THE HON’BLE SRI JUSTICE P.SAM KOSHY AND THE HON’BLE SRI JUSTICE SUDDALA CHALAPATHI RAO W.P.No.1333 of 2008 O R D E R: (Per the Hon’ble Sri Justice Suddala Chalapathi Rao)

The present Writ Petition is filed to declare G.O.Ms. No. 1422 Revenue, dt.08.11.2007 as ultravires, unconstitutional, violative of the Articles 14, 19 and 300 of the Constitution of India and strike down the same to the extent of it being retrospective operation.

2. We have heard Sri T.Srinivasulu, learned counsel for the petitioner and Sri T.Chaitanya Kiran, learned Assistant Government Pleader representing learned Special Government Pleader for State Tax appearing for respondent-State, and perused the record.

3. The brief facts of the case are that, the petitioner is a registered VAT Dealer on the Rolls of CTO, Maharajgunj Circle and is dealing in Chewing tobacco(Miraj); that the Government of A.P., issued G.O.Ms.No.933, dt.03.07.2007, amending Entry 47 of the I Schedule to the APVAT Act, by which the petitioner has to pay tax from 06.07.2007; that another amendment was issued to the said GO vide G.O.Ms.No.1129, dt.22.08.2017 by changing the effective date as “01.09.2007”; that subsequently another G.O.Ms.No.1148, dt.30.08.2007 was issued by changing the date as “date to be notified by the Government”, due to which, the petitioner and others stopped collecting taxes from the customers for the said period; that strangely the Government has issued G.O.Ms.No.1422, dt.08.11.2007, restoring the effective date of “01.09.2007” as per G.O.Ms.No.1129, dt.22.08.2017, and issued demands to the petitioner and other similarly placed dealers, for payment of taxes; and that the petitioner was directed to pay tax from September, 2007 to November, 2007 in a sum of Rs.5,47,842/- vide assessment order, dt.12.01.2008 vide Proc.No.02TIN/GRN28800106221, in pursuance of G.O.Ms.No.1129, dt.22.08.2007.

4. It is contended by the learned counsel for the petitioner that as the effective date in G.O.Ms.No.1129, dt.22.08.2007 was kept in abeyance vide G.O.Ms.No.1148, dt.30.08.2007, the dealers have not collected the tax from the customers so as to pay to the Government; and that the action of the Government in issuing another G.O.Ms.No.1422, dt.08.11.2007, by restoring the effective date as ‘01.09.2007’ with retrospective effect, is nothing but unreasonable and unjustified, as the government orders cannot be given with retrospective effect. As such, the G.O.Ms.No.1422, dt.08.11.2007, is ultra-vires, unconstitutional and is liable to be struck down as it being issued with retrospective effect.

5. The learned counsel for the petitioner has also placed reliance on the judgment of the Hon’ble Supreme Court in the case of State Of U.P. And Ors vs Deepak Fertilizers & Petrochemical Corporation Ltd., (2007) 10 SCC 342 at para No.9 and 10, which reads as under:

“9. ………. After taking into consideration, the notifications dated

2^nd November, 1994 and 10^th April, 1995 we have no hesitation in our mind to hold that the High Court was fully justified in holding that exemption granted to the respondent by the notification dated 2nd November, 1994 could not be withdrawn by a subsequent notification with retrospective effect. In this connection, we may rely on Section 25 of the Act itself, which runs as under:

" Power to issue notification with retrospective effect:

Where the State Government is satisfied that it is necessary so to do in the public interest, it may issue a notification under Section 3-A or Section 3-D, or Section 4 or Section 4-B so as to make if effective from a date not earlier than six months from the date of issuance of such notification:

Provided that no notification having the effect of increasing the liability to tax of dealer shall be issued with retrospective effect under this section." (Underlining is ours)

10. For this aspect, proviso to Section 25 of the Act is important. A bare perusal of the proviso to Section 25 of the Act would clearly show that no notification having the effec