TMI Blog2015 (12) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 6 of the General Clauses Act. The line of inquiry is not whether the new enactment expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them (State of Punjab Vs Mohar Singh [1954 (10) TMI 38 - SUPREME COURT OF INDIA] followed in Gammon India Ltd Vs Special Chief Secretary [2006 (2) TMI 278 - SUPREME COURT OF INDIA]. In other words, whenever there is a repeal of an enactment the consequences which are enunciated in Section 6 of the U P General Clause Act - in relation to the State of Uttar Pradesh - will follow unless a different intention appears in the repealing statute. Where the repeal has been followed by fresh legislation on the same subject, the purpose of considering the provisions of the new legislation is to determine whether they indicate a different intention. In the State of Uttar Pradesh, a revisional power has been conferred on the Commissioner both under the erstwhile UP Trade Tax Act as well as under the UP VAT Act which repealed the former Act. Moreover, as we have noticed earlier, the revisional power in Section 56 of the UP VAT Act is pari materia with that which is contained in Section 10-B of the erstwhile A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DGMENT ( Per : Dr D Y Chandrachud, Chief Justice ) On 25 February 2015, a learned Single Judge has referred the following questions of law for adjudication by the Full Bench: 1. Whether in view of the judgments of the Supreme Court in Hari Shanker versus Rao Girdhari Lal Chowdhury AIR 1963 SC 698 and Shiv Shakti Cooperative Housing Society versus Swaraj Developers (2003) 6 SCC 659 declaring the power of revision as not a substantive right but merely an enabling provision, the provision for a revision under Section 10B of the U.P. Trade Tax Act, 1948 would on the repeal of that Act not be saved under Section 81 (2) of the U.P. Value Added Tax Act, 2008; and 2. Whether the view expressed by the Division Benches of this Court in Dharma Rice Mill versus State of U.P. 2010 UPTC 648 and Kumar Rice Mills versus State of U.P. 2010 UPTC 1594 taking a contrary view lay down the correct law, having been expressed upon non-consideration of the judgments of the Supreme Court in the case of Hari Shanker versus Rao Girdhari Lal Chowdhury (supra) and Shiv Shakti Cooperative Housing Society versus Swaraj Developers (supra). The facts in the context of which the revision arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revisionist. The Tribunal relied upon two decisions of the Division Benches of this Court in Dharma Rice Mill Vs State of U P 2010 UPTC 648 and in Kumar Rice Mill Private Limited Vs State of UP 2010 UPTC 1594 to hold that even after the repeal of the UP Trade Tax Act on 1 January 2008, the power under Section 10-B could be exercised by the Joint Commissioner and the Assessing Authority could be directed to examine the circumstances in which the wheat was sold by the revisionist. When the revision preferred by the revisionist against the decision of the Tribunal came up before a learned Single Judge, the submission which was urged on behalf of the revisionist was that the view which was taken by the Division Benches of this Court in Dharma Rice Mill (supra) and Kumar Rice Mill (supra) failed to notice that the provision for a revision in Section 10-B of the UP Trade Tax Act was in the nature of an enabling provision and is not a substantive right. Reliance was sought to be placed on the ambit of the remedy of a revision as enunciated in the decisions of the Supreme Court in Hari Shankar Vs Rao Girdhari Lal Chowdhury AIR 1963 SC 698 and Shiv Shakti Co-op Housing Society Vs Swa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made, has come to an end. In the meantime, the UP VAT Act came into force on 1 January 2008. The power of revision is part and parcel of the process of rendering a correct assessment and if any illegality remains, it can be cured in the form of the exercise of the revisional power by the Commissioner. These submissions fall for consideration. Section 10-B of the UP Trade Tax Act provides for a revision by the Commissioner. Section 10B was in the following terms: Section 10-B. Revision by Commissioner. (1) The Commissioner or such other Officer not below the rank of Deputy Commissioner as may be authorised in this behalf by the State Government by notification may call for and examine the record relating to any order (other than an order mentioned in section 10-A) passed by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order with respect thereof as he thinks fit. (2) No order under sub-section (1) affecting the interest of a party adversely shall be passed unless he has been given a reasonable opportunity of being heard. (3) No order under sub-section (1), shall be passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 48 respectively. (4) Any order made or direction issued by the State Government or by the Commissioner under the repealed Act, for carrying out purposes thereof, to the extent the same are not inconsistent with the provisions of this Act, shall be deemed to have been issued under the provisions of this Act. (5) Any security or additional security, furnished under the provisions of the repealed Act, shall be deemed valid for the purposes under this Act only upon furnishing an undertaking from the surety to this effect in the prescribed form and manner within thirty days from the date of the commencement of the Act: PROVIDED that, in appropriate cases, the assessing authority may extend the time for furnishing undertaking from sureties. (6) The mention of particular matters in this section shall not be held to prejudice or affect general application of Section 6 of the Uttar Pradesh General Clauses Act, 1904, with regard to the effect of repeals. Section 56 of the UP VAT Act provides for the remedy of a revision to the Commissioner and is in the following terms: Section 56. Revision by the Commissioner.-- (1) The Commissioner or such oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, rules, regulations, orders or notices issued; (ii) any appointment or declaration made; (iii) a confiscation made; and (iv) any penalty or fine imposed under the Trade Tax Act. Clause (a) also stipulates that any forfeiture, cancellation or any other thing done or action taken under the repealed enactment which is in force immediately before the commencement of the UP VAT Act shall, insofar as it is not inconsistent with the provisions of the latter Act, be deemed to have been issued, made, granted, done or taken under the provisions of the new Act. Clause (b) of sub-section (2) of Section 81 stipulates that a right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act shall not be affected. The emphasis is on the expressions acquired, accrued or incurred. Sub-section (3) inter alia provides that an officer who has been authorized by the Commissioner under the repealed enactment to exercise powers under Section 10-B shall be deemed to have been authorized by the Commissioner to exercise such powers under Section 56. Sub-section (6) of Section 81 provides that the general application of Section 6 of the U P General Clauses Act 1904 with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Act has not been passed. Clause (e) refers to a remedy, investigation or legal proceeding. A remedy in respect of a right, privilege, obligation or liability acquired, accrued or incurred may be enforced even after the repeal of the UP Trade Tax Act. If an investigation or legal proceeding has commenced before the repealing Act came into operation, the investigation or legal proceeding may be continued and concluded. Justice G P Singh in his seminal treatise on the Interpretation of Statutes observes that: The effect of clauses (c) to (e) of Section 6, General Clauses Act is, speaking briefly, to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. 13th edition 2012 p. 710 In Bansidhar Vs State of Rajasthan (1989) 2 SCC 557, a Constitution Bench of the Supreme Court considered the question as to whether proceedings for fixation of a ceiling area with reference to the appointed date under Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to apply for renewal and to get a favourable order would not e deemed to be a right accrued unless some positive acts are done, before repeal of Act 4 of 1939 or corresponding law to secure that right of renewal. At para 42 p 672 In Ambalal Sarabhai Enterprises Ltd Vs Amrit Lal Co (2001) 8 SCC 397, a Bench of two learned Judges of the Supreme Court construed the provisions of the Delhi Rent Control Act under which the landlord had filed an eviction petition against the tenant on the ground of subletting. During the pendency of the petition, an amendment was made which excluded the jurisdiction of the Rent Controller with respect to tenancies fetching a monthly rent exceeding ₹ 35,000/-. Following this, the tenant contended that it was only the civil court which had the jurisdiction after the amendment and not the Rent Controller. The Supreme Court held as follows: At the most, such a provision can be said to be granting a privilege to the landlord to seek intervention of the Controller for eviction of the tenant under the statute. Such a privilege is not a benefit vested in general but is a benefit granted and may be enforced by approaching the Controller in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. When the repeal is followed by a fresh legislation on the same subject, the court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. The object of repeal and re-enactment is to obliterate the repealed Act and to get rid of certain obsolete matters. Applying this principle, the Supreme Court made a distinction between a situation where the effect of a repeal is to obliterate the statute and to destroy its operation in future or to suspend the operation of the common law on the one hand and on the other hand a situation where a repeal does not contemplate either a substantive common law or statutory right but merely a procedure is prescribed. The Supreme Court held as follows: 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to law. Under s. 115 of the Code of Civil Procedure. the High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit. (emphasis supplied) The same principle was enunciated in a subsequent decision in Shiv Shakti Co-op Housing Society (supra) where it was held that whereas the right of appeal is a substantive right, there is no such substantive right under Section 115 of the Code of Civil Procedure. Section 115, it was held, is essentially a source of power for the High Court to supervise the subordinate courts and does not confer a right on a litigant aggrieved by an order of a subordinate court to approach the High Court for relief. The scope for making a revision under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision is in the nature of an enabling provision and is not in the nature of a substantive right. In every case where a legislation has been repealed by a subsequent enactment and the nature and ambit of a savings provision in the later enactment falls for construction, it is necessary to have due regard to the intent expressed by the legislature while enacting the subsequent legislation. The intent of the legislature is gathered from the statutory provisions. An instance where this came up for consideration was before the Delhi High Court in International Metro Civil Contractors Vs Commissioner of Sales Tax/VAT [2008] 16 VST 329 (Delhi). Following an order of assessment under the Delhi Sales Tax Act, the assessee applied for a refund which was rejected. A notice of reassessment was issued following which an order of reassessment was passed. The rejection of the refund application and order of reassessment were challenged before a Division Bench. The Division Bench set aside both the orders and directed the Commissioner to pass appropriate orders on the refund application. The Commissioner passed an order by which he came to the conclusion that the original order of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling Act was in force on that day and the powers and jurisdiction of the authorities under the repealing Act must also be deemed to have been in force on the date when that order was passed. But, it must be remembered that the DVAT Act did not provide for any revisionary power and so, no such power or jurisdiction was available on the date of the assessment order, if the deeming fiction is taken to its logical conclusion. At para 67 p 352 The Court clarified, however, that it was not necessary to go to that extent because the next issue which required consideration was whether the right or entitlement of the revenue, if any, to revise an order of assessment was saved by the Delhi VAT Act. This was answered in the negative, relying upon the decisions of the Supreme Court in Hari Shankar (supra) and Shiv Shakti Co-op Housing Society (supra). The Delhi High Court held as follows: The power of revision is an enabling power available to a superior authority to correct an error committed by a subordinate authority. Shiv Shakti [2003] 6 SCC 659 is not limited in its application to Section 115 of the Code of Civil Procedure but follows the law earlier laid down, generally, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration before the Division Bench of the Delhi High Court in International Metro Civil Contractors (supra) must clearly be distinguished from the provisions contained under the UP VAT Act which applies in the State of Uttar Pradesh. Unlike the situation which prevailed under the Delhi VAT Act, a power of revision is and has been available at all material times under Section 10-B of the UP Trade Tax Act as well as under Section 56 of the UP VAT Act. In Delhi, until the legislature intervened to incorporate it under Section 74A subsequently, there was no conferment of a revisional power on the Commissioner. In the State of Uttar Pradesh, a revisional power has been conferred on the Commissioner both under the erstwhile UP Trade Tax Act as well as under the UP VAT Act which repealed the former Act. Moreover, as we have noticed earlier, the revisional power in Section 56 of the UP VAT Act is pari materia with that which is contained in Section 10-B of the erstwhile Act save and except that now an authorisation for the exercise of the power by the Joint Commissioner is to be made by the Commissioner and not by the State Government as was the case under the previous legislation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 6 of the Uttar Pradesh General Clauses Act 1904 with regard to the effect of repeals. Hence, not merely is there no expression of a different intention by the legislature to exclude the application of the Uttar Pradesh General Clauses Act but, on the contrary, a specific provision has been made in Section 81(6) to protect the application of the U P General Clauses Act, 1904. A decision which has an important bearing on the subject matter of the present case is that rendered by three Hon'ble Judges of the Supreme Court in Swastik Oil Mills Ltd Vs H B Munshi, Deputy Commissioner of Sales Tax, Bombay AIR 1968 SC 843. The appellant was registered as a dealer under various Sales Tax Acts which were in force in Bombay and was assessed to sales tax on its turnover. The appellant claimed an exemption from tax in respect of its turnover representing the despatches or transfers of goods from its head office to various depots or branches in other States and in respect of sales allegedly in the course of inter-state trade after 26 January 1950. Both the claims were rejected by the Assessing Officer but were partially allowed by the first appellate authority. Revisions filed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or liability as aforesaid and any such remedy may be enforced as if the repealing Act has not been passed. Now, undoubtedly, Section 6(e) refers to such right, privilege, obligation, liability . . as aforesaid . In other words, the remedy which is referred to in clause (e) is in respect of a right, privilege, obligation or liability of the nature which is referred to in clause (c). Clause (c) refers to a right, privilege, obligation or liability which is acquired, accrued or incurred. We must proceed on the basis that the remedy of a revision is in the nature of an enabling provision and is not in the nature of a substantive right, as has been held in the judgments of the Supreme Court in Hari Shankar (supra) and Shiv Shakti Co-op Housing Society (supra). That, however, is not conclusive of the matter because the remedy which is saved by Section 6(e) is also in respect of a privilege, obligation or liability which is acquired, accrued or incurred. Under the provisions of the UP Trade Tax Act, Section 3(1) imposes upon every dealer for each assessment year the liability to pay tax at the rates provided by or under Sections 3-A, 3-D or Section 3-H on the turnover of sales or purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a revision in respect of an assessment made under the UP Trade Tax Act is saved notwithstanding the repeal. In Universal Imports Agency Vs Chief Controller of Imports and Exports AIR 1961 SC 41, a Constitution Bench of the Supreme Court, while considering the ambit of repealing and saving legislation, has held that: ...This case illustrates the point that it is not necessary that an impugned thing in itself should have been done before the Act was repealed, but it would be enough if it was integrally connected with and was a legal consequence of a thing done before the said repeal... The nature of the power of revision in such cases involving fiscal legislation has fallen for consideration before the Supreme Court in Raymond Ltd Vs State of Chhattisgarh (2007) 3 SCC 79 in the context of Section 56 of the Stamp Act 1899 as amended, in relation to the State of Madhya Pradesh. Under sub-section (2) of Section 56, if any Collector acting under stipulated provisions has a doubt as to the amount of duty with which any instrument is chargeable, he can draw up a statement of the case and refer it with his own opinion for the decision of the Chief Controlling Revenue Authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of the authority to ensure that the assessment has been carried out in accordance with law. This imposes a corresponding obligation and liability on the assessee where it is found that the assessment was otherwise than in accordance with law. One cannot be disassociated from the other. Undoubtedly, there is a difference in the language of Section 6 of the General Clauses Act 1897 and Section 6 of the U P General Clauses Act 1904. However, we are of the view that this distinction in the language will have no practical meaning or consequence to the construction which has been placed by us on the provisions of the repealed and the repealing legislation. For these reasons, we come to the conclusion that the judgments of the two Division Benches of this Court in Dharma Rice Mill (supra) and Kumar Rice Mills (supra), insofar as they hold that the remedy of a revision against an order of assessment under the UP Trade Tax Act provided to the Commissioner under Section 10-B survives the repeal lay down the correct principle of law. The remedy is saved by virtue of the provisions of Section 81 of the Uttar Pradesh Value Added Tax Act 2008 read with Section 6 of the Uttar Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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