TMI Blog2018 (3) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... a Bus under any contract, is the goods specified in the schedule, and thus to be exempted from the applicability of tax. Such a notification would not become inconsistent only because the right of tax payable for the transaction in the Act of 2008 is different from the rates specified in the Act of 1948. In Central Indian Machinery Manufacturing Co. Ltd. Vs. State of M.P. and another, [1997 (1) TMI 549 - SUPREME COURT], a question arose regarding continuance of notification under a repealed Act on the ground that a deduction of 10% towards statutory allowance was contemplated in lieu of cost of repair etc. from the gross annual letting value. The High Court had observed that for such reasons, the notification issued under the repeal Act would not become wholly inconsistent with the new Act. Notification dated 14.11.2000, issued under the Act of 1948, is not inconsistent with the Act of 2008, and therefore, the notification would continue to subsist and would be deemed to have been issued under the Act of 2008, by virtue of Section 81(2)(a). Revision allowed - decided in favor of assessee. - Sales/Trade Tax Revision No. 37 of 2018 - - - Dated:- 21-2-2018 - Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the U.P. VAT Act and that the authorities, as also the Tribunal, have erred in taking a contrary view. Learned counsel submits that the notification dated 14.11.2000 is not inconsistent with the U.P. VAT Act and therefore would be deemed to have been issued under the U.P. VAT Act. 5. Sri A.C. Tripathi, learned Standing Counsel for the Revenue, submits that taxing scheme between the Act of 1948 and the Act of 2008 are distinct, and the Tribunal is justified in holding that the notification dated 14.11.2000 is inconsistent with the Act of 2008. Reliance is placed upon a Division Bench judgment of this Court in M/s Dharma Rice Mill Vs. State of U.P. and others, reported in 2010 U.P.T.C. 648. The ratio laid down in Dharma Rice Mill (supra) is contained in Para 17, which is reproduced:- 17. In view of aforesaid facts and circumstances, we are of the considered opinion that the U.P. Value Added Tax Act while repealing the U.P. Trade Tax Act in its entirety keeps alive the old rights, liabilities and the remedies under the repealed enactment and, as such, the impugned notice for revising the order of assessment is not without jurisdiction. However, it will be open for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. KA. NI.-2-3736/XI-9 (28)/2000-U.P. Act-15-48-Order-(46)-2000, dated 14th November, 2000:- U.P. TAX CASES, 2001 Volume I Acts, Rules, Ordinances, Notifications and Circulars [1] English Translation of Government Notification No. KA. NI.-2-3736/XI-9(28)/2000-U.P.Act-15-48-Order-(46)-2000, dated 14th November, 2000. In exercise of the powers under sub-section (1) of Section 3-F of the Uttar Pradesh Trade Tax Act, 1948 (U.P. Act No.15 of 1948) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No.1 of 1904), and in supersession of Government Notification No. T.I.F.-2-2379/XI-9(251)/97-U.P. Act-15-48-Order-98, dated 23rd November, 1998 as amended from time to time, the Governor is pleased to declare that with effect from 15th November, 2000 every dealer to whom sub-section (3) of Section 3 applies, and every other dealer the aggregate of whose turnover in a year relating to the business of transfer of the right to use the goods, excluding the goods specified in the following Schedule, exceeds one lakh rupee, shall, in respect of such turnover, which shall be determined in the manner specified in Rule 44-C of the Uttar Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 3-F(1) of the Act. Power of exemption from payment of tax is conferred upon the State under Sections 4 and 4-A of the Act of 1948, hedged by the use of phraseology therein. This Court is not required to dwell upon the limitations in exercise of such power in this case. On facts, the notification has been issued and admittedly continued to remain in operation till the Act of 1948 got repealed and substituted by the Act of 2008. 13. The scheme of 2008 Act, therefore, needs to be analyzed, so as to find out as to whether the notification dated 14.11.2000 is consistent with it. The definition of sale occurring in the Act of 2008 is similar, insofar as transfer of right to use is concerned. Section 2(ac)(iv) is reproduced hereinafter:- 2(ac) sale with its grammatical variations and cognate expressions, means any transfer of property in goods (otherwise than by way of a mortgage, hypothecation, charge or pledge) by one person to another, for cash or for deferred payment or for any other valuable consideration and includes, - (iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er this Act shall be levied and paid on the turnover of- (a) sale or purchase where such sale or purchase takes place - (i) in the course of inter-state trade or commerce; or (ii) outside the State; or (iii) in the course of the export out of or in the course of the import into, the territory of India; (b) sale or purchase of any goods named or described in column 2 of the Schedule-I of this Act or; (c) such sale or purchase; or sale or purchase of such goods by such class of dealers, as may be specified in the notification issued by the State Government in this behalf: Provided that while issuing notification under clause (c), the State Government may impose such conditions and restrictions as may be specified. Explanation: For the purposes of this Act, sections 3, 4 and 5 of the Central Sales Tax Act, 1956, shall apply respectively for determining whether or not a particular sale or purchase of any goods falls under any of the sub-clauses (i), (ii) and (iii) of clause (a). (emphasis supplied) 18. While sale or purchase of goods named and described in Column 2 of Schedule-I of the Act of 2008 is exempted from payment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longer applicable after the repeal of the said Act by the 1954 Act and that the said notification was not continued by the saving clause aforementioned on the ground that the provisions of the Gwalior Act were inconsistent with the provisions of the 1954 Act. While dealing with the said contention the High Court has held that Section 52(1) of the Gwalior Act authorised the imposition of house tax on buildings situate within the municipal limits and it also provided that the house tax shall not exceed 4% of the gross annual letting value of the building while under Section 69(1)(i) of the 1954 Act, municipalities have been authorised to impose a tax on houses and buildings or lands situate within the municipal limits and that under Section 73 of the 1954 Act the tax is to be assessed on the net annual letting value after deducting a statutory allowance of 10% in lieu of costs of repairs etc. from the gross annual letting value. The High Court has observed that the notification issued under the Gwalior Act cannot be said to be wholly inconsistent with the 1954 Act and that the inconsistency is only to the extent that the 1954 Act permits a statutory allowance of 10% of the gross ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2008(5) ALD 787, had an occasion to examine a similar controversy in respect of banking of electricity. The term 'inconsistent' has been examined to hold that unless the new enactment manifested an intention to destroy the rights and liabilities created by the repealed Act, such rights are saved. The provisions of Section 6 of the General Clauses Act, 1904 have also been taken note of. Paras 14 to 23 of the judgment are reproduced:- 14. From a plain reading of the above mentioned provision, it is clear that unless the document or instrument executed under the repealed Act is inconsistent with the provisions of the 2003 Act, the agreements entered into by the petitioners for banking and wheeling are saved. 15. Sri O. Manoher Reddy contended that under the 2003 Act there is a complete change with respect to making tariff regulation and determination of tariff. According to him, the fact that the Commission is vested with these powers under Part-VII, unlike such powers being vested in the SEBs and the Licensees which succeeded to the SEBs under the repealed Acts, shows that the agreements entered into by the erstwhile Board/Licensees with the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy the rights and liabilities created by the repealed Act, such rights are saved notwithstanding the repeal of the earlier enactment. 19. In State of Punjab v. Mohar Singh AIR 1955 SC 84, the Supreme Court while disagreeing with the observations of Sulaiman, C.J, in Danmal Parshotamdas v. Baburam Chhote Lal MANU/UP/0139/1935 : AIR1936All3 - that where there is a new law which not only repeals the old law, but is substituted in place of the old law, Section 6(e) of the General Clauses Act is not applicable, observed as under: These observations could not undoubtedly rank higher than mere 'obiter dictum' for they were not at all necessary for purposes of the case, though undoubtedly they are entitled to great respect. In agreement with this dictum of Sulaiman, C.J., the High Court of Punjab, in its judgment in the present case, has observed that where there is a simple repeal and the legislature has either not given its thought to the matter of prosecuting old offenders, or a provision dealing with that question has been inadvertently omitted, Section 6 of the General Clauses Act will undoubtedly be attracted. But no such inadvertence can be presumed where them ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old rights and liabilities is to be ascertained this Court in State of Punjab v. Mohar Singh MANU/SC/0043/1954: 1955CriLJ254 said: Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new Law and the mere absence of a saving clause is by itself not material. The provisions of Section 6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course,,...the consequences laid down in Section 6 of, the Act will apply only when a statute or regulation having the force of a statute is actually repealed. 21. In Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector ET MANU/SC/2333/2007: AIR2007SC1984 , the Supreme Court while considering the effect of T.N. Tax on Consumption or Sale of Electricity Act, 2003, which repealed the Tamil Nadu Electricity Duty Act, 1939 and the Tamil Nadu Electricity (Taxation on Consumption) Act, 1962, held that exemption from tax is a vested right and such a right having been accrued or vested, the same can be taken away only by reason of a Statute and not otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the provisions of the 2003 Act are saved by the provisions of Sub-sections (2) and (5) of Section 185 of the said Act. These contentions are answered accordingly. 24. Sri Rahul Agarwal has laid emphasis upon the expression of the natives in re R. reported in 1906 (1) Chancery Division p.730, reproduced hereinafter:- Where you have a repeal and you have also a saving clause, you have to consider whether the substituted enactment contains anything incompatible with the previously existing enactment. The question is, Aye or No, is there incompatibility between the two? And in those cases the judges, in holding that there was a saving clause large enough to annul the repeal, said that you must see whether the true effect was to substitute something incompatible with the enactment in the Act repealed; and that, if you found something in the repealing Act incompatible with the general enactments in the repealed Act, then you must treat the jurisdiction under the repealed Act as pro tanto wiped out. 25. The aforesaid observation has been followed by a Division Bench of Rajasthan High Court in Kamal Kishore Vs. State of Rajasthan, reported in 2008 (1) ILR (Raj) 478, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken under this Act. 8. A reference to Section 1(3)(ii) of the new Act would show that these provisions were not made applicable to the non-residential buildings completed after March 31, 1962. Thus the civil suit filed by the landlord-Respondent was properly entertained by the Sub-Judge 1st Class, Fatehabad, on August 2, 1973. The same was decreed by him on September 30, 1976. If the matters had rested here, no objection could have been raised against the jurisdiction exercised by the learned trial Court. However, the new Act was amended by the Haryana Urban (Control of Rent and Eviction) Amendment Act, 1978, which received the assent of the Governor of Haryana on April 25, 1978. By Section 2 of this Amendment Act, Sub-section (3) of Section 1 of the new Act was recast and all buildings completed after the coming into force of the new Act were exempted from its operation for a period of ten years. On the basis of this provision, it has been argued on behalf of the Appellant that the earlier exemption granted either under the notification, dated October 22, 1971, or under Section 1(3)(ii) of the new Act has been taken away. According to Mr. Mohunta, this Court had to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also imagine as real the consequences and incidents 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 affairs. 11. In other words, on April 25, 1973, the date on which Haryana Act No. 11 of 1973 was enacted, two important events occurred. Firstly, the old Act was repealed and secondly, the buildings constructed after the coming into force of Act were exempted from the provisions of the said Act for a period of ten years. We have to consider whether the notification issued by the Governor of Haryana on October 22, 1971, exempting the buildings constructed during the years 1968, 1969 and 1970 remained in force or not. The answer to this question is provided by Section 22 of the Punjab General Clauses Act, 1898. It reads as under: Where any Punjab Act is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and after the coming into force of the Act formed two distinct classes and the provisions made for these two classes can stand side by side. We are accordingly of the view that the amendment of the new Act brought about in the year 1978 did not affect the validity of the notification, dated October 22, 1971, issued by the Governor of Haryana under the old Act and the same continues to be in force either under Section 22 of the Punjab General Clauses Act, 1898, or under Section 24(2) of the new Act. When looked at either way, there appears to be no merit in the claim of the Appellant that the Civil Courts had no jurisdiction to entertain the suit out of which the present appeal arises. 26. In Brihan Maharashtra Sugarsyndicate Ltd. Vs. Janardan Ramchandra Kulkarni and others, reported in AIR 1960 SC 794, the effect of Sections 6 and 24 of the General Clauses Act was examined to emphasize that what needs to be ascertained is the intention to destroy the rights created under the repealed Act, and if that is not inferred from the substituted Act, then the notification would continue. Para 9 of the judgment is reproduced:- 9. We are unable to accept these contentions. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said notification issued under Section 15 thereof can still be said to be operative? Section 46(1) of the Arms Act, 1959 repealed the preceding Act of 1878. Its sub-section (2) provides that notwithstanding such repeal and without prejudice to sections 6 and 24 of the general clauses act 10 of 1897 a licence granted under the repealed Act and in force immediately before the commencement of the new Act shall continue, unless sooner revoked, for the unexpired period for which it had been granted or renewed. Section 46(2) thus saves only licences issued under the Arms Act. 8. Section 6(b) of General clauses Act, however, provides that where any Central Act or regulation made after the commencement of the Act repeals any earlier enactment, then, unless a different intention appears, such repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder . Section 24 next provides that where any Central Act is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any notification issued under such repealed Act shall, so far as it is inconsistent with the provisions re-enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. Such continuance exists till the statutory instrument is superseded by a statutory instrument issued under the re-enacted provisions. 22. It is, therefore, necessary to see whether the notification dated 31st March, 1949, issued under the Act of 1947 is inconsistent with the re-enacted provisions of the Act of 1972. Obviously, if the 1949 notification cannot stand along with the re-enacted provisions and is inconsistent with them, it cannot be said to have been continued in force by virtue of Section 24 of the U. P. General Clauses Act, 1904. The Governor of the erstwhile United Provinces, through the said notification, simply declared that the provisions of Sections 2, 3 (a), 4, 5, 6 etc. shall apply to Doiwala town in Dehradun district. The effect of this notification thus, was that the protection to the tenants offered by Section 3 (a) i.e. the restrictions on eviction, applied to Doiwala town. 23. We find nothing inconsistent between the protection accorded to the tenants under the Act of 1947 as applied to Doiwala town by the notification dated 31st March, 1949, and the protection accorded to the tenants in the re-enacted provision of the Act of 1972, both of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench judgment of our Court in Dharma Rice Mill (supra) is concerned, the Division Bench was confronted with Section 81(2)(b) and not Section 81(2)(a) of the Act of 2008. The Division Bench judgment has been approved by a Full Bench of our Court in Ram Sewak Madan Mohan Vs. The Commissioner, Commercial Taxes, U.P. Lucknow, reported in (2016) 60 NTN DX 348, to hold that the power of revision under both the enactments continues to subsist. Para 35 of the Larger Bench Judgment in Ram Sewak Madan Mohan (supra) is reproduced:- 35. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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