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TMI Blog1964 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... s of goods shall not be included in the turnover of any dealer except at such single point in the series of sales by successive dealers as the State Government may specify. By section 7 as amended by Act 25 of 1948, a dealer had the option to submit his return on the basis of the turnover of the sales in the previous year or on the basis of turnover of the sales in the current year. The respondent-company opted to be assessed on the basis of the turnover of the previous year ending March 31, 1948. In exercise of the power under section 3-A of the Act the Government of U.P. issued a notification declaring that with effect from June 9, 1948, the proceeds of sale of goods entered in column 2 of the schedule to the said notification (which included cotton yarn) shall not be included in the turnover of any dealer except at the point in the series of sales by successive dealers, and that with effect from June 9, 1948, the rate of tax in respect of the turnover of the aforesaid goods shall be as set out in the schedule. As a result of the notification the sale of cotton yarn became taxable at a single point, i.e., at a point of sale by the importer if the goods were imported from outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1963 which has provided by section 7 of the Amending Act that: "After section 30 of the Principal Act, the following shall be added and be deemed to have been so added with effect from the first day of April, 1948, as a new section 31: '31. (1) Where any dealer has, in accordance with the provisions of section 7, as it stood prior to its amendment by section 7 of U. P. Act XIX of 1956, opted to be assessed to tax on the basis of his turn- over of the previous year, he shall be assessed to tax at such rates as are prevalent during the year for which the assessment is being made, and if the rates of tax on any goods or class of goods are altered during such assessment year, the dealer, in respect of the turnover of such goods, shall be liable to pay tax at the altered rates, as if the altered rates were in force during the previous year also proportionately for the same number of days as they are in force during the assessment year. (2) Notwithstanding any judgment, decree or order of any court, all assessments or orders made, actions or proceedings taken, directions issued, jurisdictions exercised or tax levied or collected by any officer or authority purporting to act under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the law applicable to the transaction as it prevailed at the date on which the reference was made and not of any subsequent amendment of the Act. Counsel submits that as the High Court exercises an advisory jurisdiction, so does this Court in appeal against the order of the High Court, and its advice can only be tendered on the question referred and in the light of the law as was applicable at the date when the reference was made. Counsel says that if the law as amended is to be taken into consideration, in substance this Court would be answering a question other than the one which was referred by the Judge (Revisions) Sales Tax. In our view there is no substance in this contention. The question referred to the High Court posed a problem as to liability of the respondent-company to be assessed for the assessment year 1948-49. Two rival views were propounded before the Judge (Revisions) Sales Tax. One was that the rates applicable to the fictional turnover for the year of assessment were those prevalent in the year 1948-49 and for the purpose of assessment they had to be applied to the turnover in the same proportion in which they would have applied if the option had not been ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chatturam Horilram Ltd.'s case [1955] 2 S.C.R. 290; 27 I.T.R. 709., a previous assessment to income-tax of the assessee fell through because the Indian Finance Act of 1939 was not in force in Chota Nagpur area where the assessee was carrying on business during the relevant assessment year. Thereafter Bihar Regulation IV of 1942 was promulgated by the Governor of Bihar with the assent of the Governor-General and thereby the Indian Finance Act of 1939 was brought into force in Chota Nagpur retrospectively as from March 30, 1939. On February 8, 1944, the Income-tax Officer issued a fresh notice under section 34 of the Indian Income-tax Act, 1922, which resulted in the assessment of the appellant to income-tax, and the question which fell to be determined was whether the notice was properly issued under section 34 of the Act. It was argued that when the High Court answered the earlier reference which negatived the claim of the Revenue to assess the assessee, Bihar Regulation IV of 1942 had in fact been enacted, and if the High Court had applied that Regulation the result would have been different, and in meeting that argument the Court observed that it was doubtful if the High Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply the relevant law applicable to a particular transaction to which the problem relates, and that law normally is the law applicable as on the date on which the transaction in dispute has taken place. If the law which the Tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended. Similarly when the question has been referred to the High Court and in the meanwhile the law has been amended with retroactive operation, it would be the duty of the High Court to apply the law so amended if it applies. By taking notice of the law which has been substituted for the original provision, the High Court is giving effect to legislative intent and does no more than what must be deemed to be necessarily implicit in the question referred by the Tribunal, provided the question is couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law, and the enquiry does not necessitate investigation of fresh facts. If the question is not so couched as to invite the High Court to decide the question in the light of the law as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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