TMI Blog1968 (9) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... - SHAH J.C., RAMASWAMI V., MITTER G.K., HEGDE K.S. AND GROVER A.N. JJ. Naunit Lal and B.P. Singh, Advocates, for the respondents. D.N. Mukherjee Advocate, for the appellant. -------------------------------------------------- The judgment of the court was delivered by RAMASWAMI, J. -These appeals are brought by certificate from the judgment of the High Court of Assam and Nagaland dated April 4, 1963, in Civil Rule No. 90 of 1960 and Civil Rule No. 382 of 1961, whereby the High Court dismissed the petitions under articles 226 and 227 of the Constitution filed by the appellant. Messrs Hardeo Das Jagan Nath (hereinafter called the "appellant") is a partnership firm carrying on business at Mawkhar, Shillong, in the District of United Khasi and Jaintia Hills. By a notification issued under rule 6 of the Assam Sales Tax Rules, 1947, the Commissioner of Taxes, Assam, fixed May 20, 1948, as the date by which the dealers of Shillong Administered Area had to make applications for registration under the Assam Sales Tax Act, 1947 (17 of 1947), hereinafter called the "Act". By notification dated April 15, 1948, the Government of India had extended the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31, 1958, and September 30, 1958, two separate applications were made by the appellant alleging that it was not necessary to pay the assessed tax since the provisions of section 30 of the Act as amended did not apply to the case and it was prayed that appeals should be admitted without payment of the assessed tax. The contention of the appellant was rejected by the Assistant Commissioner though he reduced the amount of deposit for the periods ending March 31, 1958, and September 30, 1958. The appellant moved the Commissioner of Taxes in revision, but the order of the Assistant Commissioner was affirmed by the Commissioner of Taxes though he reduced the amount further. On the application of the appellant the matter was referred to the High Court which held that the amended section 30 of the Act was intra vires. In the meantime, the appellant also applied in respect of the appeals relating to the periods ending September 30, 1956, March 31, 1957, and September 30, 1957, as well as the penalty appeals of periods ending on March 31, 1958 and September 30, 1958, and prayed for admission of these appeals without payment of the assessed tax. In this case also the amount was reduced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable to the Shillong Administered Areas as the instrument of accession by which the administration of the State of Mylliem was transferred to the Central Government was accepted by the Governor-General of India on August 17, 1948. The preamble to the Extra-Provincial Jurisdiction Act, 1947 (hereinafter called the Act of 1947) provides: "Whereas by treaty, agreement, grant, usage, sufferance and other lawful means, the Central Government has, and may hereafter acquire, jurisdiction in and in relation to areas outside the Provinces of India; It is hereby enacted as follows: " The expression "extra-provincial jurisdiction" has been defined under section 2 of the Act of 1947 as meaning "any jurisdiction which by treaty, agreement, grant, usage, sufferance or other lawful means the Central Government has for the time being in or in relation to any area outside the Provinces." Section 3 states: "3. (1) It shall be lawful for the Central Government to exercise extra-provincial jurisdiction in such manner as it thinks fit. (2) The Central Government may delegate any such jurisdiction as aforesaid to any officer or authority in such manner and to such extent as it thinks fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act were not operative in the Shillong Administered Areas. It was said that before the State of Mylliem became an independent State on August 15, 1947, there was no treaty, grant, usage or arrangement whereby the British Crown enjoyed any rights to levy taxes on the sale of goods within the Mylliem State or any right to extend to that area any such Act without the express consent or approval of the Ruler of that State. The opposite viewpoint was put forward on behalf of the respondents. It was said that before August 15, 1947, the relations of the Crown Representative with Khasi Hills States were conducted through the Governor of Assam. In practice the administration of the Hills States was in great measure assimilated to that of the Province of Assam partly by the application of the British Indian Laws under the Indian (Foreign Jurisdiction) Order-in-Council and partly by administrative measures. It was argued that by virtue of the instrument of accession all previous existing arrangements between Khasi Hills States and the Government of India in the Assam Province were continued and the Central Government could therefore exercise extra-provincial jurisdiction by usage. To pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion over the Shillong Administered Area including Bara Bazar, which also included Mawkhar, a part of the erstwhile Mylliem State, on April 15, 1948; (2) Whether the Dominion of India had extra-provincial jurisdiction on April 15, 1948, to extend the Assam Sales Tax Act, 1947 (Act 17 of 1947) to the Shillong Administered Area including Bara Bazar under section 4 of the Extra-Provincial Jurisdiction Act (Act 47 of 1947)." In compliance of that order the Union of India have submitted their answers on January 12, 1968, in the following terms: "Ministry of Home Affairs Replies to the questions mentioned in the order dated September 21, 1967, passed by the Supreme Court of India in Civil Appeals Nos. 2403 and 2404 of 1966. (1) The British Government in India had by treaty, grant, usage, sufferance and other means acquired jurisdiction over certain territories of the erstwhile State of Mylliem. The jurisdiction was exercised under the Indian (Foreign Jurisdiction) Order-in-Council, 1902, as amended by the Indian (Foreign Jurisdiction) Order-in-Council, 1937. Mawkhar was a part of the territories of Mylliem jurisdiction over which had been agreed to be given by the Siem of Myl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to the Govt. of India. New Delhi, January 12, 1968." It is clear from the letter of the Union Government that it was entitled to exercise extra-provincial jurisdiction over the Shillong Administered Area on April 15, 1948. The reason is that prior to that date British Government had exercised that jurisdiction under the Indian (Foreign Jurisdiction) Order-in-Council, 1902, as amended by the Indian (Foreign Jurisdiction) Order-in-Council, 1937. On the withdrawal of British rule the jurisdiction over the territory of Mylliem State continued to be exercised with the consent of the Ruler by the Dominion of India and the jurisdiction was retained thereafter by virtue of the instrument of accession signed by the Siem of Mylliem and the agreement annexed thereto. It is also manifest that the jurisdiction exercised by the British Government over the Shillong Administered Area was quite extensive and in exercise of that jurisdiction a number of Acts-Central and Provincial- were extended to the Shillong Administered Area, for example, the Indian Income-tax Act and the Assam Municipal Act with the consent of the Siem of Mylliem where necessary. On the withdrawal of the British rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 30, 1956, March 31, 1957, and September 30, 1957. We are unable to accept this argument as correct because the assessments for these three periods were completed after the amending Act came into force, i.e. after April 1, 1958. The appeals against the assessments were also filed after the amendment. It is therefore not correct to say that the amending Act has been given a retrospective effect and the Assistant Commissioner of Taxes was therefore right in asking the appellant to comply with the provisions of the amended section 30 of the Act before dealing with the appeals. It was lastly contended on behalf of the appellant that the sales tax authorities were not right in holding that there was no provision under the Act by which security can be accepted in lieu of cash payment. Reliance was placed upon the phrase "otherwise directed" in the amended section 30 of the Act. In our opinion, there is no substance in this argument. The expression "otherwise directed" only means that the appellate authority can ask the assessee to deposit a portion of the amount and not the whole, but the section gives no power to the appellate authority to permit the assessee to furnish security in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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