TMI Blog1984 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule, at the rates and at the points specified as applicable thereto, on the turnover of the dealer in each year relating to such goods irrespective of the quantum of turnover." (2) Addition of sub-section (2A) to section 39 (section 3 of the Ordinance), which is as follows: "(2A) Any rule made under this Act, may be made so as to have retrospective effect. " (3) Omission of items 25 and 26 and the entries relating thereto from the First Schedule [section 4, clause (13), of the Ordinance]. (4) Addition of Sixth Schedule (section 8 of the Ordinance). The Sixth Schedule is as follows: "[Goods in respect of which tax is leviable under section 5(2)(d).] ----------------------------------------------------------------------------- Description of the goods Point of levy Rate of tax ----------------------------------------------------------------------------- (1) (2) (3) ----------------------------------------------------------------------------- 1. Country liquor. At every point of sale 10 paise in the in the State. rupee. 2. All liquors other than At every point of sale 25 paise in the country liquor. in the State. rupee. ---------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the principal Act; (2) addition of sub-section (2A) to section 39; (3) omission of items 25 and 26 and the entries relating thereto from the First Schedule and (4) addition of Sixth Schedule to the principal Act. The Sixth Schedule as introduced by this Ordinance is slightly different from the Sixth Schedule contained in Ordinance No. 11 of 1983. The rate of tax is altered and in the case of country liquor it is 10 paise in the rupee at every point of sale other than the last point of sale and 5 paise in the rupee at the point of last sale in the State. In the case of liquors other than country liquor. the rate of tax is 25 paise in the rupee at every point of sale other than the last point of sale in the State and 5 paise in the rupee at the point of last sale in the State. The proviso to the Sixth Schedule is also altered to the effect that the turnover of the goods at any point of sale other than the first point of sale shall be arrived at by deducting the turnover of such goods on which tax has been levied at the immediately preceding point of sale. The Andhra Pradesh Legislative Assembly passed the Andhra Pradesh General Sales Tax (Amendment) Act (11 of 1984) amending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation only with effect from 20th September, 1983. Section 5 is the charging section. Therefore, for the period from 8th July, 1983 to 20th September, 1983, country liquor and liquors other than country liquor are taxable only as per the unamended provision, namely, section 5(2)(a), which says that tax shall be levied on the goods mentioned in the First Schedule at the rates and at the point of sale specified therein. It is submitted that these two items which stood as items 25 and 26 in the First Schedule of the principal Act were omitted from the First Schedule [by clause (xi) of section 6 of the amending Act] with retrospective effect only from 20th September, 1983. These two items remained in the First Schedule till 20th September, 1983. They therefore submit that no tax can be levied as per the amended Act for the period prior to 20th September, 1983, notwithstanding the fact that the Sixth Schedule was amended with effect from 8th July, 1983. In the absence of a charging section, the Sixth Schedule cannot be given effect to. Since the charging section was amended only with effect from 20th September, 1983, for the period prior thereto these two items cannot be subjected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83. On 20th September, 1983, the Assembly was prorogued and Ordinance No. 19 of 1983 was passed. Therefore, Ordinance No. 11 of 1983 is in force up to 20th September, 1983, on which date Ordinance No. 19 of 1983 was passed. The latter Ordinance was repealed by Act 11 of 1984 and the Act was given retrospective effect, some provisions with effect from 8th July, 1983, some with effect from 24th August, 1983, and some from 20th September, 1983. So for all practical purposes, Ordinance No. 19 of 1983 can now be ignored since it is repealed. It is well-settled that "repeal" connotes abrogation or obliteration of one statute by another, from the statute book as completely "as if it had never been passed"; when an Act is repealed, "it must be considered as if it had never existed" (vide India Tobacco Co. v. Commercial Tax Officer [1975] 35 STC 95 (SC); AIR 1975 SC 155). The short question for consideration is whether there was any valid law prior to that date authorising levy of tax on the two items mentioned in the Sixth Schedule at the rates mentioned therein. The amending Act 11 of 1984 has introduced the Sixth Schedule with effect from 8th July, 1983. True, in the absence of a chargin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been impliedly withdrawn. We find it difficult to accept this contention in view of clause (b) of article 213(2) of the Constitution which says that Ordinance may be withdrawn at any time by the Governor. There cannot be a withdrawal by implication. Ordinance No. 11 of 1983 was not withdrawn by the Governor. It is not even repealed. It had its full force up to 20th September, 1983, when the Assembly was prorogued and a new Ordinance was promulgated which was later repealed by Act 11 of 1984. It is then contended that the Ordinance is in the nature of a temporary statute and in the absence of a saving provision, no proceedings under that temporary statute can be taken after the expiry of the statute. In support of this contention, the learned counsel for the petitioner relied upon State v. Jagamander Das AIR 1954 SC 683. In this case, it was held that where a statute comes to an end by efflux of time, no prosecution for acts done during the continuance of the expired Act can be commenced after the date of its expiry because that would amount to the enforcement of a dead Act. We fail to see how this decision has any application to the facts of the present case. The levy was authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect any right accrued under the enactment so repealed. We do not agree with this submission either. There is a presumption against a repeal by implication. The legislature while enacting the law has complete knowledge of the existing laws on the same subject-matter and when it does not provide a repealing provision it gives out an intention not to repeal the existing legislation. But the presumption can however be rebutted and a repeal can be inferred by necessary implication when the provisions of the latter Act are so inconsistent with or repugnant to the provisions of the earlier Act. In the present case, Ordinance No. 11 of 1983 is not repealed. It had its full force up to 20th September, 1983, as per article 213(1) of the Constitution of India. Act 11 of 1984 had repealed only Ordinance No. 19 of 1983. There was also no implied repeal as there was no inconsistency between Ordinance No. 11 of 1983 and Act 11 of 1984. Implied repeals are not generally favoured and where two enactments are affirmative, the question of inconsistency does not arise. While one is for a temporary duration, the latter is a permanent enactment (vide T.M.L.S. Bradari v. Improvement Trust AIR 1963 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amending Act that the intention was to levy the tax as per the Sixth Schedule with effect from 8th July, 1983. Otherwise, there was no necessity to amend the schedule with effect from 8th July, 1983. The amending Act also amended section 12 of the principal Act by substituting the words "and Fifth Schedule" with the words "Fifth and Sixth Schedules" with effect from 8th July, 1983, and section 12(2)(a) as amended reads "notwithstanding anything contained in sub-section (1) every dealer carrying on business in all or any of the goods mentioned in the First, Second, Third, Fifth and Sixth Schedules (no Sixth Schedule prior to amendment) excepting a person doing business in a small bunk, or a hawker or any other class of dealer notified by the State Government in this behalf, shall get himself registered under this Act, irrespective of the quantum of his turnover in such goods". The amendment of the schedule and section 12 read together clearly point out that the intention of the legislature was to tax the goods mentioned in the Sixth Schedule with effect from 8th July, 1983. Otherwise, there is no meaning in amending the schedules of the principal Act with retrospective effect fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Tribunal finally held that the amended provision had to be given effect to and therefore the assessee has to be assessed on a turnover of Rs. 39,999 at 2 per cent. On a revision filed by the State, a Full Bench of this Court held that sales tax is imposed on receipts from individual sales or purchases of goods effected during the accounting period. The taxable event under the Act is either sale or purchase and the scheme of the Act is that each transaction of sale or purchase by a dealer attracts tax at the point of time when the transaction takes place though for the purpose of convenience the computation of turnover is made annually. The liability to pay tax arises on the happening of the taxable event though quantification and its collection may be postponed till after the total turnover is determined, the tax quantified and the actual demand made. In this view, the Full Bench held that the amended proviso would govern the transactions completed after it came into force and the quantum of tax will be determined according to the rates prevailing after the amendment and that the transactions completed prior to the date of amendment would be governed by the proviso as it pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods has to be determined. It says that at any point of sale other than the first point of sale and the last point of sale, the turnover of the goods liable to tax shall be arrived at by deducting the turnover of such goods on which tax has been levied at the immediately preceding point of sale. So far as the first point of sale is concerned, the turnover has to be taxed as such. There cannot be any dispute about this. At the subsequent point of sale the proviso provides for the deduction of the turnover which has already suffered tax previously. The idea is that the turnover which has already been taxed should not be taxed once again. By this method there will be more revenue to the State and at the same time no undue burden is cast upon the dealers by taxing the goods at every point. Then when we come to the last sale, as per the proviso tax has to be levied on the entire turnover and it is precisely for that reason a lesser rate of tax is prescribed. While it is 10 paise and 25 paise in other cases at the point of last sale it is 5 paise. The classification of transactions with reference to every point of sale other than the first point of sale and the last point of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on either. "Turnover" is defined in section 2, clause (s), of the Sales Tax Act. It is as follows: "'Turnover' means the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing of value) including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof." In view of this definition clause, we do not find any difficulty in giving effect to the proviso to the Sixth Schedule. All that the dealer has to do is to produce the bill of sale under which he purchased the goods and have it deducted from his own turnover to arrive at the turnover on which he has to pay tax. To illustrate the point, if the dealer has purchased the goods for a sum of Rs. 100 he can produce the bill and have that amount deducted from his turnover and pay tax only on the balance. It is not necessary for the dealer to produce the particulars of all sales by his immediate preceding de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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