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TMI Blog1969 (8) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-58 by his assessment order dated 28th March, 1962. By that assessment order he assessed the turnover of oil-seeds also, applying a rate of three pies per rupee. The firm proceeded in appeal. The Assistant Commissioner (Judicial) Sales Tax, allowed the appeal on the ground that the Sales Tax Officer had not investigated whether even if the firm was not entitled to exemption from the commencement of the assessment year, it was entitled to exemption from any subsequent date in the assessment year. Upon that he set aside the assessment order and remanded the case by his order dated 4th May, 1965. The firm then applied in revision against the order of remand and a number of contentions were raised before the Additional Judge (Revisions) Sales Tax. Among them, the firm urged that the turnover of oil-seeds was not liable to assessment because there was no valid notification laying down the rate of tax in respect of such turnover, that no fresh assessment could be made pursuant to the remand order because of the bar of limitation, and that the Sales Tax Officer, Etawah, had no jurisdiction to assess the firm. These contentions were rejected by the Additional Judge (Revisions) Sales Tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the consumer and that the rate of tax would not exceed two naye paise per rupee. Section 3-AA came into effect from 1st April, 1956. The section was amended from time to time and in respect of the assessment years 1957-58 and 1958-59 sub-section (1) of section 3-AA provided: "Notwithstanding anything contained in section 3 or section 3-A, the turnover in respect of the following goods shall not be liable to tax except at the point of sale by a dealer to the consumer, and the rate of tax shall not exceed two per cent. (vi) oil-seeds." Notification No. ST-2933/X-902(7)-56 dated 1st August, 1958, declared: "In pursuance of the provisions of section 3-AA of the U.P. Sales Tax Act, 1948 (U.P. Act No. 15 of 1948), as amended up-to-date, the following is hereby notified for the information of all concerned: The turnover in respect of jute, iron and steel and oil-seeds as defined in the said section 3-AA and which under the said section are liable to tax only at the point of sale by a dealer to the consumer shall as with effect from 1st April, 1956, continue to be subject to tax at the rate of three pies per rupee." It will be noticed that the notification was brought into ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st August, 1958, shall be considered to have been issued under the amended section 3AA(1) and such notification shall be deemed always to have been valid. It is not possible, therefore, to contend now that the notification is invalid because there was no power in the State Government under section 3-AA(1) to issue a notification specifying the rate of tax. It is next urged that even if the notification be deemed, by virtue of the Amendment Act of 1964, to have been made under section 3-AA of the principal Act as now amended, it was still invalid on two grounds. One ground is that it has been made with retrospective effect, namely with effect from 1st April, 1956, and it is urged that there was no power in the State Government to make that notification with retrospective effect. The other ground is that it is not a notification made by the State Government and does not purport to be so. It is apparent on the terms of the notification that although made on 1st August, 1958, the rate of tax of three pies per rupee is levied under it with effect from 1st April, 1956. It cannot be disputed that it has been made with retrospective effect. It has been laid down by this court in Modi Food ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principal Act shall be amended so that for the words "shall not exceed two.....................paise per rupee", the words "shall be such, not exceeding two paise per rupee, as may be declared by the State Government by notification in the official Gazette" and these words shall be deemed always to have been substituted. Then follow sections 3 and 4. Section 3 is in three parts. The first part declares that any notification declaring the rate of tax purporting to be under section 3-AA of the principal Act, issued before the commencement of the Amendment Act, shall be deemed to have been issued under that section as amended. The second part provides that notwithstanding any judgment, decree or order of any court any such notification shall be deemed always to have been valid. The third part validates anything done or any action taken in pursuance of such notification. On behalf of the revenue it is said that under the second part the notification dated 1st August, 1958, must be treated as valid, no matter what the ground be for assailing its validity. I am unable to accept that contention. Considering the context of the surrounding statutory provisions it seems clear that the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Amendment Act a court or authority had set aside or modified the assessment, levy or collection of tax merely on the ground that the notification referred to in section 3 of the Amendment Act was invalid. To enable a party to the proceeding or the Commissioner of Sales Tax to have the effect of such decision abrogated, a right was given under section 4 of the Amendment Act to apply to the court or authority for a review of the proceeding, and the court or authority was empowered to review the proceeding and to make such order as was necessary "to give effect to the provisions of this Act". Viewed in this context it appears that the notification dated 1st August, 1958, has been validated by section 3(a) of the Amendment Act only to cure the defect arising because of the omission in the unamended section 3-AA which was sought to be removed by the amendment. It was not validated to cure any other defect from which it might suffer. In this view of the matter, the submission of the petitioner that the notification is invalid because it was made with retrospective effect must prevail. In the circumstances, it is not necessary to consider the other ground on which the notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2(h) of the U.P. Sales Tax Rules to mean "a Sales Tax Officer of the circle appointed by the State Government to perform the duties and exercise all powers of an assessing authority in such circle". A circle has been defined by rule 2(c) to mean "a sales tax circle notified under sub-rule (1) of rule 3." Rule 3 empowers the State Government to fix the limits of a circle and to appoint officers to the circle. It is clear, therefore, that a Sales Tax Officer is appointed in respect of a circle to perform the duties and exercise the powers of an assessing authority in such circle. The jurisdiction of the Sales Tax Officer in a circle is defined by rule 6. Under clause (a) he is the assessing authority in respect of dealers carrying on business within the limits of his jurisdiction. Clauses (b) and (c) of rule 6 refer to cases where the dealer carries on business within the limits of the jurisdiction of more than one Sales Tax Officer or where the principal place of business is situated outside Uttar Pradesh. Clause (d) provides that whenever there is any doubt the Commissioner will determine the Sales Tax Officer who will be the assessing authority in respect of any dealer. Admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other without specifying any object and without giving any reason, thus subjecting a particular assessee to discriminatory treatment whereas the other assessees similarly situated with him would continue to be assessed at the place where they reside or carry on business under section 64(1) and (2) of the Act. The contention was repelled on the ground that although prima facie it appeared than an assessee was entitled under section 64(1) and (2) to be assessed by the Income-tax Officer of the particular area where he resides or carries on business, and the convenience of the assessee was the main consideration in determining the place of assessment, the exigencies of tax collection had to be considered and the primary object of the Act, namely, the assessment, had got to be achieved, and it was observed: "In order to assess the tax payable by an assessee more conveniently and efficiently it may be necessary to have him assessed by an Income-tax Officer of an area other than the one in which he resides or carries on business. It may be that the nature and volume of his business operations are such as require investigation into his affairs in a place other than the one where he r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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