Case: Commissioner Of Sales Tax, Madhya Pradesh Vs. M/S. Amarnath Ajitkumar Of Bhind, Madhyapradesh

the repealed Act. Section 7 of the Bombay General Clauses Act provides "where this Act or any Bombay Act, or Maharashtra Act, made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:x x x x(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.x x x x(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act has not been passed". Dealing with the scope of those provisions this is what this Court observed:"Very clearly, the repeal of the Act of 1953 by the Act of 1959 did not affect the rights and liabilities of the assessee to tax under the Act of 1953 or the Act of 1946 in respect of the turnover which became liable to sales tax under the Act of 1946. The effect of Clause (e) of Section 7 of the Bombay General Clauses Act further is that any legal proceeding in respect of levy, imposition or recovery of that tax is to continue and any fresh investigation, legal proceeding or remedy could be instituted as if there had been no repeal by the Act of 1959. Consequently, the repeal of the act of 1953 did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu against the appellate order of the Assistant Collector which had been passed in exercise of his powers under the Act of 1946. It is true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under Section 31 of the Act of 1953, but under Section 22 of the Act of 1946. That is so, because, when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946. Section 48 (2) and Section 49 (1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act. Consequently the Deputy Commissioner in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under Section 22 of the Act of 1946. That, however is not at all material, because the provisions of Section 22 of the Act of 1946 are quite similar to those of Section 31 of the Act of 1953. The mere incorrect mention of Section 31 of the act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under the Section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction."12. Now coming back to Section 52 of the M. P. Sales Tax Act of 1959 , the proviso to Section 52 (1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under Section 12 (1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12 (1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why Section 12 (1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. The effect of Section 52 (1) of M. P. Sales Tax Act, as seen earlier is that all assessments, which include reassessments should be in accordance with the repealed Act.13. The second part of the that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall in so far as it is not inconsistent with the provisions of the M. P. Sales Tax Act, 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between Section 12 (1) of the Madhya Bharat Act and Section 39(2) of the M. P. Sales Tax Act. 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised. Therefore the Revenue cannot call into aid the second part of the proviso. The resulting position is that the governing provision would continue to be Section 12 (1) of the Madhya Bharat Act.14.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. Agreeing with the High Court this Court held in Hanuman Prasads case, 19 STC 87  = (AIR 1967 SC 565 ) that the Commissioner could not have revised the order of assessment after the period prescribed in the repealed Act. One of the reasons given in support of that conclusion is that "the rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act, in respect of turnover of sales effected during the time when that Act was in force." The expression assessment includesis true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under Section 31 of the Act of 1953, but under Section 22 of the Act of 1946. That is so, because, when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946. Section 48 (2) and Section 49 (1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act. Consequently the Deputy Commissioner in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under Section 22 of the Act of 1946. That, however is not at all material, because the provisions of Section 22 of the Act of 1946 are quite similar to those of Section 31 of the Act of 1953. The mere incorrect mention of Section 31 of the act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under the Section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction.Now coming back to Section 52 of the M. P. Sales Tax Act of 1959 , the proviso to Section 52 (1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under Section 12 (1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12 (1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why Section 12 (1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. The effect of Section 52 (1) of M. P. Sales Tax Act, as seen earlier is that all assessments, which include reassessments should be in accordance with the repealed Act.13. The second part of the that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall in so far as it is not inconsistent with the provisions of the M. P. Sales Tax Act, 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between Section 12 (1) of the Madhya Bharat Act and Section 39(2) of the M. P. Sales Tax Act. 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised. Therefore the Revenue cannot call into aid the second part of the proviso. The resulting position is that the governing provision would continue to be Section 12 (1) of the Madhya Bharat Act.From the second proviso, it is clear that the Commissioner is precluded from revising an order which had been made more than two years previously. That proviso did not lay down any rule of limitation. But it took away the power of the Commissioner to revise any assessment after the prescribed period. Thereafter the assessment became final and conclusive as against the Department as well as the assessee, unless it was liable to be changed under some other provision of the Madhya Bharat Act.