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Commissioner of Sales Tax Vs. Saluja and Company - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number M.C.C. No. 35 of 1978
Judge
Reported in[1981]48STC526(MP)
AppellantCommissioner of Sales Tax
RespondentSaluja and Company
Appellant Advocate S.R. Joshi, Government Adv.
Respondent Advocate M.S. Chaudhry, amicus curiae
Cases Referred(see Delhi Cloth Mills v. Income
Excerpt:
.....the unamended provisions of the act were to be held applicable to the facts of the case, then the assessing authority had no jurisdiction in the instant case to reopen the assessment for the assessment year 1959-60. the short question for consideration, therefore, is whether the board was right in holding that the unamended provisions of the act were attracted in the instant case. 4. now, it is well-settled that the provisions of a statute dealing merely with matters of procedure may properly, unless that construction is textually inadmissible, have retrospective effect attributed to them and that provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively, in the absence of express enactment or necessary intendment (see delhi cloth..........that the provisions of section 19(1) of the act, as amended, empowering the commissioner to reopen assessment for any reason, are merely procedural as they deal with the machinery for collecting the tax rather than the tax itself. the contention cannot be upheld. the content of the power conferred upon the commissioner by the amended provisions of section 19(1) of the act is different from the content of the power conferred upon the commissioner by the unamended provisions of section 19(1) of the act. the amendment in question is, therefore, not merely procedural but affects the right of the assessee not to have the assessment reopened, except in cases covered by the provisions of section 19(1) of the act. according to the provisions of section 19(1) of the act, which were in.....
Judgment:

G.G. Sohani, J.

1. By this reference under Section 44 of the M.P. General Sales Tax Act, 1958, hereinafter called the Act, the Board of Revenue has referred the following question of law to this Court for its opinion :

Whether, under Section 19(1) of the M.P. General Sales Tax Act, 1958, as it was on 18th November, I960, the assessing authority could lawfully reopen the assessment of the dealer on the ground that the C forms on the basis of which concessional rate was allowed were defective

2. The material facts giving rise to this reference briefly are as follows: The assessee is a registered dealer carrying on business as a forest contractor. For the assessment year 1959-60, the assessment was framed on 16th October, 1961. While making the assessment, certain C forms were admitted by the assessing authority. Subsequently, on an audit objection in that behalf, the assessment was reopened under Section 19(1) of the Act, and a notice dated 12th May, 1964, was issued to the assessee in that behalf. The assessing authority held that the C forms were defective and consequently the assessment was revised. Aggrieved by that order, the appellant preferred an appeal before the Appellate Assistant Commissioner. It was urged before the Appellate Assistant Commissioner on behalf of the assessee that the assessment could not be reoponed under Section 19(1) of the Act. That contention was rejected by the Appellate Assistant Commissioner. On further appeal, the learned Member of the Board held that the reopening of the assessment was not justified and hence the revised order of assessment for the assessment year 1969-60 was set aside. Aggrieved by that order, the department submitted an application for making a reference, and it is at the instance of the department that the aforesaid question of law has been referred to this Court for its opinion.

3. At the time of hearing of this reference, the learned Government Advocate appearing for the department agreed that the question of law, as framed by the Board, does not bring out the real issue involved. The question referred to this Court is, therefore, refrained as follows:

Whether, under the provisions of Section 19(1) of the M. P. General Sales Tax Act, 1958, the assessing authority could lawfully reopen the assessment of the dealer for the assessment year 1959-60 on the ground that the C forms, on the basis of which concessional rates were allowed, were defective

Now, the provisions of Section 19(1) of the Act, which were in force during the assessment year 1959-60, empowered reopening of assessment in consequence of any information which came into possession of the assessing authority. The provisions of Section 19(1) of the Act were amended by Act No. 20 of 1961, which came into force on 1st June, 1961. By that amendment, in Section 19(1) of the Act the words 'if for any reason' were substituted for the words 'the Commissioner, in consequence of any information which has come into his possession, is satisfied that'. It was not disputed before us that if the unamended provisions of the Act were to be held applicable to the facts of the case, then the assessing authority had no jurisdiction in the instant case to reopen the assessment for the assessment year 1959-60. The short question for consideration, therefore, is whether the Board was right in holding that the unamended provisions of the Act were attracted in the instant case.

4. Now, it is well-settled that the provisions of a statute dealing merely with matters of procedure may properly, unless that construction is textually inadmissible, have retrospective effect attributed to them and that provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively, in the absence of express enactment or necessary intendment (see Delhi Cloth Mills v. Income-tax Commissioner A.I.R. 1927 P.C. 242). It is urged by the learned counsel for the department that the provisions of Section 19(1) of the Act, as amended, empowering the Commissioner to reopen assessment for any reason, are merely procedural as they deal with the machinery for collecting the tax rather than the tax itself. The contention cannot be upheld. The content of the power conferred upon the Commissioner by the amended provisions of Section 19(1) of the Act is different from the content of the power conferred upon the Commissioner by the unamended provisions of Section 19(1) of the Act. The amendment in question is, therefore, not merely procedural but affects the right of the assessee not to have the assessment reopened, except in cases covered by the provisions of Section 19(1) of the Act. According to the provisions of Section 19(1) of the Act, which were in force in the assessment year 1959-60, the assessing authority could not reopen the assessment on the ground that the C forms accepted earlier by the assessing authority were defective. It, therefore, follows that even after the coming into force of the amending Act No. 20 of 1961, which is not retrospective, the assessing authority would have no jurisdiction to reopen the assessment of the assessee for the assessment year 1959-60 on the ground that the C forms on the basis of which concessional rates were allowed to the assessee were defective. The Tribunal, in our opinion, was therefore justified in holding that the assessing authority could not in the instant case lawfully reopen the assessment of the assessee for the assessment year 1959-60.

5. For all these reasons, our answer to the question reframed by us is in the negative and in favour of the assessee. In the circumstances of the case, parties shall bear their own costs of this reference. We would like to place on record that valuable assistance was rendered to us by Shri M.S. Choudhry, Advocate, who agreed to act as amicus curiae.


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