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TMI Blog1970 (8) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... ased to exist. The petitioner appealed against both assessments, and, by the order exhibit P3 dated 25th September 1967, the Appellate Assistant Commissioner set aside the assessments in view of the decision of the Supreme Court in State of Punjab v. Jullundu Vegetables Syndicate[1966] 17 S.T.C. 326 (S.C.); A.I.R. 1966 S.C. 1295. Thereafter, the Kerala General Sales Tax (Amendment) Act, 1969 (Act 15 of 1969) was enacted with a view to save levies made on dissolved firms and, by section 3 thereof, a new section, section 21A, was introduced in the Kerala General Sales Tax Act, 1963, with effect from 1st April, 1963, the date of commencement of that Act. This new section runs as follows: "21A. Firm dissolved or business discontinued.-(1) Where any business carried on by a firm is discontinued or where a firm is dissolved, the assessing authority shall make an assessment of the taxable turnover of, and determine the tax payable by, the firm as if no such discontinuance or dissolution had taken place, and all the provisions of this Act, including the provisions relating to levy of penalty or any other amount payable under any provision of this Act, shall apply, so far as may be, to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall enforce any decree or order directing the refund of any such tax so collected; and (d) any such tax assessed under the principal Act before the date of publication of this Act in the Gazette, but not collected before that date, may be recovered in the manner provided under the principal Act as amended by this Act and the rules made thereunder: Provided that nothing contained in this section shall render any person liable to be convicted of an offence in respect of anything done or omitted to be done by him before the date of publication of this Act in the Gazette, if such act or omission would not be an offence under the principal Act but for the provisions of this Act. (2) For the removal of doubts, it is hereby declared that nothing in subsection (1) shall be construed as preventing any person from claiming refund of any tax paid by him in excess of the amount due from him under the principal Act as amended by this Act." The question is whether these two provisions of the Amendment Act validate the levy already made on the dissolved firm here concerned and thus preclude the petitioner from claiming a refund. 2.. We shall first consider the levy for the year 1962-63 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 4 of the (Kerala) Interpretation and General Clauses Act, 1125 (section 6 of the Central Act) which states the effect of a repeal: "4. Effect of repeal.-Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed." Reading the two provisions together, it seems to be qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eemed to have been in force. Therefore, but for the fact that the assessment order was set aside in appeal the order would have been in force as a valid and legal order, even apart from the validation by section 7 of the Amendment Act. And, so far as the setting aside of the assessment in appeal is concerned, there is the provision in section 7 of the Amendment Act, which, applied to the facts of this case, says that notwithstanding the order of the Appellate Assistant Commissioner setting aside the order of assessment, the order of assessment shall be deemed to be as valid and effective as if such assessment had been made under the Act of 1963 as amended. The conditions on which the Appellate Assistant Commissioner's order was based have been so fundamentally altered by the Amendment Act that the decision could not have been given in the altered circumstances. Therefore, the effect of the Amendment Act is to neutralise the effect of the order of the Appellate Assistant Commissioner which becomes ineffective after the change of the law. This is not a case where the Appellate Assistant Commissioner's order is merely set side. The law itself is changed and the cause for the ineffecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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