1. This is a petition for the issue of a writ in the nature of prohibition or any other appropriate writ or direction under Article 226 of the Constitution prohibiting the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad, from taking any further proceedings in pursuance of his notice, Board's Reference C. 854/63-1 dated 10th September, 1963.
2. The petitioner, Siddamsetty Lingaiah Gari Ramanatham, carries on trade in oil, rice mill, wool and cotton. He submitted his monthly returns for the year 1956-57 ending on 31st March, 1957, under the Hyderabad General Sales Tax Act. A few months later the Andhra Pradesh General Sales Tax Act came into force on 15th June, 1957. Thereafter on 14th March, 1958, he was given a notice. This notice did not bear reference to the rule under which it was given. An assessment order was eventually made on 17th March, 1958, which was communicated to the petitioner on 8th July, 1958. ft is common ground that the rates which were taken into consideration for assessing the petitioner were the same as found in the Hyderabad General Sales Tax Act. A few years later, the Commissioner of Commercial Taxes, in Board's Reference C. 854/63-1 dated 10th September, 1963, proposed to revise the said assessment on the ground that the turnover of Rs. 2,41,442.25 relating to cotton purchased and sold by the petitioner, which was included in the gross turnover of Rs. 40,87,237.83 was erroneously exempted from tax even though under the Hyderabad Government's Notification No. 131/Tax/83/55-56 dated 22nd February, 1956, cotton including 'kapas' was made liable to tax as from 1st April, 1956, at the rate of 6 paise in the rupee at the point of the first purchase in the State and the petitioner being the first purchaser in the State was liable for the same. The petitioner submitted his written objections on 30th October, 1963, stating that the assessment for 1956-57 being made under the provisions of the Andhra Pradesh General Sales Tax Act, the power to revise the said assessment could be exercised only within a period not exceeding four years from the date the order of assessment was served on him as expressly provided in Section 20(3) of the Andhra Pradesh General Sales Tax Act. The proceedings started therefore were barred by time. He, of course, raised further pleas, viz., that he was not the first purchaser of cotton in the State, etc., which need not be detailed here having regard to the limited scope of this proceeding.
3. Thus the only question that falls for determination is a question of limitation. It is obvious that if the power of revision in relation to such assessments was still exercisable as under Section 15 of the Hyderabad General Sales Tax Act, no question of limitation would arise but if the Repealing Act governed the exercise of such power, bar of time would be a complete answer thereto. The short point to be determined is the relevant provision of which of the two Acts governs the situation.
4. Section 15 of the Hyderabad General Sales Tax Act reads thus:
(1) The Commissioner may in his discretion call for and examine the record of any order passed or proceeding taken by any authority, officer or person under the provisions of this Act, for the purposes of satisfying himself with regard to the legality or propriety of such order or with regard to the regularity of such proceeding and may pass such order in reference thereto as he thinks fit.
(2) The powers conferred by Sub-section (1) may be exercised by the Commissioner suo motu at any time or on application preferred within six months of the passing of the order or taking of proceeding in question.
(3) No order prejudicial to the assessee shall be passed under this section unless he has been given a reasonable opportunity of being heard.
(4) Nothing contained in this section shall apply to the orders or proceedings of any Court or Magistrate.
5. Section 20 of the Andhra Pradesh General Sales Tax Act reads thus :
(1) The Board of Revenue may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including Sub-section (2) of this section, for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order in reference thereto as it thinks fit.
(2) Powers of the nature referred to in Sub-section (1) may also be exercised by the Deputy Commissioner and the Commercial Tax Officer in the case of orders passed or proceedings recorded by authorities, officers or persons subordinate to them.
(3) In relation to an order of assessment passed under this Act, the powers conferred by Sub-sections (1) and (2) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer, as may be prescribed.
6. It is manifest that whereas Section 20 specifically provides that the powers conferred by Sub-sections (1) and (2) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer, as may be prescribed, no such limit of time was prescribed in the corresponding section of the Hyderabad General Sales Tax Act, for exercise of powers of revision suo motu.
7. That being the main point of difference between the two provisions, we have to see whether the liability of the assessee to be subjected to the power of revision in relation to assessment for the period covered by the repealed. Act still remains intact, unaffected by the operation of the repealing Act. For this, we have to look to the saving clause in the repealing Act. Section 41 of the A.P.G.S.T. Act which repeals the previous Acts including the Hyderabad General Sales Tax Act, expressly provides thus :
The Madras General Sales Tax Act, 1939 (Madras Act 9 of 1939), the Hyderabad General Sales Tax Act, 1950 (Act 14 of 1950), the Madras Tobacco (Taxation of Sales and Registration) Act, 1953 (Madras Act 4 of 1953), the Andhra Pradesh General Purchase Tax Act, 1956 (Andhra Act 13 of 1956) and Section 21-A of the Madras Prohibition Act, 1937 (Madras Act 10 of 1937) are hereby repealed :
Provided that such repeal shall not affect the previous operation of the said Acts or section or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and. subject: thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit) in the exercise of any power conferred by or under the said Acts or section shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken ; and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.
(2) Notwithstanding anything contained in Sub-section (1), any application, appeal, revision or other proceeding made or preferred to any officer or authority under the said Acts or section and pending at the commencement of this Act, shall after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceeding under this Act, if it had been in force on the date on which such application, appeal, revision or other proceeding was made or preferred.
8. It is manifest that the proviso clearly protects inter alia, rights, title, obligation or liability already acquired, accrued or incurred under the repealed Act, and it is only subject thereto, that anything done or any action taken, including any notice, order etc. issued in the exorcise of any power conferred by or under the said Acts shall be deemed to have been done in the exercise of the powers conferred by or under the present Act, as if the present Act were in force on the date on which such thing was done or action was taken. Of course, it further provides that all arrears of tax and other amounts due at the commencement of the present Act, may be recovered as if they had accrued under this Act, but this last clause has reference only to taxes already assessed and found due.
9. Sri W.V.V. Sundara Rao, learned counsel for the petitioner, argues that when once the assessment has been made purporting to be made under the A.P. General Sales Tax Act, as in this case, even though it may be made according to the rules as prescribed, under the Hyderabad General Sales Tax Act and that for the period when the Hyderabad General Sales Tax Act was in force, the provisions of Section 15 of the repealed Hyderabad General Sales Tax Act will have no application but only Section 20 can be availed of with all its limitations as to time etc.
10. On the other hand, it has been contended on behalf of the respondent that since the rights accrued and liabilities incurred under the previous Act have been protected, the liability of the petitioner to be reassessed by the authority concerned in exercise of revisional jurisdiction would remain intact and would not therefore be subject to the limitation of time as prescribed under Section 20.
11. It is now for us to determine what is the true impact of the saving clause contained in Section 41 on the rights accrued and the liabilities incurred under the provisions of the previous Act. We may first examine how far the rulings relied on by Mr. W.V.V. Sundara Rao, learned counsel for the petitioner, help his case. None of the cases relied on is direct on the point involved in this case.
12. Of the two decisions of the Supreme Court cited before us, the first is Sales Tax Officer, Circle I, Jabalpur v. Hanuman Prasad A.I.R. 1967 S.C. 565. We are unable to see anything favourable to his contention in this decision. The facts of that case were as follows :-The original assessment of the respondent was in respect of a period when the new Act had not come into force. By the time the Act had come into force, the respondent has filed the return and even the notice was issued to him. The assessment order, however, was made on 23rd May, 1959, after the advent, of the new Act. On a construction of the repealing clause contained in Section 52 of the Act, which is in pari materia with the provision in question so far as rights accrued and liabilities incurred under the repealed Act are concerned their Lordships referring to the clause that such repeal shall not: affect, any right, Title, obligation or liability already acquired, accrued or incurred thereunder and subject thereto anything done or any action taken shall, in so far as it is not inconsistent with the provisions of the present law, must be deemed to have been done or taken in exercise of the powers conferred by or under the new Act, as if it were in force on the date on which such thing was done or action was taken, observed that notwithstanding the repeal, all rights, title, obligation or liability already acquired, accrued, or incurred under the repealed Act remained unaffected even after the advent of the new Act, which came into force on the 1st of April, 1959. Such rights and liabilities, as had already accrued, or were incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force. The repealed Act prescribed what turnover was taxable, how it was to be computed, and at what rate the tax was to be charged. These provisions clearly created rights as well as liabilities of dealers, and it is these rights and liabilities which were preserved by Section 52 of the new Act. Therefore, the assessment which was completed on 23rd May, 1959, was an assessment in accordance with the rights and liabilities of the respondent under the repealed Act.
13. These observations, far from helping the petitioner in this case, strengthen the case of the respondent that the rights and liabilities as to assessment in accordance with the provisions of the repealed Act, which had accrued or were incurred by the time the new Act came into force, remain unaffected. If that be so, it follows that the assessee cannot contend that his assessment shall not be subject to revision by the competent authority in accordance with the provisions of the repealed Act. It is thus clear that the assessee can be, in exercise of the revisional jurisdiction, made liable to reassessment in accordance with the provisions of the Hyderabad General Sales Tax Act.
14. The other case relied on by the learned counsel is Swastik Oil Mills Limited v. H.B. Munshi A.I.R. 1968 S.C. 843. Here again their Lordships clearly observed that the repeal of the Act would not affect the rights acquired and the liabilities incurred under the previous Act in relation to the turnover which became liable to sales tax under the then Act in force. It was further observed that the relevant section of the previous Act did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu. The learned counsel then referred us to a Bench decision of this Court in Singareni Collieries Co. Ltd. v. Commissioner of Commercial Taxes  12 S.T.C. 838, which has been overruled by the Supreme Court in Singareni Collieries Co Ltd. v. Commissioner of Commercial Taxes  17 S.T.C. 197, and also Munaga Peraiah v. State of Andhra Pradesh  13 S.T.C. 26. Reliance on the first-mentioned decision, even on the points not overruled, is of no avail, as it neither renders assistance to the case of the petitioner nor the facts of that case bear full analogy to the facts in the present case. On principle the decision goes against him. There the assessment itself was made before the advent of the Andhra Pradesh General Sales Tax Act. The point raised was that the period of four years as was contemplated by Section 20(3) was applicable for the exercise of revisional jurisdiction. This was not accepted by the learned Judges. It is, however, plain from the various decisions cited that the accrued rights and incurred liabilities under the repealed Act cannot become extinguished by reason of its repeal. It is common ground that the petitioner derived the benefit under the repealed Act in that notwithstanding the advent of the repealing Act his turnover of sales effected during the time when the repealed Act was in force was assessed according to the rates of the repealed Act. He cannot claim the benefit of the provisions of the repealed Act in so far as it is advantageous to him, and, at the same time, disown the liability of being reassessed in exercise of the powers under the revisional jurisdiction as warranted by the provisions of the repealed Act. In the present case, it is abundantly clear that the assessment proceedings had commenced before the advent of the Andhra Pradesh General Sales Tax Act (see Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax) A.I.R. 1964 S.C. 766. By the time the new Act came into force the petitioner had already submitted his monthly returns. The order of assessment was, however, made subsequently. He was assessed to the same tax as was due under the terms of the Hyderabad General Sales Tax Act. Under the terms of the same Act, a competent authority could suo motu in exercise of powers of revision reassess him at any time subject to the conditions prescribed. The petitioner cannot successfully set up the provisions of the repealing Act to evade his liability which in point of fact was in terms saved by the said Act. That being the position, this writ petition seeking for a writ of prohibition is liable to be dismissed. Of course, some other points also have been raised in this petition but they cannot come up for our consideration as the appeal in relation to them is pending. The petitioner has unnecessarily come to this Court after filing the appeal and got the appeal stayed. The writ petition is dismissed with costs. Advocate's fee Rs. 100.