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TMI Blog1964 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay purchase tax on them under section 10(a) of the Act. The assessees thereafter mixed the different varieties of raw tobacco purchased by them and graded the mixture by passing it through sieves and sold the resultant mixture to various dealers outside the State of Bombay. These sales were also effected in the assessment year 1955-56 and they were within a period of nine months from the dates of the respective purchases. In the assessment of the assessees to sales tax for the assessment year 1955-56, the assessees claimed exemption from payment of purchase tax on the purchases effected by them on the ground that having elected to pay sales tax they were not liable to pay purchase tax by reason of section 10A. The assessees also claimed in the alternative remission of purchase tax under rule 12(1A) on the ground that they had despatched the goods purchased by them to an address outside the State of Bombay within a period of nine months from the date of the respective purchases. The claims under both heads were negatived by the Sales Tax Officer and on appeal, the order of the Sales Tax Officer was confirmed by the Assistant Commissioner of Sales Tax. A revision application was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very foundation of the claim for remission was not in force during the assessment year 1955-56 and the assessees were, therefore, not entitled to claim remission under that rule. Now there can be no doubt that rule 12(1A) was not in force during the assessment year 1955-56 and it came into force only from 1st March, 1957, and consequently unless the rule is construed as conferring a right to claim remission or refund of purchase tax even in cases where purchase and subsequent sale were effected prior to 1st March, 1957, the claim of the assessees to remission would be liable to be rejected. But a preliminary objection to our entertaining this contention was raised by Mr. S.L. Mody, learned Advocate appearing on behalf of the assessees. He urged that the case was argued before the Tribunal on the basis that the claim for remission made by the assessees was governed by rule 12(1A) and the only ground on which the claim was sought to be negatived was that the requirement of rule 12(1A) were not fulfilled. He pointed out that at no stage was it contended on behalf of the Revenue that rule 12(1A) did not govern the determination of the claim of the assessees and that the claim was liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision of the Supreme Court in Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd.[1961] 42 I.T.R. 589.-and the principle there laid down in regard to section 66 of the Income-tax Act must apply equally in regard to section 34 of the Bombay Sales Tax Act, 1953-that once a question is in issue before the Tribunal and is referred to the Court for its opinion, there is no limitation that the reference should be limited to those aspects of the question which have been argued before the Tribunal. As observed by Venkatarama Aiyar, J., ".......it will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of section 66(1) of the Act". Where, therefore, a question involves more than one aspect requiring to be tackled from different standpoints, all aspects of the question can be agitated before the Court even though they might not have been argued before the Tribunal. It is, therefore, clear that even though the contention that rule 12(1A) was not in force during any part of the assessment year 1955-56 was not raised before the Tribunal it can still be agitated on the present reference inasmuch as it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into force of the rule though the purchase might have been made prior to that date. He argued that if the construction contended for on behalf of the assessees were accepted, it would amount to giving retrospective operation to rule 12(1A) which was not warranted by the language of the rule on any principle of interpretation. His conclusion was-and that was the conclusion which he pressed upon us for our acceptance -that since the purchases and subsequent sales in the present case were during the assessment year 1955-56, that is, prior to the coming into force of rule 12(1A), the rule was not applicable and no claim for remission of purchase tax paid in respect of the purchases could be made under the rule. These were the rival contentions of the parties and they raised a question of retrospectivity of the operation of rule 12(1A). Now if there is one rule of construction clearer than any other, it is this that unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to affect, alter or destroy any right already acquired under the existing law or to create a new obligation or enforce a new duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patched by him or by a registered dealer to whom he sold the goods on such registered dealer furnishing a certificate in Form N, to an address outside the State of Bombay within a period of nine months from the date of the purchase. The first condition must obviously be satisfied because unless the dealer has become liable to pay purchase tax on his purchase of goods, there can be no question of remission or refund of the purchase tax. The second condition requires that the goods purchased must be despatched by the dealer or by a registered dealer to whom he sold the goods against a certificate in Form N, to an address outside the State of Bombay within a period of nine months from the date of the purchase. When this second condition is satisfied, the dealer acquires the right to claim remission of the purchase tax payable by him on the purchase and if the purchase tax has already been paid by him, he acquires the right to claim refund of the purchase tax so paid. It is on the fulfilment of the second condition that the dealer becomes entitled to remission or refund of the purchase tax in respect of purchase of goods made by him. Of course in order to get such remission or refund, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illed prior to the coming into force of the rule nor do we find anything in the rule which confers such a right by necessary implication. Some reliance was placed on behalf of the assessees on the circumstance that the rule contemplates refund of purchase tax already paid and this, in the submission of the assessees, showed that the rule was intended to apply even to cases where assessment was completed and such cases would include cases where not only the purchase but also the subsequent sale might have taken place prior to the coming into force of the rule. But this reliance is, in our opinion, misplaced and the argument seeks to read more in the rule than what it contains. Of course the rule contemplates refund of purchase tax which may have been paid by a dealer but it is possible that even in a case where the second condition is fulfilled by the subsequent sale after the coming into force of the rule, the purchase might have been effected prior to the coming into force of the rule and assessment of purchase tax for the assessment year in which the purchase took place might have already been completed before the subsequent sale takes place. It is equally possible that even in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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