TMI Blog1964 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the petitioners for the issue of a writ of mandamus restraining the respondent, the assessing officer, from proceeding further with the assessment, because rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, which was sought to be enforced, was ultra vires because the rule-making authority did not comply with the prescribed requirements under section 19(4) of the Madras General Sales Tax Act, 1939, for publication of such notices. A rule nisi was issued, and the rule nisi was made absolute by Rajagopala Ayyangar, J. (as he then was) who decided that writ petition, by a judgment pronounced on 1st October, 1959, reported in Baluswami Naidu and Sons v. State of Madras[1960] 11 S.T.C. 231. Approximately at the same time, but in regard to the assessment of a different dealer, the identical question about the valid nature of rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, came for consideration before a Bench of this Court consisting of Ramachandra Iyer, J. (as he then was), and Rajagopalan, J., in Mohamed Abdul Khader v. State of Madras[1960] 11 S.T.C. 247., and they differed from the decision in Baluswami Naidu and Sons v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be valid and all proceedings taken by the State Government or an officer of that Government in connection with the levy or collection of such taxes, shall be valid notwithstanding anything contained in any judgment, decree or order of any Court. It follows, therefore, from the above provision in the Validating Act, that the issue of the notice, which became the subject-matter of Writ Petition No. 15 of 1958, for the assessment on the petitioners for 1957-58, is valid notwithstanding the judgment in Writ Petition No. 15 of 1958 reported in Baluswami Naidu and Sons v. State of Madras[1960] 11 S.T.C. 231. Thereafter, the assessing authority issued a fresh notice on 6th March, 1962, for assessing the petitioners in respect of their turnover for 1957-58. Similarly, it issued a notice on the same date for assessing the petitioners on their turnover for 1958-59. Writ Petitions Nos. 447 and 448 of 1962 were filed for the issue of writs of prohibition restraining the assessing authority from proceeding further in making assessments respectively for the above-mentioned years in pursuance of the notices issued. A rule nisi was issued in both the writ petitions, but it is common ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned may admit an application presented within thirty days after the expiry of the said period if it or he is satisfied that the applicant had sufficient cause for not presenting the application within the said period. (3) Subject to the provisions of sub-section (1), the provisions of the said Act and the said rules shall be deemed to be in force for the purpose of assessment or reassessment and recovery of the tax on sale of hides and skins during the period mentioned in sub-section (1), and, notwithstanding any provision regarding limitation in the said Act and the said rules, it shall be competent for the authority or officer concerned to assess or reassess and recover the tax on sale of hides and skins during the period mentioned in sub-section (1) as if this Ordinance had been in force at the relevant time." This Ordinance was repealed by Act 11 of 1963 enacted by the Madras Legislature. It received the assent of the Governor on 28th August, 1963, but was directed to come into force retrospectively from 10th June, 1963, the date on which Ordinance 3 of 1963 also took effect. This Act took into consideration the fact that only rule 16(2) of the Turnover and Assessment Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for 1957-58 is concerned, it was completed on 31st March, 1963, prior to the coming into force of this Ordinance, and it was, therefore, valid under the rules in force at the time. The question is whether the coming into force of the Ordinance, which substituted new sections for rules 16(1) and 16(2) of the Turnover and Assessment Rules, would have the effect of invalidating the pre-assessment notice as well as the completed assessment for 1957-58. The answer is this: There is nothing in the Ordinance which declares assessments made before the coming into force of the Ordinance invalid. In fact, sections 2(2) and 2(3) of the Ordinance contain provisions for making a reassessment, the former at the instance of the assessee and the latter at the instance of the department, whenever they consider that the assessments made under the pre-existing rules require modification in the light of the Ordinance. Therefore, admittedly as no steps had been taken to reassess under section 2(2) or section 2(3) of the Ordinance it would follow that the assessment already made before the Ordinance came into force as well as the pre-assessment notice would be valid. The other argument advanced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r gave its conclusion thus: "Therefore, even as regards the effect of the repealing of an earlier Act made by a temporary Act, the intention of the temporary Act in repealing the earlier Act will have to be considered and no general or inflexible rule in that behalf can be laid down." Applying the above principles to the facts of the present case, we have to note first that Ordinance 3 of 1963, being one issued under Article 213(2)(a) of the Constitution is by its very nature temporary in character. The question how far sections 2(1) and 2(2) of the Ordinance finally repealed the earlier rules 16(1) and 16(2) is subject to the general rule that on the expiration of a temporary provision, which repeals an earlier Act, the earlier Act is revived after the temporary Act is spent. As observed by the Supreme Court the general rule will prevail, except where the intention of the temporary Act is clearly expressed for the purpose of repealing the earlier Act permanently. There is no expression of such an intention in Ordinance 3 of 1963, for repealing the earlier rules permanently. The provisions in sections 2(2) and 2(3) of the Ordinance show that the earlier Act was to be deemed as vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose whether the amount unlawfully collected should be refunded to the party and whether an order of refund could be issued in the writ petition itself. At page 156 of the report, the learned Judges came to the conclusion that they could give such a direction also to undo the mischief done during the pendency of the writ proceedings, and restore the parties to the position that they occupied prior to the writ petition. Therefore, they directed, while issuing a writ of certiorari, the authorities to refund the money they had collected illegally during the pendency of the writ proceedings. But in the present case, the writ petition itself for quashing the assessment for 1957-58 has failed. No question arises of restoring to a party any benefit which he has lost by an illegal action taken by the authorities during the pendency of the writ proceedings. The principles laid down by the TravancoreCochin High Court, in the decision above cited, will not apply. In our view, as long as there has been no stay of further proceedings for the assessment of the petitioners to tax for 1957-58, there is no need to the assessment. In view of the foregoing discussion, we dismiss all the three writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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