TMI Blog1988 (1) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... he otherwise cannot. It is thus a substantive provision. That apart, even the question whether a charge to tax can be imposed in one State or another is not a mere question of venue. It may have an impact on the rate of tax in certain cases and it also regulates the rights inter se of States to levy taxes on such inter-State sales. It is, therefore, difficult to accept the contention that the amendment should be treated as purely procedural and hence necessarily retrospective. - Civil Appeal No. 953, 954 of 1975 - - - Dated:- 12-1-1988 - SABYASACHI MUKHARJI AND RANGANATHAN S. JJ. Harish N. Salve, Mrs. A.K. Verma, J. Peres and D.N. Mishra, Advocates, for the respondent. S.C. Manchanda, Senior Advocate (A.K. Srivastava, Advocate, with him), for the appellants. -------------------------------------------------- The judgment of the Court was delivered by S. RANGANATHAN, J.- These are two appeals by certificate from the common order, dated February 15, 1974, of the Allahabad High Court in Civil Miscellaneous Writ Petitions Nos. 6904 and 6906 of 1973. They can be disposed of together since the question raised is the same. This common question arises out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade thereunder, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, compounding of offences and treatment of documents furnished by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered dealer obtained or, as the case may be, could have obtained, the form prescribed for the purposes of clause (a) of sub-section (4) of section 8 in connection with the purchase of such goods, and (b) where such subsequent sale has been effected by an unregistered dealer in the State from which such subsequent sale has been effected.'; (b) in sub-section (2), before the words 'compounding of offences', the words 'charging or payment of interest,' shall be inserted and shall be deemed always to have been inserted; (c) after sub-section (2), the following sub-section shall be inserted, namely: '(2A) All the provisions relating to offences and penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in sections 10 and 10A) of the general sales tax law of each State shall, with necessary modifications, apply in relation to the assessment, reassessment, collection and the enforce- ment of payment of any tax required to be collected under this Act in such State or in relation to any process connected with such assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by way of such penalty; (c) where any amount which had been received or realised by way of such penalty had been refunded before the commencement of this Act and such refund would not have been allowed if the provisions of sub-section (1) had been in force on the date on which the order for such refund was passed, the amount so refunded may be recovered as an arrear of tax under the principal Act; (d) any proceeding, act or thing which could have been validly taken, continued or done for the imposition of such penalty at any time before the commencement of this Act if the provisions of sub-section (1) had then been in force but which had not been taken, continued or done, may after such commencement be taken, continued or done. (3) Nothing in sub-section (2) shall be construed as preventing any person,- (a) from questioning the imposition or collection of any penalty or any proceedings, act or thing in connection, therewith; or (b) from claiming any refund, in accordance with the provisions of the principal Act read with sub- section (1)." Shri Manchanda contends that, by virtue of section 9 of the Amendment Act, clause (b) of the proviso to section 9(1) of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned) in view of the decision of this Court in Khemka v. State of Maharashtra [1975] 35 STC 571; [1975] 3 SCR 753. This was the raison d'etre of section 9 of the Amendment Act which has been extracted above: [see Shiv Dutt Rai v. Union of India [1983] 53 STC 289 (SC); (1983) 3 SCC 529]. This is also clear from paragraph 3 of the Statement of Objects and Reasons of the Amendment Act, which reads: "Sub-section (2) of section 9 of the Central Sales Tax Act empowers the State sales tax authorities to assess, reassess, collect and enforce payment of Central sales tax. The sub-section also authorises the authorities under the State sales tax laws to exercise all the powers which they have under those laws (including, inter alia, the power to impose penalties) for the purposes of the Central Sales Tax Act also. In Khemka Co. (Agencies) P. Ltd. v. State of Maharashtra [1975] 35 STC 571, the Supreme Court, by a majority of 3: 2, held that the provisions of the State sales tax laws as to penalties do not apply for purposes of the Central sales tax. In view of this judgment, the State Governments are faced with the problem of having to refund the amounts collected in the past by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When even a sale by a registered dealer is thus made liable, counsel argues, it could not have been the intention of the State to exempt from liability a sale by an unregistered dealer. The amendment only clarifies this position. It imposes no fresh substantive liability. It is only an amendment of a procedural nature shifting chargeability, in such cases, from the State from which the goods moves, to the State in which the subsequent sale takes place. In this view of the matter, counsel contends, the amendment only affects the venue of taxation and, being procedural in nature, requires to be construed retrospectively. 8.. We are unable to accept these contentions. So far as the first point is concerned, the language of the validation section clearly concerns only penalties which are dealt with under section 9(2). The amending Act refers to section 9 in general and not to section 9(2) only perhaps because section 9(1) also contains a reference to sub-section (2). From this circumstance alone, it cannot be inferred that retrospectivity to the amendment of section 9(1) also is intended. The use of the word "also" does not also have the result suggested by counsel. All that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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