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TMI Blog1966 (1) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) The reassessment proceedings were started on account of mala fides on the part of the respondents. (2) The petitioner-firm was not in existence during the period for which the reassessment had been made. (3) The reassessment could be done only by the Commissioner and not by the Sales Tax Officer who had made the impugned orders which were wholly illegal and which had been made by an authority who had no jurisdiction whatsoever to make them. In my opinion, the petitioners are entitled to succeed on the last point and, therefore, it is wholly unnecessary to go into the other points which involve questions of fact which it may or may not be possible to decide in these proceedings. Section 11-A as added by the amending Act of 1956 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 78 of the Delhi Sales Tax Rules, 1951, provides that the Commissioner shall not delegate any powers other than those specified in columns 2 and 3 of the First Schedule, nor shall such powers be delegated to any officer below the rank of officers specified in the corresponding entries in column 4 of the said Schedule. It is common ground that in the First Schedule section 11-A did not appear and was not included among the sections in respect of which delegation could be made by the Commissioner of his powers under section 15. Although before the impugned orders were made the Commissioner had purported to delegate his powers under section 11-A to the Sales Tax Officer but that delegation was indisputably illegal and altogether void beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not exercise of a rule-making power and that the notification of 12th February, 1958, by which powers were delegated by the State Government to the Additional Director did not fall within the category of a rule or regulation. However, certain observations were made in the Full Bench judgment which, even if in the nature of obiter, have a good deal of bearing on the question which has arisen in the present case. Reference was made at page 518 to the statement in Cooly's Constitutional Law that it is a well-settled principle that the Legislature can never, by retrospective proceedings, cure a defect of jurisdiction in the proceedings of Courts, the reason being manifest that such proceedings being utterly void, they would acquire vitality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercising powers of delegated legislation to direct that the amendment should have retrospective operation. Mr. Shankar has relied on what was said in Pandit Banarsi Das Bhanot v. The State of Madhya Pradesh[1958] 9 S.T.C. 388; A.I.R. 1958 S.C. 909. , that it was not unconstitutional for the Legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, etc., and the power conferred on the State Government by section 6(2) of the C.P. and Berar Sales Tax Act of 1947 to amend the Schedule relating to exemption was in consonance with the accepted legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 35., a Legislature can certainly give retrospective effect to a piece of legislation passed by it but an executive Government exercising subordinate and delegated legislative powers cannot make legislation retrospective in effect unless that power is expressly conferred. These cases were followed by Varadaraja Iyengar, J., in Calicut-Wynad Motor Service (Private) Ltd. v. State of KeralaA.I.R. 1959 Ker. 347., who also referred to Strawboard Manufacturing Co. Ltd. v. G. Mill Workers' UnionA.I.R. 1953 S.C. 95., where the question was as to the validity of an order of the Government extending the time for the passing of an award after it had been actually made and it was laid down that the State Government did not have the power to extend t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the power conferred on the Government by clause (2)(a) of section 19 of the Madras General Sales Tax Act, 1939, was not ultra vires the Government on the ground that it was retrospective in operation. The Madras Court held that the Government had the power to make such a rule operative with retrospective effect. The Allahabad and the Hyderabad cases, which were cited before that Court, were distinguished on the ground that the observations made therein were more or less obiter. The reasoning given by the learned Madras Judges in favour of the view expressed by them was that the rules framed under section 19 of the Madras General Sales Tax Act upon publication were to have the same effect as if enacted in the principal Act. As rule 4-A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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