RAMESH RANGANATHAN, J.

The endorsement of the respondent dated 28.05.2008, directing the petitioner to pay tax of Rs. 72,394/- pursuant to the order of the revisional authority dated 24.11.2006, is questioned in this writ petition as arbitrary, unjust and contrary to G.O.Ms. No. 144 dated 11.02.2008. Petitioner seeks a direction to the respondent to implement G.O.Ms. No. 144 and to take consequential action with regards the assessment years 2002-03 and 2003-04.

Facts, in brief, are that the petitioner is a registered dealer on the rolls of the respondent. They filed returns for the assessment years 2002-03 and 2003-04 disclosing sale and purchase of two and three wheelers as also spare parts, replacement of spare parts during the warranty period and servicing charges collected towards servicing of the vehicles. The assessment order, for the assessment year 2002-03 dated 31.12.2003, was revised by the Deputy Commissioner (CT), Eluru on 23.11.2006, tax was levied on the amounts received by the petitioner towards replacement of spare parts supplied during the warranty period for two and three wheelers, and the net tax payable on revision was determined as Rs. 72,354/-.

For the assessment year 2003-04, the respondent passed the assessment order on 10.05.2005 levying tax of Rs. 2,36,85,218/-. Aggrieved thereby, the petitioner preferred an appeal to the Appellate Deputy Commissioner who followed the judgment of the Supreme Court in Mohd. Ekram Khan and Sons v. Commissioner of Trade Tax, Uttar Pradesh ((Vol. 39) APSTJ 150) and, by order dated 04.07.2006, dismissed the appeal to the extent tax was levied on replacement of spare parts during the warranty period.

Both the orders i.e., the order of the revisional authority for the assessment year 2002-03, and the order of the appellate authority for the assessment year 2003-04, have attained finality. Petitioner would contend that, in view of the law laid down by the Supreme Court in Mohd. Ekram Khan and Sons ((Vol. 39) APSTJ 150), they were of the view that no useful purpose would be served in preferring appeals to higher forums.

While matters stood thus, the Andhra Pradesh Motor Vehicle Dealers Association submitted a representation to the Government that replacement of spare parts, during the warranty period of the vehicles which were sold, was earlier exempted from levy of tax by the assessing authorities, that the Department had later changed their view in the light of the judgment of the Supreme Court in Mohd. Ekram Khan and Sons ((Vol. 39) APSTJ 150) and had revised assessments for four years applying the said judgment retrospectively in respect of all dealers even though no tax was collected by such dealers. The Association requested the Government to levy tax prospectively.

The Government, vide G.O.Ms. No. 144 dated 11.2.2008, directed the Commissioner of Commercial Taxes to levy tax prospectively, on the supply of spare parts during the warranty period, from 21.07.2004 (i.e., the date of the judgment of the Supreme Court in Mohd. Ekram Khan and Sons ((Vol. 39) APSTJ 150)).

Sri M. V. K. Murthy, Learned Counsel for the petitioner, would contend before us that all officials in the Department of Commercial Taxes, including the respondent herein, were duty bound to implement G.O.Ms. No. 144 dated 11.02.2008. On being asked as to which statutory provision or rule the said G.O. is referable to, Learned Counsel would fairly state that, while there was no specific provision in the APGST Act, or the Rules made thereunder, the order was issued under the executive power of the government under Article 162 of the Constitution of India. Learned Counsel would contend that, since the Supreme Court had delivered its judgment in Mohd. Ekram Khan and Sons ((Vol. 39) APSTJ 150) on 21.07.2004, the law laid down therein cannot be held to have retrospective application and, as the Government had issued G.O.Ms. No. 144 dated 11.02.2008 holding that the said judgment should be applied from 21.07.2