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The Guntur District Co-operative Marketing Society Ltd. Vs. the State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petition No. 1207 of 1964
Judge
Reported in[1967]20STC476(AP)
AppellantThe Guntur District Co-operative Marketing Society Ltd.
RespondentThe State of Andhra Pradesh and anr.
Appellant Advocate G. Suryanarayana, Adv.
Respondent Advocate O. Adinarayana Reddy, Adv. for Principal Government Pleader
DispositionPetition dismissed
Excerpt:
.....apart from the vested rights acquired by the landlords in these cases, by application of section 6(c) and (e) of the general clauses act, 1897 and section 8(d) and (f) of the a.p. general clauses act, 1891, the landlords have got acquired or accrued right to continue the proceedings despite the coming into force of the amended provision. - when the legislature fixes a date and clearly expresses its intention that the act shall come into force from that date, it is immaterial whether the bill after having passed from the houses receives the assent of the governor or the president, as the case may be, prior to such date or subsequent to it. the word 'retrospective' although is somewhat ambiguous, its meaning and implication are generally now well-accepted. what must follow from it is..........14 of the constitution of india and also on the ground that the act would be deemed to have come into force only on 26th september, 1963, when it was published in the official gazette and in any case not earlier than 22nd september, 1963, when it received the assent of the president of india. the contention, therefore, is that the petitioner cannot be asked to pay sales tax on the transactions effected by him between 1st august, 1963 and 26th september, 1963, or in any case between 1st august, 1963 and 22nd september, 1963.4. the petition is resisted by the respondents on the ground that the act has come into force from 1st august, 1963, and, as the petitioner falls within the ambit of section 5-a which is a valid provision, he is liable to pay sales tax on all the transactions.....
Judgment:
ORDER

Gopal Rao Ekbote, J.

1. This is a petition under Article 226 of the Constitution of India seeking the issue of a writ of mandamus directing the respondents, the State of Andhra Pradesh and the Additional Commercial Tax Officer, Guntur, to forbear from enforcing the provisions of Section 5-A of the Andhra Pradesh General Sales Tax Act (6 of 1957). It arises in the following circumstances :

The petitioner is the' Guntur District Co-operative Marketing Society Ltd., having its registered office at Guntur. The principal business of the society is the distribution of chemical fertilisers to various co-operative societies in that district.

2. The petitioner had been paying the sales tax under the provisions of the Madras General Sales Tax Act, 1939, and the rules framed thereunder, in respect of the sales conducted by him in favour of the various co-operative societies.

3. While so, the Andhra Pradesh General Sales Tax (Amendment) Act, 1963, was passed and received the assent of the President on 22nd September, 1963, and was published in the said Gazette on 26th September, 1963. It is contended, that under Section 5-A of the Amendment Act, the petitioner shall have to pay additional tax at the rate of one fourth naya paisa on every rupee of his turnover as his total turnover exceeds rupees three lakhs. He has challenged the validity of Section 5-A on the ground that it is violative of Article 14 of the Constitution of India and also on the ground that the Act would be deemed to have come into force only on 26th September, 1963, when it was published in the Official Gazette and in any case not earlier than 22nd September, 1963, when it received the assent of the President of India. The contention, therefore, is that the petitioner cannot be asked to pay sales tax on the transactions effected by him between 1st August, 1963 and 26th September, 1963, or in any case between 1st August, 1963 and 22nd September, 1963.

4. The petition is resisted by the respondents on the ground that the Act has come into force from 1st August, 1963, and, as the petitioner falls within the ambit of Section 5-A which is a valid provision, he is liable to pay sales tax on all the transactions effected by him from 1st August, 1963, onwards.

5. Two contentions are raised before me in this writ petition by Shri G. Suryanarayana, the learned counsel for the petitioner. It was firstly argued that the Legislature did not want to give retrospective effect to the Amending Act 16 of 1963. It should, therefore, be held that in spite of Section 1 of the Amending Act, the Act came into force only from the date when it was published in the Official Gazette on 26th September, 1963. In support of this contention, reliance was placed on Maxwell on the Interpretation of Statutes (Tenth Edition), page 409, and Halsbury's Laws of England (3rd Edition), Volume 36, at page 420, foot-note 'm'.

6. Section 1 of the Amending Act states that the Act shall come into force on the 1st August, 1963. It is not known as to when actually the Legislative Assembly and the Legislative Council passed the Amending Bill. If these Houses passed the Bill subsequent to 1st August, 1963, it is conceded that the contention raised before me will have no foundation. Assuming however that the Bill was passed by both the Houses before 1st August, 1963, I do not think it helps in any manner the position as to when the Amending Act, after receiving the assent of the Governor or the President, shall come into force. It is true that normally any enactment whether involving financial burden or not is prospective unless there is either an express provision or the intention of the Legislature is necessarily gathered from the purview of the Act that the Act was intended to be retrospective. When the Legislature fixes a date and clearly expresses its intention that the Act shall come into force from that date, it is immaterial whether the Bill after having passed from the Houses receives the assent of the Governor or the President, as the case may be, prior to such date or subsequent to it. In either case, the intention being express and manifest, the Act shall come into force on that date. There is little warrant for argument that, since the Legislature passed the Bill long prior to 1st August, 1963, it should be assumed that the Legislature thought that the Bill would receive the assent of the Governor or the President before 1st August, 1963, and since, in fact, the assent of the President was received only after 1st August, 1963, that is to say on 22nd September, 1963, it should be presumed that, in spite of Section 1(2) of the Amending Act, the intention of the Legislature was to bring the Act into force only from the date when it is officially published in the Gazette. Section 5 of the General Clauses Act leaves no one in doubt that, whenever a specific date is fixed by the Legislature on which it intended any Act to come into force, the Act would be deemed to have come into force on that date. It is only in case where the Legislature does not prescribe any date for the commencement of the Act that Section 5 lays down that the Act shall come into force only on the date when it receives the assent of the Governor or the President and is published in the Official Gazette. In this case, when the Amending Act gives a date as to when the Bill comes into force, the other alternative does not arise.

7. It is true that the following observation appears at page 409 in Interpretation of Statutes by Maxwell (10th Edition):-

But where a particular day is named for its commencement, but the Royal assent is not given until a later day, the Act would come into operation only on the later day.

8. But, that observation is based on the decision in Burn v. Carvallo 4 Nev. and M. 893. That decision is not available. It is therefore, difficult to know the language of the enactment involved in that case and what were the facts of that particular case. To the similar effect is the observation based on the same English case in Halsbury's Laws of England (3rd Edition), Volume 36, at page 420, relied upon by the learned counsel for the petitioner. In the face of Section 5 of the General Clauses Act, it is difficult to hold that the Amending Act did not come into force on 1st August, 1963, but it came into force only on 26th September, 1963. It may be that, unless the Bill is passed by both the Houses and receives the assent of the Governor or the President, the law will not be deemed to have been enacted but, in this case, although the assent may have been received on 22nd September, 1963, and published on 26th September, 1963, it has the retrospective effect because the Legislature wanted it to commence from 1st August, 1963. It is not necessary that the Legislature should indicate in so many words that they intended to make any provision retrospective. The word 'retrospective' although is somewhat ambiguous, its meaning and implication are generally now well-accepted. It is clear that it depends upon the language of a given statute that it has to be decided whether the law is retrospective or prospective. The following passage from Halsbury's Laws of England (Volume 36), at page 423, is pertinent:-

In general, however, the Courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only, the character or consequences of transactions previously entered into or of other past conduct.

9. Although the assent was received on 22nd September, 1963, the Act came into force only on 1st August, 1963, and to that extent, it is manifestly clear from Section 1(2) that it is made retrospective. It is not disputed that the State Legislature was competent to amend the General Sales Tax Act in the manner in which it did. What must follow from it is that it was competent to enact both prospectively as well as retrospectively. I do not, therefore, experience any difficulty in rejecting this contention.

10. It was then contended that since the law received the assent of the President and was published only on 26th September, 1963, the petitioner did not collect and could not have collected sales tax on those transactions effected from 1st August, 1963 to 26th September, 1963. He has, therefore, to pay the additional sales tax from his income. The contention, therefore, is that such a levy of the tax is bad in law and is outside the competence of the State Legislature. I do not think that I can give any effect to this argument. The same argument was advanced before the Supreme Court in Tata Iron and Steel Co. v. State of Bihar A.I.R. 1958 S.C. 452 and was rejected. It is clear that, although the petitioner is permitted under the provisions of the law to collect sales tax, which he pays, from his buyer, it is not obligatory on him nor it is obligatory on the purchaser to pay the sales tax. The sales tax, thus, need not be passed on to the purchaser. In any case, it does not alter the nature of the tax which, by express provisions of the law, has to be paid by the seller. Merely because the petitioner has not collected or could not have collected the sales tax during that period, it does not make the tax any the less a sales tax or make it invalid in law.

11. The final contention was that the classification made by Section 5-A of the Amending Act is arbitrary and is, therefore, violative of Article 14 of the Constitution. This very argument was raised before a Bench of this Court in Kadiyala Chandrayya v. State of Andhra [1957] 8 S.T.C. 33. This Court rejected that contention. It is not, therefore, necessary to elaborate the point here.

12. For all the reasons, the writ petition fails and it is accordingly dismissed. In the circumstances of the case, I make no order as to costs. Government Pleader's fee Rs. 100.


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