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V. Govindaswami Naidu Vs. the Additional Commercial Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtChennai High Court
Decided On
Case NumberWrit Petitions Nos. 447 and 448 of 1962 and 1201 of 1963
Judge
Reported in[1966]18STC60(Mad)
AppellantV. Govindaswami Naidu
RespondentThe Additional Commercial Tax Officer and anr.
Appellant AdvocateSundararajan and ;Sivaswami, Advs.
Respondent AdvocateV. Ramaswami, Additional Government Pleader
DispositionPetition dismissed
Cases ReferredJoseph v. Assistant Excise Commissioner A.I.R.
Excerpt:
.....different from the corresponding earlier provision in rules 16(1) and 16(2) of the turnover and assessment rules. 5. sections 2(2) and 2(3) are also relevant for our purpose and they read :2. (2) any dealer in hides and skins who has been finally assessed under the provisions of the said act'and the said rules, may within a period of ninety days from the date of the commencement of this ordinance apply to the authority or officer concerned for reassessment under the provisions of this ordinance along with the correct and complete return :provided that the authority or officer concerned may admit an application presented within thirty days after the expiry of the said period if it or he is satisfied that the applicant had sufficient cause for not presenting the application within the..........petition, by a judgment pronounced on 1st october, 1959, reported in baluswami naidu and sons v. state of madras [1960] 11 s.t.c. 231. approximately at the same time, but in regard to the assessment of a different dealer, the identical question about the valid nature of rule 16 of the madras general sales tax (turnover and assessment) rules, 1939, came for consideration before a bench of this court consisting of ramachandra iyer, j. (as he then was), and rajagopalan, j., in mohamed abdul khader v. state of madras [1960] 11 s.t.c. 247 and they differed from the decision in baluswami naidu and sons v. state of madras [1960] 11 s.t.c. 231 and held rule 16 of the madras general sales tax (turnover and assessment) rules, 1939, to be valid. in the opinion of the bench, section 7(e) of the.....
Judgment:

Ramakrishnan, J.

1. The petitioners are a partnership-firm carrying on business in hides and skins. It is common ground that during 1957-58 and 1958-59, the years of assessments dealt with in these petitions, they had a turnover in raw hides and skins assessable on the purchases under Rule 16(1) of the Madras General Sales Tax (Turnover and Assessment) s then in force. These writ petitions have come before us on a reference by one of us sitting singly, because in all these petitions the vires of certain provisions of the Madras General Sales Tax Act and the s framed thereunder has been raised for consideration.

2. For the turnover in 1957-58, the Additional Commercial Tax Officer, Coimbatore North, issued a notice to the petitioners for the purpose of assessing them to sales tax on 19th December, 1957, and this was followed by another notice dated 26th December, 1957. Writ Petition No. 15 of 1958 was filed by the petitioners for the issue of a writ of mandamus restraining the respondent, the assessing officer, from proceeding further with the assessment, because Rule 16 of the Madras General Sales Tax (Turnover and Assessment) rules, which was sought to be enforced, was ultra vires because the -making authority did not comply with the prescribed requirements under Section 19(4) of the Madras General Sales Tax Act, 1939, for publication of such notices. A nisi was issued, and the nisi was made absolute by Rajagopala Ayyangar, J. (as he then was) who decided that writ petition, by a judgment pronounced on 1st October, 1959, reported in Baluswami Naidu and Sons v. State of Madras [1960] 11 S.T.C. 231. Approximately at the same time, but in regard to the assessment of a different dealer, the identical question about the valid nature of Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, came for consideration before a Bench of this Court consisting of Ramachandra Iyer, J. (as he then was), and Rajagopalan, J., in Mohamed Abdul Khader v. State of Madras [1960] 11 S.T.C. 247 and they differed from the decision in Baluswami Naidu and Sons v. State of Madras [1960] 11 S.T.C. 231 and held Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, to be valid. In the opinion of the Bench, Section 7(e) of the Madras General Clauses Act, 1891, would render the valid notwithstanding any possible omission in the matter of compliance with the s for pre-publication. This judgment of the Bench was delivered on 1st December, 1959. There after, the State Government of Madras enacted the Madras General Sales Tax (Turnover and Assessment) Rules Validation Act, 1959 (Act 27 of 1959), which came into force on 19th February, 1960, the date of the Governor's assent. It is necessary to refer to Section 2(1) of this Act, which reads thus :

2. (1) Notwithstanding anything contained in any judgment, decree or order of any Court, no provision of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, made under the Madras General Sales Tax Act, 1939 (Madras Act 9 of 1939), shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that the said s or any provision thereof were or was not made after previous publication for a period of not less than four weeks as required by Sub-section (4) of Section 19 of the said Act, and all taxes levied or collected or purporting to have been levied or collected in pursuance of the said rules shall for all purposes be deemed to be, and to have always been, validly levied or collected and accordingly-

(a) all acts, proceedings or things done or taken by the State Government or by any officer of the State Government or by any other authority in connection with the levy or collection of such taxes shall for all purposes be deemed to be, and to have always been, done or taken in accordance with law ;

(b) no suit or other proceeding shall be maintained or continued in any Court against the State Government or any person or authority whatsoever for the refund of any taxes so paid; and

(c) no Court shall enforce any decree or order directing the refund of any taxes so paid :

Provided that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act had not been passed.

3. The relevant portion of Section 2 of this Act, for the purpose of this case, is that all taxes levied or collected under the pre-existing rules, which will include Rule 16, would be valid and all proceedings taken by the State Government or an officer of that Government in connection with the levy or collection of such taxes, shall be valid notwithstanding anything contained in any judgment, decree or order of any Court. It follows, therefore, from the above provision in the Validating Act, that the issue of the notice, which became the subject-matter of Writ Petition No. 15 of 1958, for the assessment on the petitioners for 1957-58, is valid notwithstanding the judgment in Writ Petition No. 15 of 1958 reported in Baluswami Naidu and Sons v. State of Madras [1960] 11 S.T.C. 231. Thereafter, the assessing authority issued a fresh notice on 6th March, 1962, for assessing the petitioners in respect of their turnover for 1957-58. Similarly, it issued a notice on the same date for assessing the petitioners on their turnover for 1958-59. Writ Petitions Nos. 447 and 448 of 1962 were filed for the issue of writs of prohibition restraining the assessing authority from proceeding further in making assessments respectively for the above-mentioned years in pursuance of the notices issued. A nisi was issued in both the writ petitions, but it is common ground that no order of stay of assessment was obtained in these petitions. It was represented at the time of the hearing before us, that the assessment for 1957-58 was completed on 31st March, 1963, and the assessment for 1958-59 was completed on 28th January, 1964. For quashing the assessment made on 31st March, 1963, for 1957-58 by a writ of certiorari, another writ petition, Writ Petition No. 1201 of 1963, has been filed by the petitioners.

4. We will refer briefly to the subsequent history of Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. In the judgment in Firm A.T.B. Mehtab Majid & Co. v. State of Madras [1963] 14 S.T.C. 355 on 22nd November, 1962, the Supreme Court held Rule 16(2) of the Madras General Sales Tax (Turnover and Assessment) s to be ultra vires, as it made an unfair discrimination for the purpose of assessment, between hides and skins tanned outside the State of Madras and sold by a dealer for the first time inside the State, and hides and skins tanned similarly, but inside the State of Madras, and sold by a dealer in the State. The next stage was the issue of an Ordinance, Ordinance 3 of 1963, by the State Government of Madras to be in force from 10th June, 1963. This Ordinance related to the assessments for the period commencing on 1st April, 1955, and ending on 31st March, 1959. Section 2(1) of the Ordinance made a provision for assessing sales of raw hides and skins as well as dressed hides and skins, whose terms were slightly different from the corresponding earlier provision in Rules 16(1) and 16(2) of the Turnover and Assessment Rules. Explanation II to Section 2(1) of the Ordinance reads :

For the removal of doubts it is hereby declared that in respect of sales to which Sub-section (1) applies, nothing in Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, shall apply or shall be deemed ever to have applied.

5. Sections 2(2) and 2(3) are also relevant for our purpose and they read :

2. (2) Any dealer in hides and skins who has been finally assessed under the provisions of the said Act'and the said rules, may within a period of ninety days from the date of the commencement of this Ordinance apply to the authority or officer concerned for reassessment under the provisions of this Ordinance along with the correct and complete return :

Provided that the authority or officer concerned may admit an application presented within thirty days after the expiry of the said period if it or he is satisfied that the applicant had sufficient cause for not presenting the application within the said period.

(3) Subject to the provisions of Sub-section (1), the provisions of the said Act and the said s shall be deemed to be in force for the purpose of assessment or reassessment and recovery of the tax on sale of hides and skins during the period mentioned in Sub-section (1), and, notwithstanding any provision regarding limitation in the said Act and the said rules, it shall be competent for the authority or officer concerned to assess or reassess and recover the tax on sale of hides and skins during the period mentioned in Sub-section (1) as if this Ordinance had been in force at the relevant time.

5. This Ordinance was repealed by Act 11 of 1963 enacted by the Madras Legislature. It received the assent of the Governor on 28th August, 1963, but was directed to come into force retrospectively from 10th June, 1963, the date on which Ordinance 3 of 1963 also took effect. This Act took into consideration the fact that only Rule 16(2) of the Turnover and Assessment Rules was declared to be ultra vires by the Supreme Court, and therefore it did not re-enact the provision in Section 2(1) of Ordinance 3 of 1963, relating to assessment on raw hides and skins ; however in lieu of the provision in Section 2(2) of the Ordinance, for the assessment on sales of dressed hides and skins, it re-enacted a provision under Section 2(1) providing for their assessment at two per cent, on the first sales. Section 3 of the Act repealed the Ordinance in toto. Sections 2(2) and 2(3) contained provisions for reassessment on terms which are similar to the corresponding provisions in Sections 2(2) and 2(3) of the Ordinance extracted above.

6. The first argument of the learned counsel for the petitioners in these petitions is that for the assessment relating to the year 1957-58 the decision of the single Judge of this Court in Baluswami Naidu and Sons v. State of Madras [1960] 11 S.T.C. 231 was conclusive so far as the assessee and the department are concerned, and the decision in Mohamed Abdul Khader v. State of Madras [1960] 11 S.T.C. 247 validated Rule 16, which was held ulra vires in Baluswami Naidu and Sons v. State of Madras [1960] 11 S.T.C. 231 but it did not have the effect of validating the assessment proceedings declared invalid in Baluswami Naidu and Sons v. State of Madras [1960] 11 S.T.C. 231 The answer to this argument is a very brief one and it has been already indicated. We need not go further than the specific terms in Section 2 of Act 27 of 1959, which we have extracted above. They clearly validated completed assessments as well as steps taken to make such assessments, notwithstanding the judgment or decree of any court. Act 27 of 1959 has been held to be a valid piece of legislation in subsequent decisions of courts and this is not in dispute. It is also not in dispute that the Legislature has power to enact a provision as is contained in Section 2 of Act 27 of 1959 declaring as valid, proceedings taken by authorities notwithstanding the judgment of courts which had invalidated them. It is not necessary to refer to the authorities cited on this view.

7. The second argument of the learned counsel for the petitioners is based on Ordinance 3 of 1963. It substituted two new sections in place of Rules 16(1) and 16(2) with effect from 10th June, 1963, and the Ordinance would apply to sales between 1st April, 1955, and 31st March, 1959. So far as the assessment for 1957-58 is concerned, it was completed on 31st March, 1963, prior to the coming into force of this Ordinance, and it was, therefore, valid under the s in force at the time. The question is whether the coming into force of the Ordinance, which substituted new sections for Rules 16(1) and 16(2) of the Turnover and Assessment rules, would have the effect of invalidating the pre-assessment notice as well as the completed assessment for 1957-58. The answer is this : There is nothing in the Ordinance which declares assessments made before the coming into force of the Ordinance invalid. In fact, Sections 2(2) and 2(3) of the Ordinance contain provisions for making a reassessment, the former at the instance of the assessee and the latter at the instance of the department, whenever they consider that the assessments made under the pre-existing s require modification in the light of the Ordinance. Therefore, admittedly as no steps had been taken to reassess under Section 2(2) or Section 2(3) of the Ordinance it would follow that the assessment already made before the Ordinance came into force as well as the pre-assessment notice would be valid.

8. The other argument advanced by the learned counsel for the petitioners in regard to Writ Petition No. 447 of 1961 is in regard to the effect of Madras Act 11 of 1963. According to the learned counsel, Ordinance 3 of 1963 did away with old Rules 16(1) and 16(2) of the Turnover and Assessment Rules retrospectively : vide Explanation II to Section 2(1). Act 11 of 1963, which repealed. Ordinance 3 of 1963, did not re-enact a provision to correspond to Rule 16(1), but only re-enacted a provision corresponding to Rule 16(2) of the Turnover and Assessment Rules. Therefore, the repeal of Rule 16(1) effected by the Ordinance was complete and final, and since Act 11 of 1963 did nothing to re-enact a provision similar to Rule 16(1) the result would be as if. Rule 16(1) never existed.

9. In this connection, decisions dealing with the effect of temporary statutes having duration for a specific period were cited. It is pointed out that an Ordinance has validity only for the limited period specified in Article 213(2)(a) of the Constitution, and is, therefore, only temporary in character. We will briefly refer to the authorities cited in this connection. In Craies on Statute Law, 6th Edition, at page 408, we have the following observation about the effect of the expiration of a temporary Act:

The difference between the effect of the expiration of a temporary Act and the repeal of a perpetual Act, is pointed out by Parke, B., in Steavenson v. Oliver, (1841) 151 E.R. 1024. 'There is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the. duration of the provisions are matters of construction.'

10. The case referred to in Craies on Statute Law, Steavev-son v.Oliver (1841) 151 E.R. 1024 was followed by the Supreme Court in State of Orissa v. Bhupendra Kumar Bose : AIR1962SC945 and at page 954 they also extract the observations in Craies on Statute Law at page 418 (6th Edition):

If an Act which repeals an earlier Act is itself only a temporary Act, the general rule is that the earlier Act is revived after the temporary Act is spent.... But there will be no revivor if it was clearly the intention of the Legislature to repeal the earlier Act absolutely.

11. The Supreme Court thereafter gave its conclusion thus :

Therefore, even as regards the effect of the repealing of an earlier Act made by a temporary Act, the intention of the temporary Act in repealing the earlier Act will have to be considered and no general or inflexible in that behalf can be laid down.

12. Applying the above principles to the facts of the present case, we have to note first that Ordinance 3 of 1963, being one issued under Article 213(2)(a) of the Constitution is by its very nature temporary in character. The question how far Sections 2(1) and 2(2) of the Ordinance finally repealed the earlier Rules 16(1) and 16(2) is subject to the general that on the expiration of a temporary provision, which repeals an earlier Act, the earlier Act is revived after the temporary Act is spent. As observed by the Supreme Court the general will prevail, except where the intention of the temporary Act is clearly expressed for the purpose of repealing the earlier Act permanently. There is no expression of such an intention in Ordinance 3 of 1963, for repealing the earlier s permanently. The provisions in Sections 2(2) and 2(3) of the Ordinance show that the earlier Act was to be deemed as valid in regard to assessments already completed as they could be modified only by taking reassessment proceedings. Act 11 of 1963, in particular Section 3, which repeals Ordinance 3 of 1963, and the provision, which gives retrospective effect to that Act from the very date when the Ordinance came into effect, viz., 10th June, 1963, show that the intention of the Legislature in enacting Act 11 of 1963 was to do away completely with the effect of the Ordinance, at the end of the period for which it subsisted. In regard to assessments not completed when the Ordinance came to an end, the general mentioned in Craies on Statute Law will apply. Rule 16(1) in force prior to the coming into force of the Ordinance will be automatically revived, and will apply to them. We may mention that the reason for the omission in Act 11 of 1963 to incorporate a provision similar to Rule 16(1) was presumably because only Rule 16(2) was declared ultra vires by the Supreme Court and there was, therefore, no necessity to re-enact a provision to correspond to Rule 16(1). This would also show that the intention of the Legislature was to revive Rule 16(1) on the expiry of the period of the Ordinance. It, therefore, follows that the assessment made on 28th January, 1964, for the year 1958-59 and the pre-assessment notice issued under the provisions of Rule 16(1) are vaild.

13. There was one other argument urged by the learned counsel for the petitioners, which has got a direct application as regards Writ Petition No. 1201 of 1963. The allegation was that the assessment for 1957-58 was made after a nisi had been issued and is, therefore, illegal. But, as already mentioned, there was no stay order obtained by the petitioners restraining the authorities from completing the assessment. Learned counsel for the petitioners referred to the decision of the former Travancore-Cochin High Court in Joseph v. Assistant Excise Commissioner A.I.R. 1953 T.C. 146. But that decision turned on the facts mentioned therein. It was a case where a nisi was issued pending the issue of a writ of certiorari for quashing certainproceedings of the excise authorities calling upon a party to pay a certain amount by way of commission for the cost price of the liquor sold. Notwithstanding the issue of a nisi, the authorities collected the amount. Ultimately, the writ petition was allowed. The question, arose whether the amount unlawfully collected should be refunded to the party and whether an order of refund could be issued in the writ petition itself. At page 156 of the report, the learned Judges came to the conclusion that they could give such a direction also to undo the mischief done during the pendency of the writ proceedings, and restore the parties to the position that they occupied prior to the writ petition. Therefore, they directed, while issuing a writ of certiorari, the authorities to refund the money they had collected illegally during the pendency of the writ proceedings. But in the present case, the writ petition itself for quashing the assessment for 1957-58 has failed. No question arises of restoring to a party any benefit which he has lost by an illegal action taken by the authorities during the pendency of the writ proceedings. The principles laid down by the TravancoreCochin High Court, in the decision above cited, will not apply. In our view, as long as there has been no stay of further proceedings for the assessment of the petitioners to tax for 1957-58, there is no need to the assessment.

14. In view of the foregoing discussion, we dismiss all the three writ petitions. There will be no order as to costs.


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