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2015 (4) TMI 194

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..... nt interest. It is clear from a reading of Section 4B of the West Bengal Rural Employment and Production Act and Section 78C of the West Bengal Primary Education Act that where any sum is paid by or collected from an owner of a tea estate during a period commencing from 01.04.1981 or 14.04.1984, as the case may be, up to the date of the Amendment Act as rural employment cess or as education cess, such portion of the said sum as may become payable under the provisions of the Amendment Act shall, notwithstanding any judgment, decree or order of any court, be deemed to have been validly levied, paid or collected under the Amendment Act. This being the case, it is clear that Section 4B and Section 78C have changed the basis of the law as it existed when Buxa Dooars Tea Company Ltd.'s case was decided and consequentially, the judgment and interim order passed in Buxa Dooars Tea Company Ltd.'s case will cease to have any effect. Also, what would have been payable under the Act as unamended, is now payable only under the 1989 Amendment Act which has come into force with retrospective effect. In the present case, the 1989 amendment Act expressly seeks to remove the basis of Buxa .....

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..... dent herein is entitled to a refund of the cess paid by it together with interest at 12 per cent per annum, and has further found that insofar as interest is payable after the Amendment Act is concerned, such interest would only be payable after assessment orders are passed (which on facts here, we are informed, were passed on 27.07.1993 and thereafter).By an interim order dated 16.06.1983 in the Buxa Dooars Tea Company Ltd.'s case, this court held as hereunder: - Rule NISI. There will be no order on stay application but if the petitioner succeeds in the writ petition, the State of West Bengal will refund the amount of cess collected with interest thereon @ 12% per annum from the date of collection. By the judgment delivered in Buxa Dooars Tea Company Ltd.'s case in 1989, this Court held that the charging sections under both the aforesaid Acts were invalid both on the ground of legislative competence as well as violation of Article 301 inasmuch as the impugned legislative measures were outside Entry 49 in List II of the Seventh Schedule of the Constitution, which speaks of taxes of lands and buildings ; and it was further held that the levy being on movement of g .....

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..... terim order dated 16.06.1983 in the Buxa Dooars Tea Company Ltd.'s case did not survive as it was substituted by the final order in the Buxa Dooars Tea Company Ltd.'s case, which is to be found in Para 16 thereof, which stated that the two West Bengal Acts were declared void and consequential refund ordered. There was no separate order as to payment of interest in the final judgment and therefore the interim order which merges with the final judgment had no independent existence. He has also urged that since the two West Bengal Acts were amended in 1989 with retrospective effect from 1981 and 1984 respectively, the basis of the judgment in Buxa Dooars Tea Company Ltd.'s case was removed and as a result, it is clear that no refund at all is payable. Mr. C. U. Singh, learned senior counsel appearing on behalf of the respondent, on the other hand, supported the judgment on both counts and submitted that the levy under the original Act no longer remained the same, so that the levy under the 1989 amendment was a separate and new levy of rural employment cess and education cess, and this being the position, the interim order as well as the final judgment in Buxa Dooars T .....

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..... review, by any authority, or any appeal or application for revision or review has been made before such authority under this Act, or any order has been passed by a court or where any sum has been paid or collected as rural employment cess, before the coming into force of the West Bengal Taxation Laws (Second Amendment) Act, 1989, in respect of any period prior to the coming into force of the said Act, assessment or fresh assessment shall, notwithstanding such order on appeal, revision or review, or the pendency of such appeal or application for revision or review, or any order passed by a court, be made in accordance with the provisions of this Act within four years from the date of coming into force of the said Act. (3) Notwithstanding anything contained in this Act, any default by an owner of a tea estate to make payment of the rural employment cess or to apply for registration or to file return in accordance with the provisions of this Act after the coming into force of the West Bengal Taxation Laws (Second Amendment) Act, 1989 in respect of any period prior to the coming into force of the said Act shall not be deemed to be a contravention of such provisions if such owner makes .....

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..... Taxation Laws (Second Amendment) Act, 1989, in respect of any period prior to the coming into force of the said Act, assessment or fresh assessment shall, notwithstanding such order on appeal, revision or review or the pendency of such appeal or application for revision or review or any order passed by any court, be made in accordance with the provisions of this Act within four years from the date of coming into force of the said Act. (3) Notwithstanding anything contained in this Act, any default by an owner of a tea estate to make payment of the education cess or to apply for registration or to file return in accordance with the provisions of this Act after the coming into force of the West Bengal Taxation Laws (Second Amendment) Act, 1989 in respect of any period prior to the coming into force of the said Act shall not be deemed to be a contravention of such provisions if such owner makes payment of such education cess within three months or applies for registration within one month or files return within six months, as the case may be, from the date of coming into force of the said Act. (4) The amount of the education cess payable by any owner of a tea estate under sub-secti .....

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..... retrospective effect. Mr. C. U. Singh, however, referred us to 'Madan Mohan Pathak v. Union of India and others' [1978 (3) SCR 334] and in particular to Justice P. N. Bhagwati's judgment thereof, in which it has been decided by this Court that a Legislative Act cannot directly undo a writ of mandamus that is granted by an order of a superior court. We are of the view that Madan Mohan Pathak's case would not apply to the facts in the present case for the simple reason that what has been undone by Section 4B and Section 78C is not a mandamus issued by a superior court. What is undone is the very basis of the judgment in Buxa Dooars Tea Company Ltd.'s case by retrospectively changing the levy of rural employment cess and education cess. It must be understood that rural employment cess and education cess continue to be the same cess whether before or after the Amendment Act. What has been changed is the basis for the said levy so as to undo the defects that were found in the Buxa Dooars Tea Company Ltd.'s case judgment. It is obvious that when the basis of Buxa Dooars Tea Company Ltd.'s case has gone, on a retrospective amendment of these two acts, the .....

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..... learned Chief Justice intended to lay down the law that mandamus issued by court cannot at all be made ineffective by a valid law made by the legislature, removing the defect pointed out by the court. This statement of law has been accepted in yet another judgment of this Court. (See: State of Kerala v. Peoples Union for Civil Liberties, Kerala State Unit Ors., [(2009) 8 SCC 46 at paragraph 65]. Bhagwati, J.'s judgment in Madan Mohan Pathak also makes it clear that Section 3 of the impugned Act in that case sought to modify a settlement dated 24th January, 1974 arrived at between the LIC and its employees. There was no reference to a Mandamus issued by the Calcutta High Court in the Statement of Objects and Reasons as a result of which Section 3 of the impugned Act did not contain a non-obstante clause referring to any judgment of any court. The right given under the said judgment was therefore not sought to be taken away by the impugned Act. Further, inexplicably, the Letters Patent Appeal filed by the LIC was not pressed as otherwise Section 3 of the impugned Act would only have to be applied to the facts in that case to upset the Single Judge judgment that had issued .....

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