HOW TO INTERPRET NOTIFICATIONS IN TAX LAWS

[Dr. Sanjiv Agarwal]

Meaning of Notification [Section 2(80)]

As per section 2(80) of the CGST Act, 2017, ‘notification’ means a notification published in the Official Gazette and the expressions ‘notify’ and ‘notified’ shall be construed accordingly.

The notifications are generally issued for the purposes of notifying any change or act, to grant exemption to announce or change rate of tax or amend any delegated legislation including rules or to make any regulations. Under section 165 of the CGST Act, 2017, board may make regulations and rules by way of notifications. All notifications shall be laid before both the houses of Parliament.

Notification is a written or printed matter that gives notice. It should be published with a date. The place of publication should be in the Official Gazette.

It is an act of announcement or notifying, act of making known, an intimation or notice, act of giving official notice or information by words, by writing or by other means. The 'notification' in the Official Gazette is made with the intention that in the case of either grant or withdrawal of exemption, the public must come to know of the same. The date of notification or the date of publication or the date of gazette does not count for notification' but it is the date on which the gazette is made available to the public would  amount to 'notification'. Printing the official gazette and stacking them without releasing to the public would not amount to 'notification' at all. [Asia Tobacco Co. Ltd. v. Union of India, 1984 (8) TMI 48 - MADRAS HIGH COURT; 1989 (7) TMI 6 - MADRAS HIGH COURT].

The terms, 'notify' or 'notified' means notified on official Gazette implying notice given. It means to inform or to give notice.

In Kashmiri Lal v. State of Punjab, (1984) 87 AIR (1983 (8) TMI 309 - PUNJAB & HARYANA HIGH COURT), it was held that Notification is a formal declaration, proclamation and publication of an order either generally and in the manner prescribed.

In Wipro Ltd. v. Union of India (2013) 2 TMI 385, in relation to export rebate, it was held that conditions imposed by notification must be capable of being complied with. If it is impossible of compliance, then there is no purpose behind it.

In Chennai Petroleum Corporation Limited v. C.C.E. Tiruchirapalli 2017 (2) TMI 713 - CESTAT CHENNAI, the court while interpreting a curative notification held that law is well-settled that a curative notification which seeks to mitigate the hardships is always read in a manner to advance public welfare and construed liberally as well as retrospectively.

In Union of India v. Param Industries Ltd. (2015) 6 TMI 732; it was held that for ascertaining the effective date of a notification to bring it into force and make it effective, two conditions are mandatory, viz.,

(1) Notification should be duly published in the official gazette,

(2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. The Court further observed as under:

"We are in agreement with the aforesaid view taken by the High Court which is in conformity with the law laid down by the court in ‘Harla v. The State of Rajasthan’ [1951 (9) TMI 37 - SUPREME COURT] wherein this court formulated the aforesaid principle in the following manner :-

“The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in our country may not necessarily be the best in another. But reasonable publication of some sort there must be.”

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