1. This is a case stated by the Sales Tax Appellate Tribunal (Board of Revenue) under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958 referring for our answer the following question of law:--
'Whether on the facts and circumstances of the case the Commissioner of Sales Tax acted illegally in exercising his powers of revision under Section 39 (2) of the Madhya Pradesh General Sales Tax Act, 1958 in respect of the assessment order dated 28-11-1961 which was passed in respect of the returns submitted on 30-1-1958 and 17-6-1958 and on the basis of the notice in form XI issued on 29-8-1961?'
2. The case relates to the assessment of the dealer M/s. Amarnath Ajit Kumar of Bhind for Central Sales Tax for the period 1st July, 1957 to 31st March, 1958. The dealer filed returns for the second and the third quarters on 30th January, 1958 and for the fourth quarter on 17th June, 1958. These returns were filed under Section 9(3) of the Central Sales Tax Act, 1956 read with the Madhya Bharat Sales Tax Act, Samvat 2007. The Madhya Bharat Act was repealed and replaced by the Madhya Pradesh General Sales Tax Act 1958 which came into force on 1st April, 1950. A notice in form No. XI of the Madhya Pradesh Sales Tax (Central) Rules, 1957 was issued to the dealer on 29th August, 1961. The assessment order was passed by the Assistant Commissioner of Sales Tax on 28th November, 1961 and the dealer was held liable to pay Rupees 1128-98 paise as Central Sales Tax. On 30th October, 1964 the Commissioner of Sales Tax initiated proceedings in revision under Section 39 (2) of the Madhya Pradesh General Sales Tax Act, 1959. After notice to the dealer the Commissioner on 15th April, 1965 revised the assessment and enhanced the dealer's liability by a sum of Rs. 993.06 P. The dealer then filed an appeal before the Tribunal which was dismissed on 20th June, 1966. Before the Commissioner as also before the Tribunal it was contended by the dealer that as the assessment related to the period when the Madhya Bharat Sales Tax Act, Samvat 2007, was in force the revision against the assessment must be governed by Section 12 (1) of that Act and not by Section 39 (2) of the Madhya Pradesh Sales Tax Act, 1958. It was pointed out that under the Madbya Bharat Act the Commissioner could not revise the order of assessment after the expiry of two years whereas under the Madhya Pradesh Act he was competent to initiate proceedings in revision till the expiry of three years. If the Madhya Bharat Act applied the order in revision made by the Commissioner was clearly bad as it was made after the expiry of two years from the order of assessment, but if the Madhya Pradesh. Act applied the order in revision was within time as the proceedings in revision were initiated within three years from the order of assessment. Both the Commissioner and the Tribunal negatived the contention of the dealer and held that it was the new Act that applied and the order in revision was within time. The dealer then applied to the Tribunal for a reference to this Court. That application was accepted and the tribunal referred to this Court the question of law which we have already set out.
3. By virtue of Section 9 of the Central Sales Tax Act, 1956, central sales tax payable by any dealer is levied and collected in a State in the same manner as the sales tax under the general sales tax law of the State. Sub-section (3) of Section 9 of the Central Sales Tax Act reads as follows:--
'The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax, including any penalty, payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any oi the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly:'
The sub-section set out above makes applicable the general sales tax law of the State for assessment, collection and enforcement of payment of central sales tax. The provisions in the State Law relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences are specifically made applicable for assessment and collection of the central sales tax. At the time when the Central Act was enacted the funeral sales tax law applicable in the area with which we are concerned was the Madbya Bharat Sales Tax Act, Samvat 2007. As stated earlier, the Madhya Bharat Act was repealed and replaced by the Madhya Pradesh General Sales Tax Act, 1958 from 1st April, 1959. It has been assumed by the Tribunal that the 'general sales tax law of the appropriate State' referred to in Section 9(3) of the Central Sales Tax Act is not limited to the general sales tax law in force at the time when the Central Act was enacted but includes all subsequent changes in that law as may be made from time to time by the State concerned. As the reference made to us proceeds on this basis and as no question on this point has been referred for our answer we also proceed with this reference by accepting the assumption made by the Tribunal. The Central Sales Tax is to be levied, assessed and collected in the same manner as the State Sales Tax, therefore, the question referred to us has to be answered on the footing as if the assessment in the instant case related to State Sales Tax.
4. If a Sales Tax Act be repealed and replaced by a new Act and if there be nothing in the new Act showing a contrary intention, the provisions of Section 10 of the Madhya Pradesh General Clauses Act, 1957 will apply and the rights and liabilities of the dealer in respect of the turnover which become liable to sales tax under the repealed Act will continue to be governed by that Act and any legal proceedings for levy, imposition and collection of that tax will have to be taken under the repealed Act. Even a proceeding for suo motu revision of assessment order in such a case will be governed by the repealed Act. This legal position is clearly brought out from the decision of the Supreme Court in Swastik Oil Mills Ltd. v. H. B. Munshi, AIR 1968 SC 843. In that case their Lordship considered the effect of repeal by the Bombay Sales Tax Act, 1959 on the Bombay Sales Tax Act, 1953 which in its turn had repealed the Bombay Sales Tax Act, 1946. The Acts of 1946 and 1953 conferred power on the Deputy Commissioner to revise an assessment suo motu to the prejudice of the assessee without any limitation as to time whereas similar power in the Act of 1959 can be exercised only within a period of five years. It was held by the Court that power of suo motu revision in respect of an assessment made for a period whea the Acts of 1946 and 1953 were in force could be exercised under those Acts even after their repeal. To quote their Lord-ships:
'Very clearly, the repeal of the Act of 1953 by the Act of 1959 did not affect the rights and liabilities of the assessee to tax under the Act of 1953 or the Act of 1946 in respect of the turnover which became liable to sales-tax under the Act of 1946. The effect of Clause (e) of Section 7 of the Bombay General Clauses Act further is that any legal proceeding in respect of levy, imposition or recovery of that tax is to continue and any fresh investigation, legal proceeding or remedy could be instituted as if there had been no repeal by the Act of 1959. Consequently, the repeal of the Act of 1953 did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu against the appellate order of the Assistant Collector which had been passed in exercise of his powers under the Act of 1946.'
On these principles if Section 10 of the Madhya Pradesh General Clauses Act, 1957 (which corresponds to Section 6 of the Central General Clauses Act and Section 7 of the Bombay General Clauses Act) had applied to the repeal of the Madhya Bharat Sales Tax Act by the Madhya Pradesh Sales Tax Act, the provision of revision contained in Section 12 of the repealed Act would have continued to apply in respect of an assessment made for the period when that Act was in force and the revision would not have been governed by Section 39 of the Madhya Pradesh Act.
5. But Section 52 of the Madhya Pradesh Sales Tax Act, 1958 which is the repealing section incorporates its own savings and thus leaves little room for application of Section 10 of the Madhya Pradesh General Clauses Act, 1957. The result, however, is not different for the savings in the form they are now contained in Section 52 are similar to those finding place in the General Clauses Act. Sub-section (1) which is the leading provision in Section 52 reads as follows:
'The Central Provinces and Berar Sales Tax Act, 1947, the Madhya Bharat Sales Tax Act, Samvat 2007, the Central Provinces and Berar Sales Tax Act, 1947, as extended to Vindhya Pradesh and Bhopal regions and as in force in those regions immediately before the commencement of this Act, and the Rajas-than Sales Tax Act, 1954, as in force in Sironj region, are hereby repealed:
Provided that such repeal shall not affect the previous operation of the said Acts 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 or licence) in the exercise of any power conferred by or under the said Acts shall, in so far as it is not inconsistent with the provisions of this Act, 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 taxes and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.'
The proviso to Sub-section (1) preserves the previous operation of the repealed Acts and any right, title, obligation or liability already acquired, accrued or incurred thereunder. The proviso was construed by the Supreme Court in Sales Tax Officer, Jabalpur v. Hanuman Prasad, 1967 MPLJ 138 = (AIR 1967 SC 565) where their Lordships observed:
'The rights and liabilities, which had been acquired or 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 laid down 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 the dealers. Those rights and liabilities were thus preserved by Section 52 of the new Act.'
The position in respect of a registered dealer as regards any period prior to the commencement of the Madhya Pradesh Sales Tax Act, 1958 has been further made clear by addition of a new Sub-section (1-a) to Section 52 by Section 10 of the Amending Act 23 of 1967. Section 14 of the Amending Act makes the insertion of Sub-section (1-a) to Section 52 of the principal Act retrospective as if it was always there from the commencement of the principal Act. Sub-section (1-a) so added reads as follows:
'(1-a) Notwithstanding anything contained in Sub-section (1) a dealer registered or licensed under any of the repealed Acts who has not been assessed to tax for any period prior to the commencement of this Act shall be assessed to tax in accordance with the provisions of the repealed Acts as if this Act has not been passed, subject however, to the conditions that the period prescribed therefor, under the relevant provisions of the relevant repealed Act shall extend till the expiry of five years from the date of commencement of the Madhya Pradesh General Sales Tax (Second Amendment) Act, 1964 (20 of 1964).'
This sub-section makes it clear that a registered dealer in respect of a period prior to the commencement of the Madhva Pradesh Sales Tax Act has to be assessed in accordance with the provisions of the relevant repealed Act as if the Madhva Pradesh Act had not been passed. The words 'as if this Act has not been passed' in Sub-section (1-a) make it quite clear that the assessment proceedings in respect of a period when a repealed Act was in force will be governed by substantive as well as remedial and procedural provisions of the repealed Act except as to time limit for assessment which has been extended.
6. Now, for answering the question referred to us we have to apply Sub-sections (1) and (1-a) of Section 52 of the Madhya Pradesh Act to the facts of the instant case. We are concerned, with a period when the Madhva Bharat Sales Tax Act Samvat 2007, one of the repealed Acts was in force. The previous operation of the Madhya Bharat Act over the period with which we are concerned gave rise to right or liability to be asses-ed in accordance with that Act in respect of that period. That right or liability is preserved by Sub-section (1) of Section 52 of the Madhya Pradesh Act and has to be worked out as directed by Sub-section (1-a) of Section 52 in accordance with the provisions of the Madhya Bharat Act as if the Madhya Pradesh Act had pot been passed. It logically follows that in respect of assessment for this period the Commissioner had to exercise his suo motu power of revision under Section 12 (1) of the Madhya Bharat Act and not under Section 39 (2) of the Madhya Pradesh Act. At the time when the Commissioner passed his order in revision the time limit of two years prescribed by Section 12 (1) of the Madhya Bharat Act had expired and he was not competent to exercise his power of revision.
7. Before concluding we must refer to a decision of a Division Bench of this Court in Commissioner of Sales Tax V. Narain Prasad. C. M. P. No. 153 of 1963, D/-5-2-1963 (MP) to which our attention has been drawn by the learned Government Advocate. In that case it was held that after the Madhya Pradesh Act came into force a revisional proceeding will be governed by Section 39 of this Act and not by the provisions of the repealed Acts. That case was decided before subsection (1-a) was added to Section 52 of the Madhya Pradesh Act. The case, therefore, cannot be taken as an authority for construing Section 52 as it now stands.
8. For the reasons stated above weanswer the question referred to us inaffirmative. There will be no order asto costs of this reference.