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Gopaldas Khimji Trading Company Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 302 of 1966
Judge
Reported in1970MPLJ570; [1970]26STC575(MP)
AppellantGopaldas Khimji Trading Company
RespondentCommissioner of Sales Tax
Appellant AdvocateV.S. Pandit, Adv.
Respondent AdvocateK.P. Munshi, Government Adv.
Cases ReferredIn Firm Jagmohandas Vijaykumar v. The Additional Assistant Commissioner of Sales Tax A.I.R.
Excerpt:
- - it was, however, repealed by the new act which came into force on 1st april, 1959. that turnover was actually assessed to tax on 18th december, 1962, though, as found by the tribunal, the lis had arisen on 11th april, 1958, when a notice was issued to the applicant to show cause why, for its failure to submit returns for the period, a best judgment assessment should not be made and a penalty be not levied. these provisions clearly created rights as well as liabilities of dealers......of the repealed act in respect of turnover of sales effected during the time when that act was in force. the repealed act laid down what turnover was taxable, how it was to be computed and at what rate the tax was to be charged.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 dealers. those rights and liabilities were thus preserved by section 52 of the new act.' (page 90).it follows that, when the madhya bharat sales tax act did not provide for a second appeal, the tribunal rightly regarded the second appeal as incompetent.4. since this position has been somewhat altered by legislation, but not so as to confer on the assessee a right of second appeal, it is necessary to notice it if only to make a correct statement of the law bearing on the point. in firm jagmohandas.....
Judgment:

K.L. Pandey, J.

1. At the instance of the assessee, the Sales Tax Tribunal has, acting under Section 44(1) of the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter called the new Act) referred to this court for its opinion the following question of law :

Whether, in the facts and the circumstances of this case, the applicant had the right to file a second appeal before the Tribunal under the provisions of the M. P. General Sales Tax Act, 1958

2. The material facts giving rise to this reference lie within a narrow compass and may be shortly stated. The applicant is a registered dealer which carries on business at Ujjain. The relevant turnover of sales made by the applicant related to the period 1st April, 1957 to 31st March, 1958. During that period, the Madhya Bharat Sales Tax Act, Satnvat 2007, was in force. It was, however, repealed by the new Act which came into force on 1st April, 1959. That turnover was actually assessed to tax on 18th December, 1962, though, as found by the Tribunal, the lis had arisen on 11th April, 1958, when a notice was issued to the applicant to show cause why, for its failure to submit returns for the period, a best judgment assessment should not be made and a penalty be not levied. Against the order of assessment dated 18th December, 1962, there was a first appeal which was dismissed by the Deputy Commissioner on 30th June, 1964. Thereafter, the applicant preferred a second appeal to the Tribunal which, on 31st December, 1965, rejected it as incompetent on the view that the lis had arisen before the new Act (which provided for two appeals) came into force, that the case was governed by the Madhya Bharat Sales Tax Act and that that Act provided for only one appeal. Subsequently, at the instance of the applicant, this reference was made.

3. Having heard the counsel, we have formed the opinion that the question referred to us must be answered in the negative. It was argued that, before the order of assessment had become final, the new Act came into force and, since it enlarged the right to go up in appeal before the superior sales tax authorities by providing for a second appeal, the assessee was entitled to avail of it. In support of this contention, reliance was placed upon Indira Sohanlal v. Custodian of Evacuee Property A.I.R. 1956 S.C. 77 and Moii Ram v. Suraj Bhan A.I.R. 1960 S.C. 655. These two authorities do not relate to tax matters and'proceed on the general principle that, unless otherwise provided, the law amended during the pendency of the proceedings in so far as it did not affect vested rights applied to them even though they had been initiated prior to the amendment. The present case was, however, governed by a contrary provision in the new Act itself, namely, the proviso to Section 52(1), which preserved unaffected by that Act the right or liability to be assessed in accordance with the provisions of the repealed Acts in respect of turnovers of sales effected during the time when the latter were in force. So, in Sales Tax Officer v. Hanuman Prasad [1967] 19S.T.C. 87 (S.C), the Supreme Court stated :

The mere enforcement of that Act by the time the order of assessment was passed by the Sales Tax Officer cannot lead to the conclusion that the assessment of the respondent was made under the new Act and ot under the repealed Act. It was under Section 52 of the new Act that the repealed Act was repealed and that Section itself, under the proviso laid down that such repeal shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder. There was also the further addition that 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 Act shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in 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. In view of this proviso it has to be held that when this new Act came into force on 1st April, 1959, all rights, title, obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained unaffected and intact. 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 dealers. Those rights and liabilities were thus preserved by Section 52 of the new Act.' (page 90).

It follows that, when the Madhya Bharat Sales Tax Act did not provide for a second appeal, the Tribunal rightly regarded the second appeal as incompetent.

4. Since this position has been somewhat altered by legislation, but not so as to confer on the assessee a right of second appeal, it is necessary to notice it if only to make a correct statement of the law bearing on the point. In Firm Jagmohandas Vijaykumar v. The Additional Assistant Commissioner of Sales Tax A.I.R. 1956 S.C. 77 and other Division Bench cases decided on 31st March, 1964, this court held that the limitation of 3 years prescribed for reassessment under Section 10 of the Madhya Bharat Sales Tax Act, 1950, applied to assessments under Section 8 of that Act. The result of this view taken in these cases was that a large number of assessments already made and numerous proceedings initiated, beyond 3 years were invalidated. The State Legislature intervened, amended : the law with retrospective effect and in conformity therewith validated those assessments and the initiation of proceedings. A new Section 18-A was inserted by Act 20 of 1964. It reads:

18-A. (1) Where a dealer was registered or licensed under any of the Acts repealed by Section 52 and has not been assessed to tax for any period prior to the commencement of this Act, then notwithstanding-.

(i) any judgment, decree or order of any court, Tribunal or any other competent authority to the effect that the turnover for that period (1) Miscellaneous Petition No. 37 of 1963 decided on 31st March, 1964. cannot be assessed to tax on the ground that the assessment has not been made within the period, prescribed therefor under the relevant provisions of the relevant repealed Act; or

(ii) anything contained in Section 19 of this Act or in the relevant repealed Act;

he shall within five years from the date of the commencement of the Madhya Pradesh General Sales Tax (Second Amendment) Act, 1964, be assessed to tax for that period.

(2) Where, before the commencement of this Act, a proceeding for assessment had been initiated or an assessment had been made, for any period prior to such commencement, in respect of a dealer registered or licensed under any of the Acts repealed by Section 52, then notwithstanding any judgment, decree or order of any Court, Tribunal or any other competent authority, such proceeding or assessment shall be and shall always be deemed to have been validly initiated or made, notwithstanding that the period laid down for initiation or assessment had already expired and such proceeding or assessment shall not be called in question in any Court or Tribunal, or before any other authority merely on that ground.

5. It is plain from Section 18-A ibid that five years further time from the commencement of Act 20 of 1964 was allowed for all assessment of turnovers covered by the repealed Act, which had not already been subjected to tax when the new Act came into force. In that context, Section 52(1) of the new Act, as originally enacted, which merely preserved the rights and liabilities under the repealed Acts, including the limitation prescribed therein, was rendered inappropriate and had to be conformably amended. Therefore, by Act 23 of 1967, a new Sub-section (1-a) was inserted in Section 52 and given retrospectivity to the same extent as Section 18-A ibid. The new Sub-section (1-a) reads :

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 condition that the period prescribed therefor under the relevant provisions of the relevant repealed Acts 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).

6. It will be readily seen that the assessment made in this case on 18th December, 1962, which had been rendered invalid according to the view taken in the case of Firm Jagmohandas Vijaykumar Miscellaneous Petition No. 37 of 1963 decided on 31st March, 1964 was validated by Section 18-A of the new Act and, in view of Sub-section (1-a) of Section 52 of that Act, it is governed, subject only to one exception which is here not relevant, by the repealed Madhya Bharat Act as if the new Act had not been passed. It is also now conceded by the learned counsel for the.assessee and the Government Advocate that this is so. It follows that there was in this case no right of second appeal.

7. We have answered this reference on the assumption that it was validly made. As we have already indicated, a second appeal itself was incompetent and any order passed in such appeal could not be the basis of a valid reference.

8. We direct the assessee to pay all costs of this reference. Hearing fee Rs. 100.


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