, puri, etc., at Daraganj, Allahabad, as also in Magh Mela. The assessee did not maintain any accounts, and on the basis of the decision of the Supreme Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor Of Delhi., [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591 claimed exemption from payment of tax. The assessee declared a nil turnover. The assessing authority repelled the contention of the assessee and on the basis of a best of judgment assessment assessed the assessee on a turnover of Rs. 4,50,000. The assessee preferred an appeal but the Assistant Commissioner (Judicial) dismissed the appeal and upheld the turnover determined by the assessing authority.

6. The assessee preferred a second appeal and the Tribunal partly allowed the appeal and reduced the turnover to Rs. 2,65,000.

7. The Tribunal found that during the surveys conducted on 29th August, 1976, and 8th October, 1976, at the assessee's shop at Daraganj stocks of sweetmeats. namkin, coca-cola, etc., besides raw materials were found. The Tribunal found that the assessee did not maintain any account. The Tribunal found that the assessee admitted daily sales at Rs. 25 to Rs. 30. The Tribunal found that the total value of the ready stocks found at the time of both the surveys was about Rs. 650. The Tribunal accordingly determined the turnover of the shop at Daraganj at Rs. 65,000.

8. The Tribunal further found that the shop in Magh Mela was taken on auction for Rs. 40,000. Two surveys were made on 28th January, 1977, and 30th January, 1977. The Tribunal found that the assessee admitted daily sales during the month of January, 1977, at Rs. 50 to Rs. 55 and on bathing days at Rs. 1,000. The Tribunal also found that the assessee admitted daily sales during Magh Mela at Rs. 200. The Tribunal accordingly determined the turnover of the assessee's shop in Magh Mela at Rs. 2,00,000.

9. The Tribunal also found that the assessee made seating arrangements and provided the services of fan, radio, etc., to their customers. The Tribunal, however, found that the assessee had failed to show that the customers were bound to eat the food supplied to them in the assessee's shop itself and they were not free to take away the food supplied to them. The Tribunal found that the dominant object of the assessee was sales and not to offer services to their customers which was incidental to such sales.

10. Aggrieved, the assessee has filed this revision.

11. Sales Tax Revisions Nos. 423 and 424 of 1982 have been filed by the Commissioner of Sales Tax and pertain to the assessment years 1976-77 and 1977-78 respectively.

12. The assessee runs a halwai shop. The assessee did not maintain any account. The assessing authority on the basis of a best of judgment assessment fixed the turnover for the assessment year 1976-77 at Rs. 65,000 and for the assessment year 1977-78 at Rs. 70,000.

13. The assessee preferred appeals before the Assistant Commissioner (Judicial) who dismissed both the appeals and upheld the orders of the assessing authority.

14. The assessee went up in second appeal before the Tribunal. The Tribunal partly allowed the appeals and reduced the turnover determined to Rs. 19,000 for the assessment year 1976-77 and Rs. 20,000 for the assessment year 1977-78.

15. The Tribunal found that during the assessment year 1975-76 the turnover of the assessee was determined at Rs. 50,000 and accordingly the Tribunal found that the determination of the turnover for the years under assessment was reasonable.

16. The Tribunal, however, found that for the assessment years 1974-75, 1975-76 and 1978-79 the assessee was given exemption from payment of tax on the basis of the decision of the Supreme Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor Of Delhi., [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591. The Tribunal found that the assessee provided the services of bearers, radio fans, etc., and made seating arrangements during the aforesaid years and as such the assessee must have continued to provide those services to their customers during the assessment years in question as well. The Tribunal found that the department has adduced no evidence to the contrary. Accordingly, the Tribunal, as said above, partly allowed the appeals.

17. Aggrieved, the Commissioner has filed the revisions.

18. One common question, in all these revisions, is whether the assessees are liable to pay sales tax on their transactions of supply of food stuffs, etc., to their customers which are exigible to payment of sales tax on their turnover of sales.

19. The assessees contend that what the assessees, who are the restaurant owners, are doing, was not effecting sales to their customers but were rendering services to their customers and sales were only incidental to services.

20. They contend that in view of the decision of the Supreme Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor Of Delhi., [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591 which judgment was reiterated in the review petition reported in Northern India Caterers (India) Ltd. v. Lt. Governor Of Delhi., [1980] 45 STC 212 (SC) : 1980 UPTC 326 (SC) they are not liable to payment of sales tax.

21. After the decision of the Supreme Court in Northern India Caterers (India) Ltd., [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591, the Constitution (Forty-sixth Amendment) Act, 1982 (hereinafter referred to as “the Amendment Act”), was enacted. The Statement of Objects and Reasons attached to the Amendment Act has stated broadly that the expression “sale of goods” should have been interpreted broadly but had been interpreted narrowly and the words “sale of goods” in the Seventh Schedule have been construed as having the same meaning as in the Sale of Goods Act, 1930.

22. In the Statement of Objects and Reasons, various decisions of the Supreme Court, namely, State Of Madras v. Gannon Dunkerley & Co., (Madras) Ltd, [1958] 9 STC 353 (SC) : AIR 1958 SC 560, State of Himachal Pradesh v. Associated Hotels of India Ltd., [1972] 29 STC 474 (SC) : (1972) 1 SCC 472 : AIR 1972 SC 1131, New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, [1963] 14 STC 316 (SC) : AIR 1963 SC 1207, Oil and Natural Gas Commission v. State of Bihar, [1976] 38 STC 435 (SC) : (1976) 4 SCC 42 : AIR 1976 SC 2478 and Vishnu Agencies v. Commercial Tax Officer, [1978] 42 STC 31 (SC) : (1978) 1 SCC 520 : AIR 1978 SC 449, have been referred to.

23. In paragraphs 8 and 13 of the Statement of Objects and Reasons, the cases of Northern India Caterers (India) Ltd. v. Lt. Governor Of Delhi., [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591 and State of Himachal Pradesh v. Associated Hotels of India Ltd., [1972] 29 STC 474 (SC) : (1972) 1 SCC 472 : AIR 1972 SC 1131 have been referred.

24. In paragraph 13 of the Statement of Objects and Reasons, it is stated as follows:

“The proposed amendments would help in the augmentation of the State revenues to a considerable extent. Clause 6 of the Bill seeks to validate laws levying tax on the supply of food or drink for consideration and also the collection or recoveries made by way of tax under any such law. However, no sales tax will be payable on food or drink supplied by a hotelier to a person lodged in the hotel during the period from the date of the judgment in the Associated Hotels of India case, [1972] 29 STC 474 (SC) and the commencement of the present Amendment Act if the conditions mentioned in sub-clause (2) of clause 6 of the Bill are satisfied. In the case of food or drink supplied by restaurants this relief will be available only in respect of the period after the date of judgment in the Northern India Caterers (India) Limited case, [1978] 42 STC 386 (SC) and the commencement of the present Amendment Act.”

25. The amendments with which we are concerned at present, are the amendment of article 366 of the Constitution which is a definition clause by which a new clause (29A) has been inserted. The relevant part of clause (29A) inserted in article 366 of the Constitution, reads as under:

“(29A) ‘tax on the sale or purchase of goods’ includes—

(a) ……………………………………

(b) ……………………………………

(c) ……………………………………

(d) ……………………………………

(e) ……………………………………

(f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration,

and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.”

26. Then there is clause 6 which is a validation and exemption clause. Clause 6 runs as under:

“6. Validation and exemption. —(I) For the purposes of every provision of the Constitution in which the expression ‘tax on the sale or purchase of goods’ occurs, and for the purposes of any law passed or made, or purporting to have been passed or made, before the commencement of this Act, in pursuance of any such provision,—

(a) the said expression shall be deemed to include, and shall be deemed always to have included, a tax (hereafter in this section referred to as the aforesaid tax) on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating) for cash, deferred payment or other valuable consideration; and

(b) every transaction by way of supply of the nature referred to in clause (a) made before such commencement shall be deemed to be, and shall be deemed always to have been, a transaction by way of sale, with respect to which the person making such supply is the seller and the person to whom such supply is made, is the purchaser,

and notwithstanding any judgment, decree or order of any court, tribunal or authority, no law which was passed or made before such commencement and which imposed or authorised the imposition of, or purported to impose or authorise the imposition of, the aforesaid tax shall be deemed to be invalid or ever to have been invalid on the ground merely that the legislature or other authority passing or making such law did not have competence to pass or make such law, and accordingly:—

(i) all the aforesaid taxes levied or collected or purporting to have been levied or collected under any such law before the commencement of this Act shall be deemed always to have been validly levied or collected in accordance with law;

(ii) no suit or other proceeding shall be maintained or continued in any court or before any tribunal or authority for the refund of, and no enforcement shall be made by any court, tribunal or authority of any decree or order directing the refund of, any such aforesaid tax which has been collected;

(iii) recoveries shall be made in accordance with the provisions of such law of all amounts which would have been collected thereunder as such aforesaid tax if this section had been in force at all material times.

(2) Notwithstanding anything contained in sub-section (1), any supply of the nature referred to therein shall be exempt from the aforesaid tax—

(a) where such supply has been made, by any restaurant or eating house (by whatever name called), at any time on or after the 7th day of September, 1978, and before the commencement of this Act and the aforesaid tax has not been collected on such supply on the ground that no such tax could have been levied or collected at that time; or

(b) where such supply, not being any such supply by any restaurant or eating house (by whatever name called), has been made at any time on or after the 4th day of January, 1972, and before the commencement of this Act and the aforesaid tax has not been collected on such supply on the ground that no such tax could have been levied or collected at that time:

Provided that the burden of proving that the aforesaid tax was not collected on any supply of the nature referred to in clause (a) or, as the case may be, clause (b), shall be on the person claiming the exemption under this sub-section.

(3) For the removal of doubts, it is hereby declared that,—

(a) nothing in sub-section (1) shall be construed as preventing any person—

(i) from questioning in accordance with the provisions of any law referred to in that sub-section, the assessment, reassessment, levy or collection of the aforesaid tax, or

(ii) from claiming refund of the aforesaid tax paid by him in excess of the amount due from him under any such law; and

(b) no act or omission on the part of any person, before the commencement of this Act, shall be punishable as an offence which would not have been so punishable if this Act had not come into force.”

27. In Uttar Pradesh, the sales taxation is covered by the U.P Sales Tax Act, 1948, which is a Pre-Constitution law.

28. The word “business” is defined in section 2(aa) of the U.P Sales Tax Act, 1948, as under:

“2. (aa) ‘business’, in relation to business of buying or selling goods, includes:—

(i) any trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and

(ii) any transaction of buying, selling or supplying plant, machinery, raw materials, processing materials, packing materials, empties, consumable stores, waste or by-products, or any other goods of a similar nature or any unserviceable or obsolete or discarded machinery, or any parts or accessories thereof or any waste or scrap or any of them, which is ancillary to or is connected with or is incidental to, or results from such trade, commerce, manufacture, adventure or concern;

but does not include any activity in the nature of mere service or profession which does not involve the purchase or sale of goods.”

29. The word “sale” is defined in section 2(h) of the U.P Sales Tax Act, 1948, as under:

“2. (h) ‘Sale’ means within its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge.

Explanation I. —A transfer of goods on hire-purchase or other instalment system of payment shall, notwithstanding the fact that the seller retains a tittle to any goods as security for payment of the price, be deemed to be a sale.”

30. There were originally three explanations but the two explanations, namely, explanations II and III, have since been deleted. The rest of the sub-section is the same as originally enacted by the legislature except for the words “and includes forward contracts” have since been deleted.

31. The word “turnover” is defined in section 2(i) of the U.P Sales Tax Act, 1948, as under:

“2. (i) ‘turnover’ means the aggregate amount for which goods are supplied or distributed by way of sale or are sold, by a dealer either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration.

32. Explanation II. —Subject to such conditions and restrictions, if any, as may be prescribed in this behalf,—

(i) the amount for which goods are sold shall include any sums charged for anything done by the dealer in respect of the goods sold at the time of or before the delivery thereof, other than cost of freight or delivery, or cost of installation or the amount realised as sales or purchase tax, when such cost or amount is separately charged;

(ii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover; and

(iii) where for accommodating a particular customer, a dealer obtains goods from another dealer and immediately disposes of the same without profit to the customer, the sale in respect of such goods shall be included in the turnover of the latter dealer alone.”

33. The liability to tax, under the U.P Sales Tax Act, 1948, is imposed by section 3 thereof, which provides that subject to the provisions of this Act, every dealer shall for each assessment year pay a tax at the rates provided by or under section 3-A or section 3-D on his turnover of sales or purchases or both, as the case may be, which shall be determined in such manner as may be prescribed.

34. Then comes section 3-A of the U.P Sales Tax Act. sub-section (2-A) of section 3-A with which we are concerned, is reproduced below:

“(2-A) The turnover in respect of goods other than those referred to in subsections (1) and (2) shall be liable to tax at the point of sale by the manufacturer or importer at the rate of seven per cent:

Provided that the State Government may, from time to time, by notification in the Gazette, modify the rate or point of tax on the turnover in respect of any such goods with effect from such date, as may be notified in that behalf, so, however, that the rate does not exceed seven per cent.”

35. There are notifications issued by the State Government under the provisions of sub-section (2-A) of section 3-A which are Notification No. ST-II-1968.X— 10(2)-76 dated 31st March, 1976, as also an earlier Notification No. ST-II-4949.X —10(2)-74 dated 30th May, 1975. Entry 22 is common to both the notifications. The only difference is that in the earlier notification dated 30th May, 1975, the tax rate in respect of entry 22, with which we are concerned, was 3 per cent and later on, vide notification dated 31st March, 1976, it was raised to 4 per cent. Entry 22 runs as follows:

“22. Sweetmeats, namkin, cooked food, confectionery, rewari, gajak, biscuits, bread, cakes, pastries, buns, jams, jellies, murabbas, gulkand, churan, chatni and achar, when sold loose or unpacked.”

36. The State is entrusted with the powers to levy taxes on the sale and purchase of goods by entry 54 of List II of the Seventh Schedule. It runs as follows:

“54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92-A of List I.”

37. The Statement of Objects and Reasons to the Amendment Act states that the phrase “sale of goods” has been interpreted by the Supreme Court as connoting only those sales which come within the meaning of the Sale of Goods Act, 1930.

38. The amendment which has now been made by way of addition of a new clause (29A) in article 366 of the Constitution which is a definition clause, is that the phrase “tax on the sale or purchase of goods” in the Constitution will include certain heads of taxation which had been held to be outside the scope of entry 54 of List II of the Seventh Schedule and to include a tax on the supply by way of or as part of any service or in any other manner whatsoever, of goods being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service is for cash, deferred payment or other valuable consideration and it has been further provided that such transfer, delivery or supply of goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.

39. The legislative competence of the State to legislate under entry 54 of List II of the Seventh Schedule has, therefore, been widened to include those transactions which are described in the newly added clause (29A) in the definition article 366 of the Constitution.

40. What has to be emphasized is that the judgments of the Supreme Court holding that entry 54 contemplated only such sale as falling within the meaning of the words “sale of goods” as contemplated under the Sale of Goods Act, 1930, have not been abrogated. The scope of what the Amendment Act has affected is the widening of the field covered by entry 54 of List II of the Seventh Schedule.

41. At this stage, it is necessary to advert to the argument of Sri J.C Bhardwaj, who appearing on behalf of some of the assessees, has argued that by widening the scope of the term “taxes on the sale or purchase of goods” in entry 54 of List II of the Seventh Schedule, Parliament has usurped the judicial function and made the interpretation of law by the Supreme Court to be erroneous. He argues that what Parliament has done is the usurpation of judicial function and is, therefore, outside the scope of the powers of Parliament under article 368 of the Constitution.

42. In this connection, he has referred to several cases including the cases of R.D Doongaji v. State of M.P, (1976) 4 SCC 750 : AIR 1976 SC 2250 and I.N Saksena v. State of M.P, (1976) 4 SCC 750 : AIR 1976 SC 2250 as also the case of Janapada Sabha, Chhindwara v. Central Provinces Syndicate Ltd., (1970) 1 SCC 509 : AIR 1971 SC 57. In that case the Supreme Court speaking of validating laws has observed in paragraphs 10 and 11 of the judgment as follows:

“10. The nature of the amendment made in Act 4 of 1920 has not been indicated. Nor is there anything which enacts that the notifications issued without the sanction of the State Government must be deemed to have been issued validly under section 51(2) without the sanction of the Local Government. On the words used in the Act, it is plain that the legislature attempted to overrule or set aside the decision of this court. That, in our judgment, is not open to the legislature to do under our constitutional scheme. It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare that the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of a court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the court.

11. This Court in Amalgamated Coalfields Ltd.'s case, [1963] Supp 1 SCR 172 : AIR 1964 SC 1013 held that the cess was not validly imposed and levied because the sanction of the State Government was not obtained at the time of enhancing the rate of levy of tax. That judgment was binding between the parties and also by virtue of article 141 binding on all courts in the territory of India. The legislature could not say that declaration of law was either erroneous, invalid or ineffective either as a precedent or between the parties.”

43. In that case the Supreme Court has laid down the test which a validating law is required to pass. It was held that before a validating law could be effected (1) it had to be within the competence of the legislature making the amendment, (2) it should have removed the defects pointed out by the court and (3) it should be consistent with Chapter III of the Constitution.

44. Sri J.C Bhardwaj has, in particular, referred to the judgment of the Supreme Court in the case of Smt. Indira Gandhi v. Raj Narain, 1975 Supp SCC 1 : AIR 1975 SC 2299 and has invited my attention to pages 2317 and 2347 of the judgment. In paragraph 191 of the judgment, the position in regard to a validating legislation, as applicable to the United States is quoted as under:

“The general rule is that the legislature may not destroy, annul, set aside, vacate, reverse, modify or impair the final judgment of a court of competent jurisdiction, so as to take away private rights which have become vested by the judgment. A statute attempting to do so has been unconstitutional as an attempt on the part of the legislature to exercise judicial power, and as a violation of the constitutional guarantee of due process of law. The legislature is not only prohibited from reopening cases previously decided by the courts, but is also forbidden to affect the inherent attributes of a judgment. That the statute is under the guise of an act affecting remedies does not alter the rule. It is worthy of notice, however, that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the judgment found to be legal, or making legal that which the judgment found to be illegal.”

45. Sri J.C Bhardwaj has further elaborated this argument by arguing that it was not competent for Parliament to make any amendment in regard to taxes on sale or purchase of goods which are within the legislative competence of the State Legislature.

46. The short answer to the argument of Sri J.C Bhardwaj is that Parliament has not declared any judgment of the Supreme Court or of any High Court to be erroneous or void. It has only altered the definition of the phrase “taxes on the sale or purchase of goods” in the Constitution and has provided for certain consequences on account of alteration of the definition by section 6 of the Amendment Act.

47. The argument of Sri J.C Bhardwaj that Parliament could not legislate in respect of a tax on the sale or purchase of goods because that subject is covered by entry 54 of List II of the Seventh Schedule cannot be accepted because the amendment that has been made by Parliament is under its constituent powers under article 368 of the Constitution. Clause (1) of article 368 of the Constitution provides that notwithstanding anything in this Constitution, Parliament may in exercise of its constituent powers amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. Thus, notwithstanding the fact that under entry 54 of List II of the Seventh Schedule, taxes on sale or purchase of goods is within the legislative competence of the State Legislature, Parliament was competent to legislate in respect of taxes on sale or purchase of goods in its constituent powers and widen the scope of entry 54 of List II of the Seventh Schedule by adding clause 29A in article 366 of the Constitution as also by providing for certain consequences of the amendment by section 6 of the Amendment Act.

48. The Supreme Court in the case of Sasanka Sekhar Maity v. Union of India, (1980) 4 SCC 716 : AIR 1981 SC 522 wherein the question was whether the provisions of Chapter IIB of the West Bengal Land Reforms Act, 1955 (Act 10 of 1956), inserted by the West Bengal Land Reforms (Amendment) Act, 1971 (President's Act 3 of 1971), and replaced by the West Bengal Land Reforms (Amendment) Act, 1972 (Act 12 of 1972), with retrospective effect from 12th February, 1971, which provide for a fixation of ceiling on agricultural holdings and for matters ancillary thereto are violative of the second proviso to article 31A(1) of the Constitution, has observed in paragraphs 33, 34 and 35 of its judgment as under:

“33. After the judgment of the High Court, the Kerala Land Reforms (Amendment) Act, 1971, was enacted. When this court in Kunjukutty's case, (1972) 2 SCC 364 : AIR 1972 SC 2097 upheld the judgment of the High Court striking down the explanation to section 85(1) of the Kerala Land Reforms Act, 1963, Parliament by the Constitution (Twenty-ninth Amendment) Act, which was assented to by the President on 9th June, 1972, inserted both the Kerala Land Reforms (Amendment) Act, 1969, and the Kerala Land Reforms (Amendment) Act, 1971, in the Ninth Schedule to the Constitution. The challenge to the validity of the Constitution (Twenty-ninth Amendment) Act was allowed to be raised as an additional ground in Kesavananda Bharati v. State of Kerala, [1973] Supp SCR 1 : (1973) 4 SCC 225 : AIR 1973 SC 1461 and the court by majority of 7:6 upheld the validity of the Twenty-ninth Amendment.

34. By parity of reasoning it must follow as a necessary corollary that the West Bengal Land Reforms Act, 1955 (Act 10 of 1956), and the West Bengal Land Reforms (Amendment) Act, 1972 (Act 12 of 1972), which introduced Chapter IIB therein with retrospective effect from 12th February, 1971, having been placed in the Ninth Schedule by the Constitution (Thirty-fourth Amendment) Act, 1974, as items 60 and 81 thereof, their validity cannot be questioned under article 31B. The challenge to the constitutional validity of Article 31B as well as the Constitution Amending Act, whereby the concerned enactments were put in the Ninth Schedule on the ground that these violate the basic structure or features of the Constitution has been separately dealt with and hence the same need not be discussed here.

35. As regards the submission that Parliament cannot in exercise of its constituent power under article 368 validate a State law, it seems to us that the entire submission proceeds on a misconception arising from failure to distinguish between a law made in exercise of legislative power and the law made in exercise of the constituent power. When article 31B was introduced in the Constitution by the Constitution (First Amendment) Act, 1951, it validated retrospectively 13 Acts specified in the Ninth Schedule, which, but for this provision, were liable to be impugned under article 13(2). Article 31B conferred constitutional immunity to such laws (all being enactments of State Legislatures) and Parliament alone could have done so by inserting the said article in the Constitution in exercise of its constituent power under article 368. In substance and reality it was a constitutional device employed to protect State laws from becoming void under article 13(2). It will appear clear that the language in article 31B is virtually lifted from article 13(1) and (2), while article 13(2) invalidates legislation, which takes away or abridges the rights conferred by Part III, article 31B extends ‘protective umbrella’ to such legislation if it is included in the Ninth Schedule, and therefore, the courts will have no power to go into the constitutionality of the enactment as included in the Ninth Schedule except on the ground of want of legislative competence.”

49. I, therefore, find that the scope of the State's legislative competence, under entry 54 of List II of the Seventh Schedule, has been widened by the addition of clause (29A) in article 366 of the Constitution and as from that date the State Legislatures are competent to enact taxes on sale or purchase of goods by hotel and restaurant owners to their customers.

50. We then come to section 6 of the Amendment Act.

51. The argument of Sri J.C Bhardwaj is that it is only declaratory and does not have any effect on past transactions.

52. Sri S.O.P Agrawal has argued that what is contained in section 6 of the Amendment Act, has not been inserted in the Constitution and as such has not been made by Parliament under its constituent powers.

53. Sri S.O.P Agrawal and Sri Bharatji Agrawal have argued that no part of the U.P Sales Tax Act, 1948, in so far as the present controversy is involved, has been invalidated by any court and so section 6 of the Amendment Act, which is both a validating and exemption clause, has no application.

54. Sri Bharatji Agrawal appearing on behalf of the assessee has argued that section 6 of the Amendment Act does not apply to a pre-Constitution law, and as the U.P Sales Tax Act, 1948, is a pre-Constitution law, section 6 can have no effect on the decisions of any matter arising out of the U.P Sales Tax Act, 1948.

55. I will first take up the question as to whether section 6 of the Amendment Act applies to only post-Constitution law or it applies also to a Pre-Constitution law, as has been urged by Sri A.P Misra, the learned standing counsel.

56. section 6 of the Amendment Act has already been quoted above but a part of sub-section (1) of section 6 may be again usefully reproduced:

“For the purposes of every provision of the Constitution in which the expression ‘tax on the sale or purchase of goods’ occurs, and for the purposes of any law passed or made, or purporting to have been passed or made, before the commencement of this Act, in pursuance of any such provision…………”

57. When it speaks of the Constitution, it obviously speaks of the Constitution of India as it exists and when it speaks of any law passed or made or purporting to have been passed or made, before the commencement of this Act, in pursuance of any such provision, in which the phrase “tax on the sale or purchase of goods” occurs, it obviously contemplates a law made or purporting to have been made under the provisions of the Constitution and of no other.

58. Taxes on the sale of goods and advertisements was a legislative head of a State by virtue of entry 48 of List II of the Seventh Schedule of the Government India Act, 1935. There are numerous Sales Tax Acts in force some of which are Pre-Constitution and some of which are Post-Constitution. A few of the Pre-Constitution Sales Tax Acts are Bihar Sales Tax Act, 1947; U.P Sales Tax Act, 1948; Punjab General Sales Tax Act, 1948; Bengal Finance (Sales Tax) Act, 1941; Orissa Sales Tax Act, 1947; East Punjab General Sales Tax Act, 194S; Assam Sales Tax Act, 1947, and Madras General Sales Tax Act, 1939. Post-Constitution Sales Tax Acts are Bombay Sales Tax Act, 1959; Gujarat Sales Tax Act, 1970; Karnataka Sales Tax Act, 1957; Kerala General Sales Tax Act, 1963 and Rajasthan Sales Tax Act, 1954.

59. In his very able argument, Sri A.P Misra, the learned standing counsel, has argued, in reply, that in the Statement of Objects and Reasons attached to the Amendment Act, Parliament has referred to a number of decisions of the Supreme Court and they all are decisions given in respect of Pre-Constitution laws. He also referred to, in particular, paragraph 13 of the Statement of Objects and Reasons attached to the Amendment Act. He contends that Parliament, while enacting the Amendment Act, had, in mind, the decisions given by the Supreme Court in regard to Pre-Constitution laws and section 6 of the Amendment Act sought also to validate laws levying tax on the supply of food and drinks by the hotel owners in regard to Pre-Constitution laws also.

60. Sri A.P Misra has argued that if two interpretations are possible, the court should place that interpretation on the provisions which will suppress the mischief and advance the remedy. Sri Misra has referred to Maxwell on the Interpretation of Statutes [Twelfth Edition, Third Impression (1980) by P. St. J. Langan] wherein, at page 40, the learned author refers to the mischief rule in the following words:

“In Heydon's case, (1584) 3 Co Rep 7 a in 1584, it was resolved by the Barons of the Exchequer (at p. 7b) ‘that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1st). What was the common law before the making of the Act. (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And (4th). The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to true intent of the makers of the Act, pro bono publico’. In 1898, Lindley, M.R, said: ‘In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon's case, (1584) 3 Co Rep 7 a to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief”

61. At page 96 of the same book, the learned author says that it is said to be the duty of the judge to make such construction of a statute as shall suppress the mischief and advance the remedy. To this end, a certain extension of the letter is not unknown, even in criminal statutes.

62. Sri A.P Misra has then referred to a decision of the Supreme Court in the case of State of Bihar v. Sir Kameshwar Singh, AIR 1952 SC 252, wherein the Supreme Court, at page 285, in paragraph 95, has observed as follows:

“This obligation to provide for compensation is no doubt one of the provisions of article 31(2) but if, as contended by Mr. P.R Das, the self-same provision be found elsewhere in the same Constitution, e.g, entry 36 in List II or entry 42 in List III, then that ‘provision’ must also be regarded as having been covered by article 31(4) and the two added articles for otherwise those articles will be rendered nugatory. In my opinion, if, two constructions are possible, the court should adopt that which will implement and discard that which will stultify the apparent intention of the makers of the Constitution. Further, it must be borne in mind that article 31(4) which applies ‘notwithstanding anything in this Constitution’ will, by force of the very words, protect the Act against even legislative incompetency, if any, arising out of the alleged non-compliance with the suggested implied provisions, if any, of entry 36 in List II and entry 42 in List III.”

63. Sri A.P Misra has also referred, in this connection, to a decision of the Supreme Court in the case of Shivanarayan Kabra v. State Of Madras, AIR 1967 SC 986 wherein in paragraph 7 it was observed as follows:

“It was argued on behalf of the appellant that the contracts in this case were not really meant for delivery of goods but were speculative in character. It was contended that to a contract of this description the Act has no application. Mr. Naunit Lal argued that the words of section 2(c) must be literally construed and must be taken to cover only those contracts in which the parties intended actual delivery of goods at a future date. In our opinion, the interpretation for which Mr. Naunit Lal contends is against the whole scheme and purpose of the Act. If the expression ‘forward Contracts’ in section 2(c) is not construed so as to include speculative contracts which ostensibly are for delivery of goods the provisions of the Act would be rendered nugatory. It is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the statute. In construing, therefore, section 2(c) of the Act and in determining its true scope it is permissible to have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the statute, the reason which led to its being passed, the mischief which it intended to suppress and the remedy provided by the statute for curing the mischief. That was the rule laid down in Heydon's case, (1584) 3 W Rep 16 : 76 ER 637, which was accepted by this court in Bengal Immunity Co. Ltd. v. State of Bihar, [1955] 6 STC 446 (SC) : [1955] 2 SCR 603 : AIR 1955 SC 661.”

64. It is in this context that the learned standing counsel, Sri A.P Misra, argues that Parliament having found that the phrase “tax on the sale or purchase of goods” has been narrowly construed by the Supreme Court as covering only those sales which were sales within the meaning of the Sale of Goods Act, 1930, and no other transactions, Parliament decided to cure it with a view to enhance the revenue of the States, and therefore, Parliament enacted the Amendment Act. For this reason, Sri A.P Misra urges that sub-section (1) of section 6 of the Amendment Act should be read as covering both Pre-Constitution laws and Post-Constitution laws.

65. The argument on behalf of the assessee is that the language of sub-section (1) of section 6 of the Amendment Act is clear and unambiguous and as such it is not permissible for this Court to interpret it in a manner which is not consistent with the language of the statute after taking into account the Statement of Objects and Reasons as being sought to be done by the learned standing counsel.

66. Several cases have been relied upon and some of them are referred to here. One of the cases is Commissioner of Sales Tax, U.P, Lucknow v. Parson Tools and Plants, Kanpur, [1975] 35 STC 413 (SC) : (1975) 4 SCC 22. In paragraph 15 of the judgment it was observed as follows:

“Be that as it may, from the scheme and language of section 10, the intention of the legislature to exclude the unrestricted application of the principles of sections 5 and 10 of the Limitation Act is manifestly clear. These provisions of the Limitation Act, which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, cannot be imported into it “by analogy. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded ‘according to the intent of them that made it’. ‘The will of the legislature is the supreme law of the land, and demands perfect obedience.’ ‘Judicial power is never exercised’, said Marshall, C.J, of the United States, ‘for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law’.”

67. In paragraph 16 it was observed as follows:

“If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so ‘would be entrenching upon the preserves of legislature’, the primary function of a court of law being jus dicere and not jus dare.”

68. Again in paragraph 23 of the judgment it was observed as under:

“We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law giver; more so if the statute is a taxing statute.”

69. Another decision relied upon by Sri Bharatji Agrawal in this regard is a decision in the case of James v. Commonwealth of Australia, [1936] AC 578. In that case, at page 592, the Judicial Committee of the Privy Council observed as follows:

“On the general purview of the Constitution the argument of convenience and necessity must be put right on one side. The argument that there are gaps to be filled must be left out of consideration and the term of the Constitution itself must be adhered to.”

70. With reference to the submission of the learned standing counsel, Sri A.P Misra, based on the Statement of Objects and Reasons, there is a decision of the Supreme Court in the case of Aswini Kumar Ghose v. Arbinda Bose, AIR 1952 SC 369 which ruled out such a reference. Patanjali Sastri, C.J, in paragraphs 32 and 33 of the judgment observed as follows:

“32. As regards the propriety of the reference to the Statement of Objects and Reasons, it must be remembered that it seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the Legislature, for they do not form part of the Bill and are not voted upon by the members. We, therefore, consider that the Statement of Objects and Reasons appended to the Bill should be ruled out as an aid to the construction of a statute.

33. The omission of part (a) of the proviso to clause (2) of the Bill seems to us to stand on no higher footing. It sought to exclude from the purview of the Bill the right of an Advocate of the Supreme Court to plead or to act in any High Court in exercise of its Original Jurisdiction. Its omission was strongly relied on by the petitioner as indicating the intention of Parliament that the right of a Supreme Court Advocate to plead and to act should prevail also on the Original Side of a High Court. It was urged that acceptance or rejection of amendments to a Bill in the course of Parliamentary proceedings forms part of the pre-enactment history of a statute and as such might throw valuable light on the intention of the legislature when the language used in the statute admitted of more than one construction. We are unable to assent to this proposition.

The reason why a particular amendment was proposed or accepted or rejected is often a matter of controversy, as it happened to be in this case, and without the speeches bearing upon the motion, it cannot be ascertained with any reasonable degree of certainty. And where the legislature happens to be bicameral, the Second Chamber may or may not have known of such reason when it dealt with the measure. We hold accordingly that all the three forms of extrinsic aid sought to be resorted to by the parties in this case must be excluded from consideration in ascertaining the true object and intention of the legislature.”

71. However, in the case of Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080, Subba Rao, J., delivering the judgment of the majority, extracted from the Statement of Objects and Reasons for the Constitution (Fourth Amendment) Act, 1955, that part which was relevant to the acquisition of estates, and added:

“The object was, therefore, to bring about a change in the agricultural economy but not to recognise or confer any title in the whole or a part of an estate on junior members of a family. This court has held in Aswini Kumar Ghose v. Arbinda Bose, AIR 1952 SC 369 that the statement of objects and reasons is not admissible as an aid to the construction of a statute. But we are referring to it only for the limited purpose of ascertaining the conditions prevailing at the time the Bill was introduced, and the purpose for which the amendment was made.”

72. Thus, the stringent rule against reference to the Statement of Objects and Reasons laid down in Aswini Kumar Ghose v. Arbinda Bose, AIR 1952 SC 369 has been diluted by the decision given in the aforesaid case.

73. In the case of S. Narayanaswami v. G. Panneerselvam, (1972) 3 SCC 717 : AIR 1972 SC 2284 the Supreme Court while construing article 171 of the Constitution, observed in paragraph 13 as follows:

“13. It may be possible to look for legislative intention in materials outside the four corners of a statute where its language is really ambiguous or conflicting. But, where no such difficulty arises, the mere fact that the intentions of the law-makers, sought to be demonstrated by what was said by some of them or by those advising them when the Constitution was on the anvil were really different from the result which clearly follows from the language used in the legislative provisions under consideration, could not authorise the use of such an exceptional mode of construction. ‘It is well accepted’, said Lord Morris (see Davies, Jenkins & Co. v. Davies, [1967] 2 WLR 1139 at page 1156), ‘that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law’.”

74. Again, in paragraph 19, the court observed as follows:

“We think that the view contained in the judgment under appeal, necessarily results in writing some words into or adding them to the relevant statutory provisions, to the effect that the candidates from graduates' constituencies of Legislative Councils must also possess the qualification to having graduated. This contravenes the rule of ‘plain meaning’ or ‘literal’ construction which must ordinarily prevail. A logical corollary of that rule is that ‘a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made’ (see Craies on Statute Law, 6th Edn., page 70). An application of the rule necessarily involves that addition to or modification of words used in statutory provisions is not generally permissible: see e.g, Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459, British India General Insurance Co. Ltd. v. Captain Itbar Singh, [1960] 1 SCR 168 : AIR 1959 SC 1331, R.G Jacob v. Republic Of India., [1963] 3 SCR 800 : AIR 1963 SC 550. Courts may depart from this rule only to avoid a patent absurdity (see e.g, State of Madhya Pradesh v. Azad Bharat Finance Co., AIR 1967 SC 276). In Hit a Devi v. District Board Shahjahanpur, AIR 1952 SC 362 at 365 this court observed:

‘No doubt it is the duty of the court to try and harmonise the various provisions of an Act passed by the legislature. But it is certainly not the duty of the court to stretch the words used by the legislature to fill in gaps or omissions in the provisions of an Act’.”

75. In paragraph 20 of the judgment a passage from Crawford's “Construction of Statutes” (1940 Edn.), at page 269, was cited with approval by the court which ran as under:

“Where the statute's meaning is clear and explicit, words cannot be interpolated! In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed, might be altered by the addition of new words. They should not be interpolated even though the remedy of the Statute would thereby be advanced, or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute.”

76. The opening part of sub-section (1) of section 6 provides that the expression “tax on the sale or purchase of goods” wherever it is used in the Constitution and for the purpose of any law passed or made, or purporting to have been passed or made, before the commencement of the Amendment Act, shall be deemed to include, and always to have included, clauses (a) and (b) thereof.

77. It seems that the words “in pursuance” in sub-section (1) qualifies the phrase “for the purposes of any law passed or made, or purporting to have been passed or made, before the commencement of this Act” under the provisions relating to “tax on the sale or purchase of goods” and to no other.

78. The phrase “before the commencement of this Act” in sub-section (1) does not mention any earlier date and is completely unqualified. It has been argued that it means a period anterior in time of the coming into force of the Constitution itself. On the other hand, the assessees urged that the phrase “before the commencement of this Act” referred to the point of time when the Constitution itself came into force.

79. Prior to coming into force of the Constitution, the Government of India Act, 1935, under entry 48 of List II of the Seventh Schedule, authorised levy of taxes on sales of goods by the State Legislatures. The entry 48 ran as follows:

“48. Taxes on the sale of goods and on advertisements.”

80. Thus, the U.P Sales Tax Act, 1948, was enacted under entry 48 referred to, above. That entry is not identical with entry 54 of List II of the Seventh Schedule which runs as under:

“54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92-A of List I.”

81. Thus, the U.P Sales Tax Act, 1948, cannot be said to have been made in pursuance of the expression’ “taxes on the sale or purchase of goods” and consequently sub-section (1) of section 6 of the Amendment Act can have no application to the U.P Sales Tax Act, 1948.

82. The further argument of the learned standing counsel, Sri A.P Misra, in this connection, is that the notifications imposing the taxes are Post-Constitution notifications and the notification being law made subsequent to the coming into force of the Constitution, sub-section (1) of section 6 of the Amendment Act is attracted.

83. He further argues that under entry 22 of the notification dated 31st March, 1976, referred to above, the legislature prescribed sales tax on the items mentioned therein including cooked food, etc. Thus, when cooked food was sold by a hotelier or in a restaurant, the provisions of section 6, sub-section (1), of the Amendment Act are attracted.

84. The answer to this argument is that by virtue of article 372, clause (1), the U.P Sales Tax Act, 1948, continued in force and as it had been enacted under entry 48 of List II of the Seventh Schedule to the Government of India Act, 1935, it was not made in pursuance of the provision authorising imposition of “taxes on the sale or purchase of goods” and as such section 6 of the Amendment Act would not apply. Further the notifications referred to above were issued under a law made under entry 48 of List II of the Seventh Schedule to the Government of India Act, 1935, which continued in force under article 372, clause 1 of the Constitution of India.

85. The learned standing counsel, Sri A.P Misra, has argued that the word “purporting” in sub-section (1) has been used to mean such laws of the State Legislatures which were ostensibly made under entry’ 54 of List II of the Seventh Schedule but on the basis of the interpretation of the word “sale” given by the Supreme Court in the cases of Associated Hotels of India Ltd., [1972] 29 STC 474 (SC) : (1972) 1 SCC 472 : AIR 1972 SC 1131 and Northern India Caterers (India) Ltd., [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591 such laws would be ultra vires of the State Legislatures.

86. In this connection, he lias referred, to the case of Girdharilal v. Lalchand, AIR 1970 Raj 145 wherein, in paragraph 14, it was observed as follows:

“14. For the purposes of the case before me all that I have to decide is whether the act or omission alleged against accused Nos. 2 and 6, namely, Girdharilal Mahajan and Ramchander, is reasonably related to the discharge of their duty or omission of the discharge of their duty. I agree with the observations of the Punjab High Court that it is not a pretended or fanciful justification that should be taken into account but a connection close enough to bring the act or omission within the ambit of the official act done or purported to be done. The legislature has advisably used to expressions ‘acting’ or ‘purporting to act’, the latter expression means that even if the action may be somewhat beyond the scope of official duty, but was done under the colour of office, the protection can in a given case be considered. Having regard to these principles, in my opinion, the accused Nos. 2 and 6, namely, Girdharilal Mahajan and Ramchander, are alleged to have ordered the collection of refuse and omitted to cause its removal from the road and they have thereby committed the public nuisance. Both these are directly related to their duties as Municipal Administrator and the Municipal Commissioner and they cannot in my opinion be prosecuted without the sanction under section 3.97, Criminal Procedure Code, and therefore, the case against them cannot be proceeded with.”

87. The learned standing counsel has also referred to a decision in the case of Azimunnissa v. Deputy Custodian, Evacuee Properties, Deoria, AIR 1961 SC 365 wherein, in paragraph 20, it was observed as follows:

“20. The word ‘purport’ has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and hot the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable: Dicker v. Angerstein, (1876) 3 Ch D 600 at page 603. Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so. This means that at the time when the Act purported to vest the property in dispute in the Custodian even though the power was not exercisable, section 8(2-A) by giving a retrospective effect to section 8(2) of the Act makes the vesting as if it was vesting under Section 8(2) of the Act and therefore the attack on the ground of invalidity cannot be sustained. By section 5 of U.P Ordinance 1 of. 1949 the property of Khatoon Bibi who became an ‘evacuee’ under section 2(c) and her property ‘evacuee property’ under section 2(d) was vested in the Custodian of Evacuee Property Of the Province of U.P That Ordinance was allowed to lapse. By Central Ordinance 12 of 1949 as subsequently amended the vesting of evacuee property was deemed to be under that Ordinance, which in its turn was repealed under section 55 of Ordinance 27 of 1949 which was a valid piece of legislation. By section 8(2) of that Ordinance the vesting under the previous Ordinance was deemed to be under that Ordinance as if it was in force on the date of the vesting. Ordinance 27 of 1949 was repealed by the Act which contained provisions as to vesting in section 8(2), which was similarly worded as the corresponding provision of the Ordinance and therefore by a fiction of law the original vesting was to be treated as if the Act was in force when the first vesting took place. The High Court of Allahabad in Azizunnisa's case (S) AIR 1957 All 561 held the vesting to be invalid because up to the time of Ordinance 12 of 1949 and even Ordinance 20 of 1949 legislative competence was lacking, and even by the deeming provisions in sections 8(2) of Ordinance 27 of 1949 or Act 31 of 1950 there was no valid vesting, because the original vesting was bad. We think it unnecessary to decide as to whether the deeming provision of section 8(2) of the Act or of Ordinance 27 of 1949 was sufficient to give validity to the vesting. Section 8(2-A) as introduced into the Act, in our opinion, makes the vesting valid, because it gives validity to the vesting which purported to have taken place as a result of Ordinance 27 of 1949 even though it was only apparently so and was not so in law, because that is what ‘purport’ implies.”

88. The learned standing counsel has then referred to the Stroud's Judicial Dictionary, 4th Edition, Vol. 4, at page 2213, where the word “purport” has been defined as follows:

“When validity is given to anything ‘purporting’ to be done in pursuance of a power, a thing done under it may have validity though done at a time when the power would not be really exercisable: Dicker v. Angerstein, (1876) 3 Ch D 600. In that case it was held that the proviso, following conditional power of sale in a mortgage, that a ‘sale purporting to be made in pursuance’ of the powers shall be valid as to confer a good title on a bona fide purchaser even though the security be satisfied. In the corresponding proviso, in the statutory power of sale, the phrase for ‘purporting’ is ‘professed exercise’.”

89. In reply, Sri Bharatji Agrawal referred to a decision in the case of Balaghat Municipality v. Meghraj, AIR 1966 MP 104 in which case it was held that the word “purport” will not include that which is ultra vires and accordingly, Sri Bharatji Agrawal submitted that the State Legislature could not purport to levy taxes which were outside its legislative competence.

90. Having considered the matter carefully, I am of the view that the word “purporting” in the context in which it is placed in section 6, sub-section (1), of the Amendment Act, covers those cases where the legislature enacted the law relating to sales tax within the scope of its legislative competence under entry 54 of List II of the Seventh Schedule but which because of judicial interpretation turned out to be in excess of power as otherwise the word would have no meaning where it is placed in sub-section (1) of section 6 of the Amendment Act. The Amendment Act was enacted to justify such levies, and therefore, the word “purporting” must cover those taxes.

91. An argument of the learned counsel for the assessee, Sri S.O.P Agrawal and Sri Bharatji Agrawal, here has to be noticed. They argue that the notification under which the tax has been imposed, was issued under sub-section (2-A) of section 3-A which provides that the turnover of goods shall be liable to tax at such rate as the State Government may by notification prescribe.

92. Section 2(h) of the U.P Sales Tax Act, 1948, defines “sale” and section 2(i) of the U.P Sales Tax Act, 1948, defines “turnover”.

93. The argument of the learned counsel for the assessees is that the definitions given in the U.P Sales Tax Act, 1948, have not been altered by Parliament under the Amendment Act.

94. It is further urged that the definitions given in article 366 of the Constitution of India are meant for construing the provisions of the Constitution of India itself and it cannot be imported for the purpose of interpreting an Act.

95. In this connection, reference is made to a decision of a Full Bench of the Nagpur High Court in the case of Pravir Chandra Bhanj Deo Kakatiya v. State of Madhya Pradesh, AIR 1953 Nag 86 (FB) wherein it was held that the definition of “Ruler” contained in clause (22) of article 366 of the Constitution could not be applied to other laws. The relevant observation contained in paragraph 9 of the judgment, is reproduced hereunder:

“The next question is whether the petitioner who claims to be the Ruler is outside the definition. The term ‘Ruler’ is defined thus in clause (22) of article 366 of the Constitution.

‘Ruler’ in relation to an Indian State means the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler.’

According to this definition and also under the agreement which was entered into with the Government of India the petitioner is entitled to be called a Ruler. Since that is so and since the definition in the Act refers to an ‘ex-Ruler’ it is contended that the petitioner cannot fall within that definition. In our opinion, the definition of a Ruler contained in the Constitution is plainly artificial and is therefore applicable only for interpreting the provisions of the Constitution. It cannot be applied for interpreting other Acts. The meaning of the word ‘Ruler’ and of the word ‘ex-Ruler’ must, on the other hand, be ascertained from the dictionary as the Act in question does not define these words.”

96. It is urged that under section 3 of the U.P Sales Tax Act, 1948, which is the charging section, a tax is imposed on the sales and purchases of a dealer. It only contemplates such sale as were taxable under the Government of India Act, 1935. Sales by a dealer where the dominant object was service, have been held by the Supreme Court in Associated Hotels of India’ Ltd., [1972] 29 STC 474 (SC) : (1972) 1 SCC 472 : AIR 1972 SC 113 and Northern India Caterers (India) Ltd., [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591 to be not taxable. Thus, the legislature must be deemed to have excluded such sales when it imposed taxes on the sales and purchases of goods within the meaning of section 3 of the U.P Sales Tax Act.

97. On this basis, it is argued that as the definition of the word “sale” in section 2 of the U.P Sales Tax Act, 1948, having not been altered by the Amendment Act, the original definition stands and under the original definition sales tax cannot be imposed on sales by a hotelier and in a restaurant where the dominant object of the hotelier or the restaurant owner when he effected the supply, was service.

98. Clause (1) read with its sub-clauses (a) and (b) of section 6 of the Amendment Act, by its own force, incorporated a definition of the word “sale” in the State Sales Tax Acts and is, in effect, an amendment of the definition. In this view of the matter if sub-section (1) of section 6 is attracted to a particular statute, the definition of the term “sale” must be deemed to have stood altered.

99. However, as I have already held that sub-section (1) of section 6 of the Amendment Act is not attracted to the U.P Sales Tax Act, 1948, the original definition stands and on that basis the argument of the learned counsel for the assessee must be accepted.

100. If section 6, sub-section (1), of the Amendment Act were to be construed as applying to the U.P Sales Tax Act, 1948, then whenever the turnover of a dealer is to be worked out for the purposes of assessment, his turnover would have to be worked out on the basis of sales which are deemed to be sales within the meaning of sub-section (1) of section 6 of the Amendment Act, and the tax would be assessed accordingly.

101. In the end, I now take up the argument of Sri S.O.P Agrawal that section 6 was not enacted by Parliament under its constituent powers. He argued that sections 2, 3, 4 and 5 of the Amendment Act incorporated amendments of the Constitution and have been made by Parliament under article 368 of the Constitution.

102. He, however, submits that section 6 of the Amendment Act is not enacted by Parliament in its constituent powers. He has further argued that it is only a clause validating the laws made by the State Legislatures.

103. He points out that under the Constitution (First Amendment) Act, 1952. Section 4 thereof added article 31A and section 5 added article 31B to the Constitution.

104. Then he points out that under the Constitution (Fourth Amendment) Act, 1955, section 2 thereof substituted in article 31 of the Constitution for existing clause (2) a new sub-clause and by section 3 in article 31A of the Constitution for the existing clause (1) a new clause was substituted and was always deemed to have been substituted.

105. Thereafter by the Constitution (Fifth Amendment) Act, 1955, in article 3 of the Constitution for the existing proviso, a new proviso was substituted and by the Constitution (Sixth Amendment) Act, 1956, in the Union List, after the existing entry 92, a new entry 92-A was added and in the State List, the existing entry 54 was substituted by a new entry, by section 3 a new clause in article 269 of the Constitution was added, ‘and in article 286 of the Constitution the explanation to clause (1) was omitted and for existing clauses (2) and (3) new clauses (2) and (3) were substituted. In this way, he referred to me to a large number of the constitutional Amendment Acts.

106. He submits that the constituent powers are exercised when the text of the Constitution is amended by way of addition, variation or repeal of any provision of the Constitution.

107. He points out, in his interesting argument, that sub-section (1) of section 6 of the Amendment Act did not amend any provision of the Constitution and as such section 6 is not enacted by Parliament under its constituent power under article 368 of the Constitution.

108. As I have already held that section 6 does not apply to the U.P Sales Tax Act, 1948, and the notifications issued thereunder, I need not decide on the correctness or otherwise of this argument.

109. In the end, I would like to express my great appreciation of the way in which Sri. S.O.P Agrawal, Sri Bharatji Agrawal and Sri J.C Bhardwaj have argued and placed the case on behalf of the assessees with great ability and persuasiveness as also of Sri A.P Misra, the learned standing counsel, who represented the Commissioner of Sales Tax, who has argued the case with great ability.

110. Now coming to the individual cases, I find that in Sales Tax Revision No. 350 of 1982 the order of remand made by the Assistant Commissioner (Judicial) has been upheld by the Tribunal because it held that the facts necessary to be proved by the assessee so that he could get the benefit of Northern India Caterers (India) Ltd., [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591 required further investigation by the assessing authority.

111. When the last court of fact, i.e the Tribunal, found that the circumstances of the case required further investigation, this Court cannot substitute its judgment and record a finding in its place. The order of remand, therefore, calls for no interference.

112. The revision is accordingly dismissed. There will be, however, no order as to costs.

113. In Sales Tax Revision No. 398 of 1982, the Tribunal was not prepared to give the benefit of the decision of the Supreme Court in the case of Northern India Caterers (India) Ltd.'s case, [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591. The Tribunal found that there was no evidence to show that the customers could not take away the food served to them from the premises of the assessee. In view of these findings the assessee could not be given any benefit of the decision of the Supreme Court in the case of Northern India Caterers (India) Ltd.'s case, [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591.

114. The assessee did not maintain any account and the turnover and the tax liability had to be estimated. I do not find any such defect in determination of the turnover that would call for interference in revision.

115. In the result, the revision is accordingly dismissed. There will, however, be no order as to costs. In Sales Tax Revisions Nos. 423 and 424 of 1982, the Tribunal found that the assessee was entitled to the benefit of the Northern India Caterers (India) Ltd.'s case, [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1978 SC 1591 in respect of a part of his turnover. Northern India Caterers (India) Ltd.'s case, [1978] 42 STC 386 (SC) : (1978) 4 SCC 36 : AIR 1973 SC 1591 covers the case of the assessee. The Commissioner cannot get the benefit of section 6 of the Amendment Act.

116. The revisions are accordingly dismissed. There will, however, be no order as to costs.