TMI Blog1982 (7) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... s had been made liable to tax at the point of first purchase. For the assessment year 1973-74 the Sales Tax Officer, Sector II, Budaun, respondent No. 1, exempted the turnover of cotton seed sold by the petitioner. However, on 21st July, 1977, he issued a notice under section 15-A (1)(a) of the Act requiring the petitioners to show cause as to why penalty should not be imposed for not depositing the tax on the turnover of cotton seed in view of the notification aforesaid. This notice has been issued for the assessment years 1973-74 to 1977-78. The petitioners challenged this notice, inter alia, on the grounds that since the turnover in respect of binaula stood exempted under section 4 of the Act, the petitioners were not required to deposit any tax in respect thereof and respondent No. 1 had no jurisdiction to initiate penalty proceedings under section 15-A(1)(a) of the Act. Another ground, on which the notice has been challenged, is that a single notice for the assessment years 1973-74 to 1977-78 is illegal and bad. A counter-affidavit has been filed on behalf of the respondents in which by reference to the various notifications it has been sought to make out that the turnover i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his section was substituted. In the substituted section, the class of goods the sales of which were exempted from tax was mentioned and in clause (b) the sale or purchase of any goods by certain class of persons was exempted. Both sections 3-D and 4 have undergone further changes but it is not necessary to refer to them. Suffice it to say that the Act as originally enacted provided for levy of tax on the sale of goods in Uttar Pradesh. From 1964 it also provided for levy of tax on purchase of goods. Under section 4 certain class of goods and class of persons were exempted from tax. By subsequent amendment exemption from tax on purchase of goods also was extended to certain class of persons. By Notification No. ST-911/X dated 31st March, 1956, with effect from 1st April, 1956, the goods specified in List II appended thereto were exempted from payment of tax. Entry No. 3 of List II provided for "cattle fodder including green fodder". Subsequently by Notification No. ST-3471/X dated 16th July, 1956, also issued under section 4 of the Act the words "cattle fodder including green fodder" occurring in entry No. 3 aforesaid were substituted by the words "cattle fodder including green fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List II of Notification No. ST-911 dated 31st March, 1956, was substituted by Notification No. 2994/X-6(7)-73 dated 3rd April, 1975, and this entry now reads: "Cattle fodder including green fodder, chuni, bhusi, chhilka, chokar, and gowar, but not including khali (oilcake), rice polish, rice bran or rice husk." What thus comes out is that under section 4 of the Act, originally exemption was granted from 1st April, 1956, to cattle fodder including green fodder. By means of a subsequent amendment cattle fodder was stated to mean green fodder, chuni, bhusi, chhilka, chokar, cotton seed, gowar, and oilcake. This amendment was to take effect from 1st April, 1956, itself and now with effect from 5th April, 1975, this entry has been amended so that cotton seed does not find place within the definition of cattle fodder. It is an inclusive definition. Some of the goods have been specifically mentioned for inclusion in the definition of cattle fodder and some have been specifically excluded from it. Thus, till 5th April, 1975, exemption granted in respect of cotton seed had not been withdrawn and the question is as to whether from 5th April, 1975, it can be said that the exemption grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ice-cream and lassi. Such turnover stood exempted under section 4 of the Act. It was made taxable under section 3-A. The view taken was that the turnover of these items could not be included in the net taxable turnover because of the exemption granted under notification issued under section 4 in respect of milk products and ice-cream and lassi wers items of milk products. It was submitted by Sri Bharatji Agarwal, the learned counsel for the petitioners, that once a notification is issued in exercise of powers conferred under section 4 of the Act, then irrespective of changes made in section 4, that exemption would continue. In our opinion, this submission is only partially correct. If once an exemption is granted under section 4 of the Act in respect of any class of goods or class of persons, then unless such exemption is withdrawn it shall remain in force. In regard to cattle fodder we have seen that exemption was granted with effect from 1st April, 1956. Cattle fodder originally included green fodder only. Subsequently, by Notification No. 3471 dated 16th July, 1956, the definition of cattle fodder was extended to include not only green fodder but cotton seed as well along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall continue to remain in force. In support of this legal proposition reliance was placed on Poona Electric Supply Co. Ltd. v. State AIR 1967 Bom 27, para 13, Chief Inspector of Mines v. Karam Chand Thapar AIR 1961 SC 838, para 9, and Neel v. State of West Bengal AIR 1977 SC 2066, para 9. There can be no dispute in so far as the legal proposition is concerned that any notification, rule, etc., made under the repealed Act shall continue in force provided it is not inconsistent with the re-enacted provision and unless there is an express provision in the re-enacted provision to the effect that it shall not so continue in force. This principle, however, does not apply to the present case. We have indicated above that earlier the definition of cattle fodder included cotton seed but with effect from 5th April, 1975, the amended definition of cattle fodder does not include it. The exemption granted to cotton seed, therefore, stands withdrawn. In the legislative context which we have mentioned in detail above, it would become clear that the exemption has been expressly withdrawn. We are, therefore, of the opinion that with effect from 5th April, 1975, cotton seed does not enjoy exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
