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2015 (12) TMI 469 - HC - VAT and Sales TaxWhether in view of the judgments of the Supreme Court in Hari Shanker versus Rao Girdhari Lal Chowdhury 1961 (12) TMI 87 - SUPREME COURT and Shiv Shakti Cooperative Housing Society versus Swaraj Developers 2003 (4) TMI 563 - SUPREME COURT 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 - Held that - since the proceeding for eviction was pending when the repealing Act came into operation, Section 6 of the General Clauses Act would be applicable. The words any right accrued in Section 6 included the landlord s right to evict a tenant in case a proceeding was pending when the repeal came in. When a repeal is followed by fresh legislation on the same subject, it is necessary to consider the provisions of the new legislation for the purpose of determining whether they indicate a different intention within the meaning of Section 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has been conferred on the Commissioner both under the erstwhile UP Trade Tax Act as well as under the UP VAT Act which repealed the former Act.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 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. Both the erstwhile legislation as well as the new legislation provide for a remedy of a revision to the Commissioner. The intent of the new Act was evidently not to abrogate that remedy of a revision. - even the assessment that took place was after 1 January 2008, on 9 November 2009. The power of the revisional authority to call for and examine the records for the purpose of satisfying himself as to the legality or propriety of the order of assessment and to pass such order with respect thereto as he thinks fit is, hence, unaffected by the repeal. This power is intrinsically connected with the 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. 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. - judgments of the two Division Benches of this Court in Dharma Rice Mill (2010 (4) TMI 979 - ALLAHABAD HIGH COURT) and Kumar Rice Mills (2010 (7) TMI 1009 - ALLAHABAD HIGH COURT), 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 General Clauses Act 1904. - Appeal disposed of.
Issues Involved:
1. Whether the power of revision under Section 10B of the U.P. Trade Tax Act, 1948 is saved under Section 81(2) of the U.P. Value Added Tax Act, 2008 after the repeal of the former Act. 2. Whether the Division Benches' views in Dharma Rice Mill and Kumar Rice Mills, which took a contrary view without considering the Supreme Court judgments in Hari Shanker and Shiv Shakti Cooperative Housing Society, lay down the correct law. Detailed Analysis: Issue 1: Whether the power of revision under Section 10B of the U.P. Trade Tax Act, 1948 is saved under Section 81(2) of the U.P. Value Added Tax Act, 2008 after the repeal of the former Act. The court examined the nature of the power of revision under Section 10B, determining it to be an enabling provision rather than a substantive right. The court noted that the U.P. VAT Act repealed the U.P. Trade Tax Act but included a savings clause under Section 81, which preserved certain rights, privileges, obligations, and liabilities acquired under the repealed Act. The court emphasized that Section 81(6) explicitly preserved the general application of Section 6 of the U.P. General Clauses Act, 1904, which ensures that the repeal does not affect any right, privilege, obligation, or liability acquired under the repealed Act. The court referred to several precedents, including Hari Shankar and Shiv Shakti Cooperative Housing Society, to highlight the distinction between an appeal (a substantive right) and a revision (an enabling provision). The court also cited the Supreme Court's decision in Swastik Oil Mills Ltd, which held that the power of revision is integrally connected with the assessment process and is thus preserved even after the repeal of the original Act. The court concluded that the power of revision under Section 10B of the U.P. Trade Tax Act is indeed saved under Section 81(2) of the U.P. VAT Act, 2008, and can be exercised by the Commissioner even after the repeal of the former Act. Issue 2: Whether the Division Benches' views in Dharma Rice Mill and Kumar Rice Mills, which took a contrary view without considering the Supreme Court judgments in Hari Shanker and Shiv Shakti Cooperative Housing Society, lay down the correct law. The court examined the Division Benches' decisions in Dharma Rice Mill and Kumar Rice Mills, which had held that the power of revision under Section 10B survived the repeal of the U.P. Trade Tax Act. The court noted that these decisions did not consider the Supreme Court judgments in Hari Shankar and Shiv Shakti Cooperative Housing Society, which clarified that a revision is an enabling provision and not a substantive right. The court analyzed the legislative intent behind the U.P. VAT Act and its savings clause, concluding that the legislature did not intend to abrogate the remedy of revision provided under the repealed Act. The court emphasized that the power of revision is essential for ensuring that assessments are carried out in accordance with the law and that this power is preserved under the new legislation. The court held that the views expressed by the Division Benches in Dharma Rice Mill and Kumar Rice Mills were correct and that the power of revision under Section 10B of the U.P. Trade Tax Act is saved by Section 81 of the U.P. VAT Act, 2008, read with Section 6 of the U.P. General Clauses Act, 1904. Conclusion: The court answered both questions of law in favor of preserving the power of revision under Section 10B of the U.P. Trade Tax Act, 1948, even after its repeal by the U.P. VAT Act, 2008. The reference was disposed of, and the revision was placed before the regular Bench for disposal in light of the questions so answered.
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