ivil Appeal Nos
953 954 NT 1975
From the Judgment and order dated the 15th February 1974 of the High Court of Allahabad in Civil Misc
Writ Petitions Nos 6904 and 6906 of 1973
SC Manchanda and AK Srivastava for the Appellants
Harish N Salve Mrs AK Verma J Peres and DN Mishra for the Respondent
The Judgment of the Court was delivered by RANGANATHAN J
These are two appeals by certificate from the common order
dated 15274 of the Allahabad High Court in Civil Miscellaneous Petition Nos
6904 and 6906 of 1973
They can be disposed of together since the question raised is the same
This common question arises out of the assessment to central sales tax of the respondent oriental Coal Corporation of Moradabad hereinafter referred to as the assessee for the assessment year 1967 68 and 196869
The relevant facts bearing on the controversy may be briefly stated
The assessee is a firm of coal merchants with its place of business in Jharia Bihar State and an office at Moradabad in UP
It is not registered either under the Central or the State Sales Tax Act
According to the assessee it places orders for coal on the collieries at Jharia on behalf of constituents in Uttar Pradesh realises the sale proceeds and remits the same to Jharia
The Sales Tax officer assessed the assessee to sales tax in respect of the turnover of the coal thus 565 supplied by the assessee
The assessee filed two writ petitions alleging that the assessment orders were without jurisdiction on several grounds
The High Court allowed the writ petitions on one of these grounds and hence did not go into the other contentions
It referred to section 9 of the  as it stood at the relevant time and held that the provision cast a liability to tax only on a registered dealer and not an unregistered dealer like the assessee
It is the correctness of this decision that is challenged in the present appeals
Section 9 relied upon by the High Court reads thus 3
91 The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter state trade or commerce whether such sales fall within clause a or clause b of section 3 shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of subsection 2 in the State from which the movement of the goods commenced
Provided that in the case of a sale of goods during their movement from one State to another being a sale subsequent to the first sale in respect of the same goods the tax shall where such sale does not fall within subsection 2 of section 6 be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or as the case may be could have obtained the form prescribed for the purpose of clause a of subsection 4 of section 8 in connection with the purchase of such goods
2 Subject to the other provisions of this Act and the rules made thereunder the authorities for the time being empowered to assess re assess collect and enforce payment of any tax under general sales tax law of the appropriate State shall on behalf of the Government of India assess re assess collect and enforce payment of tax including any penalty payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State and the Provisions of such law including provi 566 sions relating to returns provisional assessment advance payment of tax registration of the transferee of any business imposition of the tax liability of a person carrying on business on the transferee of or successor to such business transfer of liability of any fir n or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family recovery of tax from third parties appe als reviews revisions references 3refunds rebates penal ties compounding of offences and treatment of documents furnished by a dealer as confidential shall apply accordingly Provided that if in any State or part thereof there is no general sales tax law in force the Central Government may by rules made in this behalf make necessary provision for all or any of the matters specified in this sub section
 The High Court pointed out that under the terms of the section tax on sales of goods effected by a dealer in the course of inter state trade or commerce shall be levied in the State from which the movement of the goods commenced in this case the State of Bihar
The proviso however carves out an exception
It provides that if there is a subseq uent sale of the same goods in the course of their movement from one State to another and such sale is effected by a registered dealer tax can be levied and collected in the State from which such dealer obtained or could have obtained the forms prescribed under section 84a popularly known as the Form  in this case the State of Uttar Pradesh
But the High Court pointed out the assessee was not a registered dealer and so there was no scope for his being taxed in the State of UP
The High Court accordingly quashed the assessments in question and hence these appeals by the State
We may at once say that the conclusion of the High Court is unassailable in view of the decision of this Court in State vs Kasturi Lal Harlal 3 SC 234 affirming the view taken on this issue by the Allahabad High Court in an earlier case Kasturilal Harlal vs State 1972 29 STC 495
Shri Manchanda however submits that this view can no longer hold the field in view of a retrospective amendment of the by the Central Sales Tax Amendment Act No 103 of 1976
Two provisions of this Amendment Act may be extracted 6
Amendment of section 9
In section 9 of the Principal Act a in sub section 1 for proviso the following pro 567 viso shall be substituted namely
A Provided that in the case of sale of goods during their movement from one State to another being a sale subsequent to the first sale in respect of the same goods and being also a sale which does not fall within sub section 2 of section 6 the tax shall be levied and collected a where such subsequent sale has been effected by a registered dealer in the State from which the registered dealer obtained or as the case may be could have obtained the form prescribed for the purposes of clause a of subsection 4 of section 8 in connection with the purchase of such goods and b where such subsequent sale has been effected by an unregistered dealer in the State from which such subsequent sale has been effected b in sub section 2 before the words compounding of offences the words charging or payment of interest shall be inserted and shall be deemed always to have been inserted 
c after sub section 2 the following sub section shall be inserted namely 2A All the provisions relating to offences and penalties including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in sections 10 and lOA of the general sales tax law of each State shall with necessary modifications apply in relation to the assessment reassessment collection and the enforcement of payment of any tax required to be collected under this Act in such State or in relation to any process connected with such assessment re assessment collection or enforcement of payment as if the tax under this Act were a tax under such sales tax law
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 568 9
Validation  1 The provisions of section 9 of the principal Act shall have effect and shall be deemed always to have had effect in relation to the period commencing on the 5th day of January 1957 and ending with the date immediately preceding the date of commencement of this Act as if that section also provided a that all the provisions relating to penalties including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment on conviction for an offence but excluding the provisions relating to matters provided for in sections 10 and 10A of the principal Act and the provisions relating to offences of the general sales tax law of each State shall with necessary modifications apply in relation to i the assessment re assessment collection and enforcement or payment of any tax required to be collected under the principal Act in such State and ii any process connected with such assessment re assessment collection or enforcement of payment and b that for the purpose of the application of the provisions of such law the tax under the principal Act shall be deemed to be tax under such law
2 Notwithstanding anything contained in any judgment decree or order of any court or tribunal or other authority all penalties under the general sales tax law of any State imposed or purporting to have been imposed in pursuance of the provisions of section 9 of the principal Act and all proceedings acts or things taken or done for the purpose of or in relation to the imposition or collection of such penalties before the commencement of this Act shall for all purposes be deemed to be and to have always been imposed taken or done as validly and effectively as if the provisions of sub section 1 had been in force when such penalties were imposed or proceedings or acts or things were taken or done and accordingly a no suit or other proceedings shall be maintained or continued in or before any court or any tribunal or other 569 authority for the refund of any amount received or realised by way of such penalty b no court tribunal or other authority shall enforce any decree or order directing the refund of any amount received or realised by way of such penalty c where any amount which had been received or realised by way of such penalty had been refunded before the commencement of this Act and such refund would not have been allowed if the provisions of sub section 1 had been in force or the date on which the order for such refund was passed the amount so refunded may be recovered as an arrear of tax under the principal Act d any proceeding act or thing which could have been validly taken continued or done for the imposition of such penalty at any time before the commencement of this Act if the provisions of sub section 1 had then been in force but which had not been taken continued or done may after such commencement be taken continued or done
3 Nothing in sub section 2 shall be construed as preventing any Person a from questioning the imposition or collection of any penalty or any proceedings act or thing in connection therewith or b from claiming any refund in accordance with the provisions of the principal Act read with sub section1
 Shri Manchanda contends that by virtue of section 9 of the Amendment Act clause b of the proviso to section 9 1 of the is deemed to have been in force since 511957
The position according to him therefore is as if the Act had always imposed a liability to pay tax even on unregistered dealers just as it had originally done on registered dealers
We may mention that while deciding section T O vs Coal  Coke Supplies Corporation JT  we had assumed the correctness of the contention of Sri Manchanda as in that case the above argument that the amendment was retrospective was uncontroverted
570 Sri Harish Salve appearing for the assessee in this case however contests the correctness of Sri Manchanda s contention
We have therefore considered this aspect and reached the conclusion that Sri Salve is right and that no retrospective operation to clause b of section 91 can be spelt out as suggested by counsel for the appellant
received the assent of the President on 791976 which is apparently what is referred to as the date of its commencement in section 91 of the said Act
The Act amended several sections of the and it did not when its words when it desired to give any degree of retrospective effect to any particular amendment
The amendments to sections 3 and 4 of the Principal Act thus are clearly retrospective the provisions added thereto it is declared shall be inserted and shall always be deemed to have been inserted wef 141964
 The amendments to Sections 2 7 14 and IS of the Principal Act are obviously intended to be only prospective
The amendment to section 9 of the Principal Act with which we are at present concerned presents an amalgam
section 6 of the Amending Act makes three amendments in section 9 of the Principal Act by its three clauses a b and c
In clause a there is no hint of any retrospectivity whereas the amendment by clause b is expressed to be fully retrospective from 1956
The amendment by clause b attracts the penal provisions including offences of the relevant State Law and can in view of Article 20 of the Constitution only be prospective
However it appears that even under the statute as originally framed such penal provisions had been enforced in several cases and this action needed retrospective validation in so far as penalties other than offences were concerned in view of the decision of this Court in Khemka vs State  This was the raison d etre of section 9 of the Amendment Act which has been extracted above see Shiv Dutt Rai vs Union   This is also clear from paragraph 3 of the Statement of objects and Reasons of the Amendment Act which reads Sub section 2 of section 9 of the empowers the State sales tax authorities to assess re assess collect and enforce payment of Central sales tax
The sub section also authorises the authorities under the State sales tax laws to exercise all the powers which they have under those laws including inter alia the power to impose penalties for the purposes of the also
In Khemka  Co Agencies Private Ltd vs State of Maharashtra 35 STC 57 1 the Supreme Court by a ma 571 jority of 32 held that the provisions of the State sales tax laws as to penalties do not apply for purposes of the Central Sales Tax
In view of this judgment the State Governments are faced with the problem of having to refund the amounts collected in the past by way of penalties
The judgment has also resulted in a vacuum being created in regard to levy of penalties it is therefore necessary to amend section 9 of the to provide expressly that the provisions relating to offences and penalties under the general sales tax law of each State shall
with necessary modifications apply in relation to the assessment re assessment collection and the enforcement of tax under the 
It is also necessary to validate the penalties which have been levied in the past
for the purposes of the  on the basis of the provisions of the State sales tax laws
 Where the statute thus on its face clearly indicates retrospective effect where intended there can be no justification to read retrospectivity into the amendment made by clause a of section 6 of the amending Act which does not contain any words to that effect
Counsel for the appellant however relied on two circunstances to say that such retrospective effect must necessarily have been intended
Firstly he placed emphasis a on the fact that section 9 l of the Amendment Act refers to section 9 of the principal Act and not merely to section 92 and b on the use of the wordsas if that section also provided He submitted that this language can only mean that the legislature intended retrospective effect also to the amendment effected in section 9 by section 6 of the Validation Act
Secondly he submitted that under section 6 of the Central Sales Act all dealers registered or unregistered are liable to pay tax on sales effected by them in the course of inter state trade or commerce
section 91 imposes the liability on the dealer in the State from which the movement of the goods commences but this is without prejudice to the liability of dealers who make subsequent sales during the course of such movement
Such subsequent sale may be by a registered dealer or an unregistered dealer
It may be to a registered or an unregistered dealer
If the sale is to a registered dealer it is exempt under section 62 whether it is by a registered dealer or an unregistered dealer
Under the proviso to section 91 as it originally stood if the sale was by registered dealer to an unregistered dealer it would be taxed in the State from which the registered dealer obtained or could have obtained the Forms
When 572 even a sale by a registered dealer is thus made liable counsel argues it A could not have been the intention of the State to exempt from liability a sale by an unregistered dealer
The amendment only clarifies this position
It imposes no fresh substantive liability
It is only an amendment of a procedural nature shifting chargeability in such cases from the State from which the goods moves to the State in which the subsequent sale takes place
In this view of the matter counsel contends the amendment only affects the venue of taxation and being procedural in nature requires to be construed retrospectively
We are unable to accept these contentions
So far as the first point is concerned the language of the validation section clearly concerns only penalties which are dealt with under section 92
The amending Act refers to section 9 in general and not to section 92 only perhaps because section 9 l also contains a reference to sub section 2
From this circumstance alone it cannot be inferred that retrospectivity to the amendment of section 91 also is intended
The use of the word also  does not also have the result suggested by counsel
All that the provision requires is that for the period 5157 to 791976 the section is to be read as if it also included the additional substantive provisions referred to therein
It was earlier not clear whether all these provisions could be read into the section before 791976 the date when the Amendment Act came into force
So the validation section declares that the section should be read even earlier as if it comprehended also these substantive provisions
It is in this context that the word also is used
The employment of this word cannot therefore be treated as an indication of intention by the legislature that the amendment ot section 91 by section 6 of the amending Act was to be effective from 511957
If the Legislature had intended it the intention could and would have been expressed clearly in clause a of section 6 itself as it had been in the other clauses 
and in the other sections
If section 91 of the Amendment Act had been inserted as clause d in section 6 thereof it could not have changed the prospective effect of clause a
The position is not different merely because this provision is contained in section 9 and not section 6 of the Amendment Act
section 91 of the Amendment Act talks only of reading these extra words into section 91 of the principal Act between 5157 and 7976
It does not contain any operative words that require section 91 of the Principal Act being read in the form in which it has been amended by section 6 during that earlier period
We therefore do not see in section 9 of the Amending Act any support to the contention of the counsel for the appellant
The contention that the amendment is purely procedural is 573 also misconceived
Assuming the correctness of the contention that a A purely procedural amendment should ordinarily be construed to be retrospective we are unable to agree that the present amendment is of such nature
The decision of this Court in Kasturi Lal s case 4JT had held that an unregistered dealer is not taxable under the proviso
The amendment changes this position and imposes a substantive liability on such a dealer
It is also one which confers jurisdiction on an officer in a particular State to levy a tax which he otherwise cannot
It is thus a substantive provision
That apart even the question whether a charge to tax can be imposed in one State or another is not a mere question of venue
It may have an impact on the rate of tax in certain cases and it also regulates the rights inter se of States to levy taxes on such inter state sales
It is therefore difficult to accept the contention that the amendment should be treated as purely procedural and hence necessarily retrospective
In the result we are of opinion that clause b of section 91 of the is operative only from 791976
The present case is therefore governed by the earlier provision and the decision of this Court in Kasturi Lal s case supra
The appeals therefore fail and are dismissed
We however make no order as to costs
NPV Appeals dismissed


Summary:
 Rules of Procedure and Conduct of Business in Lok Sabha Rules 260 379 and 382 Non publication of resolutions Whether resolutions ineffective Publication in Parliamentary Debates even after delay Adequate publication
House of the People Extension of Duration Act 1976 Whether ultra vires
Finance Act 1976 Validity of
 section 57 Proceedings of Parliament Court to take judicial notice
The petitioner an assessee under the Income Tax Act and Wealth Tax Act during the assessment year 1976 77 and liable to pay income tax and wealth tax in accordance with the rates prescribed by the Finance Act 1976 which was passed by the Lok Sabha during its extended period under the provisions of the House of the People Extension of duration Act 1976 filed a writ petition before this Court challenging the vires of the two Proclamations of Emergency issued by the President on 3121971 and 2661975 and also of the House of the People Extension of Duration Act 1976 and the Finance Act 1976 contending that the duration of the House of People would have been validly extended only when a Proclamation of Emergency was in force under the proviso to cl
2 of article 83 of the Constitution and since the two Proclamations of Emergency in question were either ultra vires the Constitution or had ceased to be in operation by the time the House of the People Extension of Duration Act 1976 was passed by Parliament that Act had no effect and consequently all Acts passed by the House of the People during the extended period including the Finance Act 1976 432 were ultra vires the Constitution and that even though the said proclamations had been validly issued the proclamation dated 3rd December 1971 and 25th June 1975 had ceased to be in operation on 3rd February 1972 and 26th August 1975 respectively because the Resolutions passed by the two Houses of Parliament approving the said Proclamations of Emergency as required by cl
2 of article 352 of the Constitutions it stood during the relevant time had not been published in the official Gazette of the Government of India
The petition was opposed by the respondent Union of India contending that the two Proclamations had been duly issued by the President and approved by the Resolutions of the two Houses of Parliament as required by law and that actually the Proclamations of 3rd December 1971 and June 25 1975 had been revoked by the Vice President acting as the President by the Proclamations dated 27th March 1977 and 21st March 1977 respectively that in the month of February 1976 when the House of the People Extension of Duration Act 1976 was passed by Parliament both the Proclamations of emergency were in force and therefore Parliament was entitled to extend the period of the House of the People for a period not exceeding one year at a time that the Finance Act 1976 passed duly in the period so extended had been therefore validly passed and that publication of the Resolutions was not necessary and in any event since they had been published in the Lok Sabha and Rajya Sabha Debates which were published under the authority of the Speaker of the House of the People and the Chairman of the Rajya Sabha respectively the Proclamations of Emergency remained in force until they were duly revoked
Dismissing the writ petition  HELD 1
The two Proclamations of Emergency were kept in force by virtue of the resolutions passed by the Houses of Parliament until they were duly revoked by the two Proclamations which were issued by the Vice President acting as President of India in the year 1977
Since the two Proclamations of Emergency were in force when the House of the People Extension of Duration Act 1976 was passed its validity cannot be questioned
455D E The Lok Sabha passed the Finance Act 1976 during the extended period of its duration and therefore the validity of Finance Act 1976 also cannot be questioned
455E 2
Article 352 of the Constitution does not prescribe that a 433 Proclamation of Emergency should be published in the official Gazette
A Wherever the Constitution expressly requires a certain notification to be published in the official Gazette it has stated that the said notification shall be published in the form of a public notification
444H 445C A Proclamation of Emergency being a very important event affecting public life has also to be published in any manner known to modern world and the publication in the official Gazette is one such mode
If the Constitution requires that a particular mode of publication is necessary then such mode must be followed but if there is no mode of publication prescribed by the Constitution then it must be considered that the Constitution has left the method of publication to the authority issuing the proclamation in order t make it known to the members of the public
445G H 446A B 31 In the instant case the Proclamations of Emergency have been published in the official Gazette446B In the Constitution and in the Rules of Procedure of the Houses of Parliament and of the State Legislatures there are several provisions which provide for resolutions being passed by the Houses of Parliament or the Houses of State legislatures
They are not required to be published in the official Gazette even though in some cases they are published say where a certain law is adopted under article 252 or a member is removed on the ground of privilege etc
They would not be treated as ineffective merely because they are not published in the official Gazette
They are all however published in the Reports of the Houses of Parliament and of the Houses of the State Legislature within a reasonable time
446C 447B C 32 The Lok Sabha Debates and the Rajya Sabha Debates are the journals or the reports of the two Houses of Parliament which are printed and published by them
The Court has to take judicial notice of the proceedings of both the Houses of Parliament under section 57 of the Indian evidence Act 1872 and it is expected to treat the proceedings of the two Houses of Parliament as proved on the production of the copies of the journals or the reports containing the proceedings of the two Houses of Parliament which are published by them450E F  33 What is essential is that the resolutions approving the Proclamation of Emergency should be passed within the period of two months
A little delay in publishing the proceedings would not affect the validity of there solutions
454B C 434 34 The reports of the proceedings of Parliament and the State Legislatures are widely circulated
The newspapers radio and the television are also the other modern means which give publicity to all Acts and Resolutions of Parliament and the Legislatures of the States
The publication in the Parliamentary Debates though after some short delay is adequate publication of the resolutions of Parliament as there is no rule which requires that the resolutions should be published in the official Gazette
Hence mere non publication of the resolutions approving the Proclamations of Emergency in the offlcial Gazette did not make them ineffective
454G H 455A B In the instant case the resolutions of the Lok Sabha and the Rajya Sabha approving the two resolutions have been duly published in the official reports of the two Houses
455B C Waman Rao  Ors
vs Union of India  Ors
   Harla vs The State of Rajasthan   State of Punjab vs Sat Pal Dang  Ors  and Mharendu Dutt Majumdar vs The King Emperor  referred to