TMI Blog2008 (9) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... into force of the 1992 Act. The order, which is impugned in this review application, has to be set aside and accordingly the same is set aside. - - - - - Dated:- 2-9-2008 - RAVIRAJA PANDIAN K. AND JANARTHANARAJA P.P.S. , JJ. ORDER:- The order of the court was made by K. RAVIRAJA PANDIAN J. The review application is filed by the Revenue to review the order dated July 24, 2006 made in W.P. No. 2816 of 2006. The said writ petition was filed by the first respondent/assessee against the order of the Sales Tax Appellate Tribunal made in T.A. No. 1320 of 2002 dated October 21, 2005 confirming the order of the lower authorities. Before the Division Bench, it was contended by the assessee that the Tamil Nadu Taxation Special Tribunal Act (Act No. 42 of 1992) (hereinafter called the 1992 Act ) was repealed by the Tamil Nadu Taxation Special Tribunal (Repeal) Act, 2004 (Act No. 34 of 2004) (hereinafter called the repeal Act, 2004 ). Thereafter there is no forum for hearing the revision. Hence, by way of judicial review, under article 226 of the Constitution, writ petition is filed, which is maintainable. However, it was contended by the Revenue that in view of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, 2005. The Tax Case Revision No. 38 of 2000, though filed in the year 2000, came to be disposed of on June 12, 2006 Mhitraa Enterprises v. State of Tamil Nadu , which is well after the date of repeal of Act No. 42 of 1992. But Tax Case Revision No. 38 of 2000 has been disposed of by following a decision dated April 1, 1999 made in T.C. Nos. 37, 38 and 115 of 1998(1), which was rendered when the 1992 Act was in force. The effect of repeal of the 1992 Act has not been considered and a decision rendered in T.C. No. 38 of 2000(2). Thus, the reasons stated in the order, which is now sought to be reviewed, is not reflecting the correct position of fact and law. Hence, the present review petition is filed by the Revenue. The maintainability of the review petition has not been disputed by either of the parties, rather both the parties argued on the merits to have the impugned order reviewed on the merits with reference to the relevant statutory provisions, which are obtaining during the relevant period. The TNGST Act, 1959 was enacted to consolidate and amend the laws relating to the levy of a general tax on the sale or purchase of goods in the State of Tamil Nadu. Various terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late as to the changes made by the said Act in detail for the reason that the said Act No. 58 of 1986 was not at all notified by the Government for its implementation. As the Act was not notified, appeals and revisions were filed before the High Court only. In the year 1992, the Government of Tamil Nadu enacted an Act called the Tamil Nadu Taxation Special Tribunal Act, 1992 (Act No. 42 of 1992) under article 323B of the Constitution of India for adjudication or trial by a Special Tribunal of any disputes, complaints or offences with respect to the levy, assessment, collection and enforcement of any tax under any specified State Act and the matters connected therewith or incidental thereto under section 6 of the Act. The other provisions up to section 23 provided for constitution of the Tamil Nadu Taxation Special Tribunal and its functions and powers. Section 24 of the said Act provided among other things that the TNGST Act shall have effect as if, wherever the words High Court occur, the words Special Tribunal had been substituted, as if section 39 had been omitted. The three State Acts over which the Special Tribunal Act was made applicable are the TNGST Act, 1959, Tami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the effect of bringing about the textual amendment to sections 37 and 38 of the TNGST Act, 1959. The expression as if used in section 42 of 1992 Act is in the nature of a legal fiction and substitution of the words Special Tribunal for the words High Court did not actually take place. The intention of the Legislature, in having designed section 24 in the manner as it found, is clear that sections 37, 38 and 39 of the TNGST Act should remain in operation, but for the purpose of giving effect to the 1992 Act, the said provision stood eclipsed. The intention of the Legislature could be gathered from the repealing Act No. 34 of 2004, which provided that on and from the date of commencement of the repeal of the 1992 Act, all the matters and proceedings pending before the Special Tribunal shall stand transferred to the High Court and the High Court shall proceed to deal with such matter or proceeding from the stage at which it is transferred or from any earlier stage or de novo as the High Court may deem fit. Per contra, it was contended by Mr. C. Natarajan, learned Senior Counsel for the assessee that the 1992 Act cannot be regarded as a standalone legislation. Section 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt' wherever they occur, the words 'Special Tribunal' had been substituted; (5) in section 36, in sub-section (3), for the words 'High Court' wherever they occur, the words 'Special Tribunal' had been substituted; (6) after section 36, the following section had been inserted, namely: '36A. Tribunals under article 323B of the Constitution for sales tax matters. It is hereby declared that the assessing authority referred to in clause (c) of section 2, the Appellate Assistant Commissioner referred to in section 31, the Deputy Commissioner referred to in sections 31A, 32 and 33, the Joint Commissioner of Commercial Taxes referred to in sections 34 and 35, the Appellate Tribunal appointed under section 30 and the Special Tribunal referred to in clause (nn) of section 2 shall be the hierarchy of Tribunals for the purposes of clause (3)(a) of article 323B of the Constitution for adjudication or trial of any dispute or complaint with respect to levy, assessment, collection and enforcement of sales tax matters arising under this Act'; (7) in section 37, (a) including the marginal heading, for the words 'High Court' wherever the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application, if the applicant furnishes sufficient security to its satisfaction, in such form and in such manner as may be prescribed'; (10) section 39 had been omitted; (11) in section 52, for the words 'High Court' the words 'Special Tribunal' had been substituted. From the above, it is amply clear that the above provision of the 1992 Act did not have the effect of bringing a direct amendment to the provisions of the Act textually. The words used as if are having a great significance. In Volume I of Stroud's Judicial Dictionary, 4th Edition, 1971, the words as if have been defined as follows: On the construction of an 'as if' clause 'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real consequences and incidences which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it...The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1986 was of the first type whereby amendments were sought to be introduced by means of an amendment to the parent Act, i.e., the General Sales Tax Act itself. However, the 1992 Act is an independent legislation. Section 24 of the Act falls partly as amendment through another independent legislation and partly amendment by incorporation and partly by use of legal fiction. There is actually no amendment carried out to the TNGST Act, but by fiction of use of the words as if , sections 37 and 38 have to be read as though the power of appeal and revision is vested upon the Special Tribunal and imagine so for the purpose of 1992 Act. No actual or real substitution of the word was carried out in the TNGST Act, but was to be imagined as if substituted for giving effect to the object of the 1992 Act, viz., for adjudication of the dispute by the special forum, i.e., the Special Tribunal, in matters arising under the specified State Act. So long as the 1992 Act remains in force, the words High Court in sections 37 and 38 of the TNGST Act stands eclipsed even while the words High Court actually remained intact in the TNGST Act. As regards section 39 of the TNGST Act, the words used as if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Act No. 42 of 1992 has now become operative and functional with full effect immediately on repeal of Act No. 42 of 1992. The eclipse created by 1992 Act has been now cleared. As consequence thereof, sections 37, 38 and 39, as they stood prior to coming into force of the Special Tribunal Act (Act No. 42 of 1992) have automatically revived. So far as the reliance of the decision of the Supreme Court by the learned Senior Counsel appearing for the assessee in the case of State of Bombay v. Salat Pragji Karamsi reported in AIR 1957 SC 517 is concerned, we are not able to accept the contention to take a different view. The relevant facts of the said case are that Kutch before 1948 was an Indian State. The Maharao of Kutch handed over the governance of the State to the Dominion of India on June 1, 1948, and thus it became a centrally administered area. On July 31, 1949, the then Central Government issued under section 4 of the Extra Provincial Jurisdiction Act (Act XLVII of 1947), an order called the Kutch (Application of Laws) Order, 1949. Under clause 3 of the said order certain enactments were applied to Kutch with effect from the date of the commencement of the order. One of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the 'Chief Commissioner of Kutch'; and the province or the 'Presidency of Bombay' as 'Kutch or any part thereof'. If the Bombay Act is so read, then at the time when the Constitution came into force the words Provincial Government or Government or Province or Presidency of Bombay were no longer in the Act which had become applicable to the State of Kutch. On the other hand, the words there must be taken to be 'Chief Commissioner of Kutch', and 'Kutch or any part thereof', respectively... We are of the considered view that the facts of the cited case are totally different than the one under consideration before us. There was no repeal of any of the order or Act in the cited decision so as to contend that the Provincial Government or Government or Province or Presidency of Bombay have come into existence again. However, in the case on hand, by means of 1992 Act, certain changes were brought out to the effect that wherever the words High Court come in the TNGST Act, they shall have the effect as if the words Special Tribunal had been substituted, i.e., had been repealed with effect from July 13, 2005. As already stated, the construing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislature is clear that on the coming into force of the repeal of Act No. 42 of 1992, the original provisions that were eclipsed during the currency of 1992 Act have again come into operation, in the sense, the superimposition of the words Special Tribunal for the words High Court , faded out by giving way to the words High Court and the High Court has jurisdiction to entertain appeal or revision filed under sections 37 and 38 of the Act. By means of re-introduction of section 39, the same has to be considered by a Division Bench of the High Court. For the foregoing reasons, we are of the considered view that on and from the date of repeal of 1992 Act, the High Court will have jurisdiction to entertain appeal or revision under sections 37 and 38 of the TNGST Act, 1959, as the provisions re-emerged as they stood prior to the coming into force of the 1992 Act. The order, which is impugned in this review application, has to be set aside and accordingly the same is set aside. Of course, we are having some reservation about the reasoning of the order dated April 1, 1999 made in T.C. Nos. 37, 38 and 115 of 1998 Mahashree Aruna Chemicals v. State of Tamil Nadu.But we are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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