TMI Blog2006 (2) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... itiating and completing penalty proceedings under the Andhra Pradesh General Sales Tax Act, 1957 (for short, "the A.P.G.S. Tax Act"), after its repeal. 3.. We are not adjudicating the merits of the controversy involved in these appeals but are confining our judgment to the limited question of the jurisdiction of the Assistant Commissioner in initiating proceedings under the said A.P.G.S. Tax Act after its repeal. The brief facts which are imperative to dispose of these appeals are as under: The appellant, M/s. Gammon India Ltd., is a construction company. The appellant, after obtaining construction contract in the State of Andhra Pradesh applied to a registered dealer for the purposes of section 5B of the A.P.G.S. Tax Act for concessional tax available to the registered dealers, purchasing from other registered dealers in the State of Andhra Pradesh. According to the respondents, the appellant had falsely issued form G and claimed reduced rates of tax from the sellers whereas according to the appellant, G-2 form was issued by the sales tax authorities and the form specifically enumerated commodities/items which were entitled to a concessional tax. One of the items specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed representative touching upon all the material evidence before the undersigned within (7) days of receipt of this notice, failing which proposed levy of penalty will be confirmed without further notice. Assistant Commissioner (CT) (Intelligence and LTU), Warangal Division, Warangal. To M/s. Gammon India Limited, Paloncha." 5. The appellant, after a few weeks, received two more notices PR No. 1/2005 and PR No. 2/2005 on April 12, 2005, from the Assistant Commissioner, Commercial Taxes. In these notices also it is incorporated that the appellant had falsely issued form G and claimed reduced rate of tax from the sellers. 6. The appellant also received a letter dated September 19, 2005, from the I/C Executive Engineer, I CADD, Irrigation Division, Bhadrachalam, asking the appellant to get clearance of sales tax due for Rs. 4,06,83,207 from the Dy. Commissioner (CT), Warangal Division, Warangal, and produce the clearance certificate. 7.. The Andhra Pradesh Value Added Tax Act (for short, "the A.P.V.A. Tax Act") came in force from 1st April, 2005, in the State of Andhra Pradesh and consequently the A.P.G.S. Tax Act was repealed. 8.. The notices were issued to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ petition, held that the Assistant Commissioner was not prohibited from initiating and completing the said proceedings. 12.. The appellant, aggrieved by the said judgment, has filed special leave petitions under article 136 before this Court. For examining the jurisdiction of the Assistant Commissioner of Commercial Taxes in initiating and completing the penalty proceedings under the A.P.G.S. Tax Act, it is necessary to note the relevant provisions of the Act. 13.. Section 80 of the A.P.V.A. Tax Act reads as under: "80(1). The Andhra Pradesh General Sales Tax Act, 1957 is hereby repealed: Provided that such repeal shall not affect the previous operation of the said Act or section or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit) in the exercise of any power conferred by or under the said Act or section shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act was in force on the date on which such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that even in the absence of a provision similar to section 80(3) of the A.P.V.A. Tax Act, section 8 of the A.P. General Clauses Act, which is analogous to section 6 of the General Clauses Act, is not confined to mere repeal of a statute but extends to a repeal followed by fresh legislation, unless a different intention appears from the new enactment and that it is for the court to enquire whether the fresh legislation had preserved the rights and liabilities created under the old statute or whether its intendment was to obliterate them. This difficulty does not arise in the present case inasmuch as section 80(3) of the A.P.V.A. Tax Act specifically makes section 8 of the A.P. General Clauses Act, 1891, applicable on the repeal of the A.P.G.S.T. Act. 16.. Mr. Jaideep Gupta, learned Senior Advocate appearing for the appellant, has drawn our attention to M.S. Shivananda v. Karnataka State Road Transport Corporation (1980) 1 SCC 149. A careful reading of the said judgment also leads to the same conclusion that after repeal of the Act whether it applies or not depends on the intention of the Legislature which is reflected by the language used in the subsequent Act passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right. 23.. The legal position which existed in England before section 38(2) was inserted in the Interpretation Act of 1889 is reflected from the following two English cases. 24.. In Kay v. Goodwin reported in [1830] 6 Bing. 576; 130 ER 1403, Tindal, Chief Justice, observed that the effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law. 25.. Lord Tenterden in Surtees v. Ellison [1829] 9 B C 750; 109 ER 278 observed that when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed. 26.. In England, to obviate such result a practice was developed to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. When it was found cumbersome to insert a saving clause in every st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not." 29.. When we look to the American law, we find basic similarity in the scope and ambit of the provisions relating to repeal and re-enactment of the statute. We deem it appropriate to refer some relevant American judgments. 30.. In Bear Lake River Waterworks Irrigation Co. v. Garland 164 US 1; 41 L Ed 327, the U.S. Supreme Court has held that the re-enactment of a statute which has been repealed by specific provision, or by implication from later legislation, invalidates the previous repeal and restores the statute to effective operation. 31.. In that very case, the Court held that a so-called "simultaneous repeal and re-enactment" is a misnomer, for there is no repeal by implication effectuated of the original Act, and even though the "repeal" is declared by specific provision in the later enactment the courts will construe the unchanged provisions as being continuously in force. 32.. In Commonwealth v. Gross 21 A.2d 238, 240; 145 Pa. Super. 92 it was observed that in so far as the Workme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Pentheny Ltd. v. Government of Virgin Is- lands Federal Reporter 2d Series Vol. 360 pg. 786, the U.S. Court of Appeals has observed as under: "Simultaneous repeal and re-enactment of substantially the same statute, or part thereof, is a substitution and not a repeal, and the statute, or part thereof, thus substituted is construed as a continuation of the original provisions to the extent re-enacted and jurisdiction of administrative agency under such statute is not disturbed as to those provisions which were continued under the new statute." 39.. The legal position in Australia is also almost similar. The Interpretation Act of 1984 of Australia also has similar provisions. The relevant portion of section 37(1) of the Act reads as under: "Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears (a)........... (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal; .......... (f) affect any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts have interpreted section 6 of the said Act in the same manner as the similar provisions have been interpreted by the English and American courts. 43.. In Basant Singh v. Rampal Singh AIR 1919 Oudh 217, it has been held that where an Act repeals a previous Act and provides that all orders issued under the repealed Act shall, so far as may be, be deemed to have been issued under the new Act, or is repealed with proviso "except as to things done under it" the provision is designed to safeguard the validity of orders, appointments, etc., issued under the repealed Act and not to give retrospective effect to the new Act. 44.. A seven-Judge Bench of this Court, by majority, laid down in Keshavan Madhava Menon v. State of Bombay [1951] SCR 228, that the court was concerned with the legality of the prosecution of the appellant for contravention of the Indian Press (Emergency Powers) Act, 1931. The offence had been committed before the Constitution came into force and a prosecution launched earlier was pending after January 26, 1950. The enactment which created the offence was held to be void under article 19(1)(a) read with article 13 as being inconsistent with one of the fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. 47.. In the case of Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni See [1960] 30 Comp Cas 468., AIR 1960 SC 794, it was observed as under: "Section 6 of the General Clauses Act provides that where an Act is repealed, then, unless a different intention appears, the repeal shall not affect any right or liability acquired or incurred under the repealed enactment or any legal proceeding in respect of such right or liability and the legal proceeding may be continued as if the repealing Act had not been passed. There is no dispute that section 153-C of the Act of 1913 gave certain rights to the shareholders of a company and put the company as also its directors and managing agents under certain liabilities. The application under that section was for enforcement of these rights and liabilities. Section 6 of the General Clauses Act would therefore preserve the rights and liabilities created by section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis upon which the doctrine of implied repeal is founded, could there be any incongruity in attributing to the later legislation the same intent which section 6 presumes where the word "repeal" is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that Legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Beni Ram Jain Glass Works v. S.S. Singh (1971) 2 SCJ 307 July-December, this Court held that section 6 would apply to a case of repeal even if there is a simultaneous enactment unless a contrary intention appears from the new enactment. 55.. In Qudrat Ullah v. Municipal Board, Bareilly (1974) 1 SCC 202, the court held that the general principle is that an enactment which is repealed is to be treated, except as to transactions passed and closed, as if it had never existed. However, the operation of this principle is subject to any savings which may be made, expressly or by implication, by the repealing enactment. If a contrary intention appears from the repealing statute, that prevails. 56.. A three-Judge Bench of this Court in India Tobacco Co. Ltd. v. Commercial Tax Officer See [1975] 35 STC 95., (1975) 3 SCC 512, held that repeal is not a matter of mere form but is of substance, depending on the intention of the Legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s saved by section 217(2)(a) read with sub-section (4) thereof. Therefore, the second renewal granted under section 81 was valid in law. There was no need for the appellant to obtain a fresh permit under the Act as the renewal is a continuation of the original permit which is a vested right. The effect of saving provisions in section 217(2)(a) is to allow all the permits granted under the repealed Act to continue after renewal under the Act. Section 217(2)(a) and sub-section (4), thus, obviate the need to obtain fresh permit under the Act and, therefore, it would be unnecessary. According to the appellant, the Act is not intended to lay down that after the Act came into force, all the holders of stage carriage permits granted under the repealed Act would be required to obtain fresh permits under the Act. Section 6 of the General Clauses Act, 1897, read with sections 217(2)(a) and (4) saves operation of all those permits which were alive when the Act came into force. Consequently, renewals granted under section 81 were valid. 61.. In Gajraj Singh's case (1997) 1 SCC 650, the court observed that the proceedings under the repealed Act would be continued and concluded under the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to Halsbury's Laws of England (supra), where any Act after 1889 repeals and re-enacts, with or without modification, a previous enactment, then, unless the contrary intention appears, any reference in any other enactment to the enactment so repealed must be construed as a reference to the provision re-enacted. 66.. Crawford in his book on Interpretation of Law stated that an express repeal will operate to abrogate an existing law, unless there is some indication to the contrary, such as a saving clause. Even existing rights and pending litigations, both civil and criminal, may be affected although it is not an uncommon practice to use the saving clause in order to preserve existing rights and to exempt pending litigation. 67.. In the said book it is further stated that often the Legislature instead of simply amending a pre-existing statute, will repeal the old statute in its entirety and by the same enactment re-enact all or certain portions of the pre-existing law. Of course, the problem created by this sort of legislative action involves mainly the effect of the repeal upon rights and liabilities which accrued under the original statute. Are those rights and liabilities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure which is further embodied in statutory terms exists as an enforceable right exclusive of the statute declaratory of it, and therefore the right is not expunged by the repeal of the statute. 71. Since the effect of a repeal is to obliterate the statute and to destroy its effective operation in future, or to suspend the operation of the common law, when it is a common law principle which is abrogated, any proceedings which have not culminated in a final judgment prior to the repeal are abated at the consummation of the repeal. When, however, the repeal does not contemplate either a substantive common law or statutory right, but merely the procedure prescribed to secure the enforcement of the right, the right itself is not annulled but remains in existence enforced by applying the new procedure. 72.. In the instant cases, there is a simultaneous repeal and the re-enactment and the A.P.V.A. Tax Act clearly saves the earlier provisions in toto. Consequently, rights and liabilities accrued or incurred under the A.P.G.S. Tax Act shall continue even after it is repealed. 73.. On critical analysis and scrutiny of all relevant cases and opinions of the learned authors, the conc ..... 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