# Angalla Padmalatha v. A. Sudershan

- **Citation:** (2001) 1 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/angalla-padmalatha-v-a-sudershan-38978
- **Pages:** 5

## Text

102 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
that she is prepared to go and live with
her husband.

15.
On
considering
the
entire
evidence, we do not find there is any
material
evidence
to
come
to
the
conclusion that the wife had treated the
husband with cruelty.

16.

Learned counsel for the
respondent has placed reliance on the
decision in the case of Parag Mittal Vs.
Smt. Vikita Mittal (AIR 2000 Delhi 304)
wherein the court has held that when the
wife remained absent in the proceedings
before trial court and signed petition for
divorce by mutual consent, the allegation
of husband of cruelty by wife against him
should be accepted. In the case of
Angalla Padmalatha Vs. A. Sudershan
Rao (AIR Andhra Pradesh 353) it was
found that when the parties lived together
for short time and thereafter the wife left
her matrimonial house of her own without
his consent and the husband made efforts
to bring her back but she did not return,
and more so wife filed petition under
section 498-A IPC and Section 125
Cr.P.C., indicated that the wife had
decided to abandon matrimonial house
permanently.
These
cases
have
no
application to the facts of the present case
as discussed above, in the present case the
appellant has not left the matrimonial
house voluntarily. She was forced to leave
the house by her husband and she always
expressed her willingness to reside with
her husband.

17. In view of above discussion, the
appeal is allowed with cost and the decree
of the Family Court dated 27.10.1997
passed in O.S. No. 410 of 1996/Family
Court Case No. 621 of 1997 is set aside.

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1All] M/s Hira Lal Ayodhya Prasad V. State of U.P. & another
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By the Court

1. The petitioner, M/s Hira Lal
Ayodhya Prasad, through its partner Sri
Satya Narain, has filed the present
petition under Article 226/227 of the
Constitution of India, seeking a writ of
certiorari quashing the notice of demand
dated 30.3.1982 issued by the Sales Tax
Officer, Saharanpur, respondent no. 2
contained in annexure 6 to the writ
petition and the assessment order dated
30.3.1982 passed by the respondent no. 2
contained in annexure 5 to the writ
petition. The petitioner has also sought a
writ of mandamus commanding the
opposite parties not to realize a sum of
Rs.39,272.62 and interest @ 2% per
month on the said amount from May,
1979.

2. The facts giving rise to the
present petition are that the petitioner is a
partnership firm and is a registered dealer
under the provision of the U.P. Trade Tax
Act (hereinafter referred to as the Act). It
acts as commission agent and deals in
Khandsari Sugar. It may be mentioned
here that Khandsari Sugar on which the
excise duty and additional excise duty has
not been paid is liable to tax at the point
of first purchase. For the assessment year
1978-79, the petitioner had filed its return
showing the taxable purchase on non-duty
paid Khandsari Sugar at Rs.12,41,473/-
during the period 1.4.1978 to 31.12.1978.
The petitioner had admitted and deposited
the tax @ 4% at turnover of such
Khandsari Sugar. However, for the period
1.1.1979 to 31.3.1979, the petitioner had
filed its return showing the turnover of
non-duty
paid
Khandsari
at
on
Rs.19,63,603.66. The petitioner realized
and deposited tax @ 4% on the said
turnover.
The
sales
Tax
Officer,
respondent no. 2 passed the assessment
order for the assessment year 1978-79, the
respondent no. 2 found that the petitioner
had deposited a sum of Rs.42,485.30 as
tax in excess during the period 1.1.1979
to 31.3.1979 on the disclosed turnover as
rate of tax on non duty paid Khandsari
Sugar was only 2% and not 4%. The
excess amount was forfeited by invoking
Section 15-A(1)(qq) of the Act.

3. It appears that the State
Government had reduced the rate of tax
on non duty paid Khandsari Sugar from
4% to 2% retrospectively with effect from
1.1.1979 vide Notification No. 51-II3846/X-6(1)-79
dated
30.6.1979.
Consequent upon retrospective reduction
of tax on non-duty paid Khandsari the
Commissioner of Sales Tax U.P. had
issued a circular on 6.8.1979., copy
whereof has been filed as annexure 2 to
the writ petition, wherein all the Sales Tax
Officers of the State had been directed
that if any dealer makes an application
claiming adjustment of the excess amount
of purchase tax deposited by him on the
104 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
turnover of purchases of Khandsari Sugar
towards the tax due for the future period
or makes such claim of refund/adjustment
in the quarterly return then such claim of
adjustment
should
be
allowed.
The
petitioner
accordingly
made
an
application for adjustment of the excess
amount of Rs.39,405.29 deposited by it as
purchase tax for the assessment year
1978-79 towards the payment of purchase
tax due for the second and third quarter of
the assessment year 1979-80. According
to the petitioner, instead of adjusting the
said amount, the respondent no. 2 had
issued notice under section 15-A(1) (qq)
of the Act for forfeiting the excess
amount of Rs.39,272.62 as the said
amount
had
been
realized
by
the
petitioner from its customers. Thereafter,
the respondent no. 2 vide order dated
31.12.1980 had forfeited the excess
amount of Rs.39,272.62 under section 15A (1) (qq) of the Act. It may be
mentioned here that the petitioner had
challenged the order dated 31.12.1980
passed under Section 15-A (1) (qq) of the
Act in Civil Misc. Writ Petition No. 269
(Tax) of 1981 which had been dismissed
by this Court vide judgement and order
dated 8.5.1996.

4. According to the petitioner, the
respondent no. 2, while passing the
assessment order for the assessment year
1979-80 had accepted its books of
accounts. However, he did not accept the
claim of adjustment of Rs.39,272.62
towards the tax due for the assessment
year 1979-80. Thus the demand of
Rs.39,272.62 was raised and vide order
dated 30.3.1982 the notice of demand was
also issued to the petitioner calling upon it
to pay the said amount alongwith interest
@2% per annum w.e.f. 1.7.1979 which
have been impugned in the present writ
petition.

5. We have heard Sri K.M.L. Hajela,
learned counsel for the petitioner, and Sri
Haidar Hussain, learned Standing Counsel
for the respondents.

6. The learned counsel for the
petitioner submitted that the provisions of
section 29-A of the Act having been
declared ultravires and unconstitutional
by Hon. Supreme Court in the case of
State of U.P. and another vs. M/s
Annupurna
Biscuits
Manufacturing
Company (1974)3 SCC 121, the amount
of tax realized by the petitioner which
was found to be in excess of tax due could
not have been forfeited and, therefore, the
petitioner was entitled for its adjustment.

7. The submission of the learned
counsel for the petitioner is not correct.
The Hon. Supreme Court in the case of
Asstt. Commissioner (Judicial) Sales Tax
and others vs. Kheriya Brothers and
another reported in (1999) 8 SCC 137,
had held as follows, the case of Annpurna
Biscuits (Supra) was based on earlier
decision of this Court in R. Abdul Quader
and Company Vs. Sales Tax Officer (AIR
1964 SC 922) and Ashok Marketing Ltd.
vs. State of Bihar (1970)1 SCC 354).

8. While so, in R.S. Joshi Vs. Ajit
Mills Ltd. (1977) 4 SCC 98) a seven
Judge Bench of this Court overruled
Ashok
Marketing
Ltd.
case.
The
consequent result of such overruling was
that Annpurana Biscuit Mgf Co decision
got protanto overuled. Later in Kasturi
Lal Hari Lal Vs. State of U.P. 1986 4
(SCC 704) the overruling of Ashok
Marketing case has specifically been
noticed but some how there is no
1All] M/s Hira Lal Ayodhya Prasad V. State of U.P. & another
105
advertence to Annapurna Biscuit Mfg. Co
case. This incidence by itself can by no
means
by
allowed
to
gather
the
impression that Annapurna Biscuit Mfg.
Co case is still surviving" (Citations of the
case law referred supplied by us). Thus
the decision in the case of Annpurna
Biscuit Mfg. Co has been held to be
overruled and no advantage can be
derived by the petitioner there from.

9. The learned counsel for the
petitioner then submitted that no penalty
under Section 15-A(1)(qq) of the Act
could have been imposed upon the
petitioner as it had realized the tax @4%
from its customers and had deposited the
same also with the assessing authority
alongwith its return. He relied upon the
decision of this Court rendered in the case
of
Kalu
Ram
Ragunath
Das
Vs.
Commissioner of Sales Tax reported in
1995 UPTC 403 wherein this Court had
held that a direct and unequivocal
realization of sales tax is not prohibited
by Section 8-A(2) and where having
realized the tax which was paid to the
Government, the provisions of section 15A(1)(qq) would not justify the levy of
penalty. It is not necessary to go into the
question as to whether the penalty under
section 15-A(1)(qq) of the act has been
validly imposed or not in as much as the
petitioner had specifically challenged the
order
imposing
the
penalty
under
aforesaid section in civil misc. writ
petition no. 269(Tax) of 1981 which had
been dismissed by this Court on 8.5.1996.
Thus, the issue of levy of penalty cannot
be reagitated or reopened in the present
proceedings.

10. The learned counsel for the
petitioner then submitted that in view of
the circular dated 6.8.1979 issued by the
Commissioner of Sales Tax, it was
obligatory on the part of the respondent
no. 2 to grant refund adjustment of the
excess tax of Rs.39,272.62 towards the
tax due for the second the third quarters of
the assessment year 1979-80. He further
submitted that the circular issued by the
Commissioner of Sales Tax is binding
upon all the authorities as has been held
by this Court in the case of Raghunath
Laxmi Narain Spices Pvt. Ltd. Varanasi
vs. State of U.P. and others reported in
2000 UPTC 554. This Court in the
aforesaid case has held that the circular
issued by the Commissioner, even if it is
held to be binding on the authorities does
not
direct
the
authorities
to
grant
refund/adjustment of excess tax where the
tax has been realized by the dealer from
its customers. Further, so long as the
order dated 31.12.1980 imposing the
penalty under section 15A(1)(qq) of the
Act wherein the excess amount of tax
realized by the petitioner during the
period 1.1.1979 to 31.3.1979 had been
forfeited stands there is no question of
granting any adjustment or refund to the
petitioner. The learned counsel for the
petitioner did not dispute that its earlier
writ petition no. 269 (Tax) of 1981 in
which
the
order
dated
31.12.1980
forfeiting the amount of excess tax is not
set aside there is no question of any
adjustment/refund of the excess amount
of tax. So far as the circular dated
6.8.1979 issued by the Commissioner of
Sales Tax is concerned, we find that the
said circular does not specifically direct
for the refund/adjustment of the tax
realized by the dealer from its customers.
There may be a case where a dealer may
have deposited the tax from its own
pocket without realizing the same from its
customers. The circular covers such a
case and not where the dealer has realized
106 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
the tax from its customers. Thus the
petitioner cannot get the benefit of the
circular.

11. No other point has been pressed.
In view of the aforesaid discussions, we
find no merit in the submissions made by
the learned counsel for the petitioner and
the writ petition is dismissed. However,
the parties shall bear their own costs.

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By the Court

1. The petitioner seeks writ of
certiorari
quashing
the
order
dated
9.8.2000 passed by the Vice Chancellor
appointing Dr. Sunil Jain, respondent no4,
as Professor in Zoology department of Dr.
Bheem Rao Ambedkar University, Agra
(hereinafter referred to as the University)
and further a writ of mandamus
restraining

the
respondents
from
interfering with his functioning as Head
of the Zoology Department.

2. The claim of the petitioner is
based on the fact that he was appointed as
Reader in the University on 21.09.1987.
He was confirmed on the said post on