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TMI Blog1981 (3) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... 75] 35 STC 571 (SC). The petitioner then filed this petition under article 226 of the Constitution for quashing of the said notice. 2.. The first contention raised by the learned counsel for the petitioner is that the effect of the amending Act is not to revive the order of penalty passed by the Additional Assistant Commissioner of Sales Tax which was set aside in revision by the Commissioner by order dated 9th June, 1976. The second contention of the learned counsel is that sub-section (2A) inserted in section 9 of the principal Act and section 9(1) of the amending Act which make applicable the provisions relating to penalties of the general sales tax law of each State in relation to the assessment, reassessment, collection and the enforcement of payment of any tax under the Central Act are void for excessive delegation. 3.. By section 6 of the amending Act, sub-section (2A) was inserted in section 9 of the Central Act, which reads as follows: "(2A) All the provisions relating to offences and penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed or proceedings or acts or things were taken or done and, accordingly,- (a) no suit or other proceedings shall be maintained or continued in or before any court or any tribunal or other authority for the refund of any amount received or realised by way of such penalty; (b) no court, tribunal or other authority shall enforce any decree or order directing the refund of any amount received or realised by way of such penalty; (c) where any amount which had been received or realised by way of such penalty had been refunded before the commencement of this Act and such refund would not have been allowed if the provisions of sub-section (1) had been in force on the date on which the order for such refund was passed, the amount so refunded may be recovered as an arrear of tax under the principal Act; (d) any proceeding, act or thing which could have been validly taken, continued or done for the imposition of such penalty at any time before the commencement of this Act if the provisions of sub-section (1) had then been in force but which had not been taken, continued or done, may after such commencement be taken, continued or done. (3) Nothing in sub-section (2) shall be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) had been in force when such penalties were imposed. The combined effect of subsections (1) and (2) of section 9 of the amending Act is to declare that the penalty imposed by the order of the Additional Assistant Commissioner dated 10th May, 1975, under section 17(3) of the State Act read with section 9(2) of the Central Act was validly imposed. The argument that as the order of the Additional Assistant Commissioner imposing penalty was set aside by the Commissioner in revision sub-section (2) of section 9 of the amending Act does not revive the order imposing penalty, ignores the opening words of sub-section (2) which are "notwithstanding anything contained in any judgment, decree or order of any court or tribunal or other authority". This notwithstanding clause makes the Commissioner's order in revision inoperative and revives the order of the Additional Assistant Commissioner imposing penalty. This is further clear from clauses (a) to (c) of sub-section (2). We do not accept the argument that there should be a fresh order imposing penalty under clause (d) of sub-section (2). Clause (d) will apply in those cases where there was no order at all imposing penalty. That clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the learned counsel is that Parliament makes applicable by sub-section (2A) inserted in section 9 of the principal Act and section 9(1) of the amending Act the provisions relating to penalties of the relevant State Acts which may have been in force from 5th January, 1957, which may now be in force and which in future may be in force, and such a legislation amounts to abdication of legislative functions and is unconstitutional. The learned counsel in this connection referred to a passage from the judgment of Beg, J., in Khemka's case [1975] 35 STC 571 (SC), which reads as under: "Relying upon the principles indicated by this court in In re Delhi Laws Act, 1912 [1951] SCR 747; AIR 1951 SC 332. I think one could say that in 1956 the Parliament could not have applied its mind to provisions which came into existence afterwards. It could not, therefore, have incorporated them by reference as parts of a procedure applicable to assessments which took place after 1959 when the Bombay Act of 1953 was repealed. At the time of the passing of the Central Act, the relevant statute in existence in Bombay was the Bombay Act of 1953. But, section 16(4) of the Bombay Act of 1953, under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have been quoted above, also do not expressly say that Parliament could not validly incorporate by reference the provisions in the general sales tax law of the States which come to be enacted in future in the Central Act. His observations that "it would be carrying the theory of referential legislation too far to assume that sub-section (2) of the Central Act purported to authorise the State Legislatures to impose liabilities in the nature of additional tax or penalties leaving their rates and conditions for their imposition also to be determined by the State Legislatures as and when the State Legislatures decide to impose or amend them" were made in the context of applying the proper canon of construction for interpreting subsection (2). Beg, J., specifically made it clear in that case that if sub-section (2) were construed that way whether it would amount to abdication of essential legislative function, was a question which was not argued and, therefore, he was referring to that aspect only for determining the correct canon of construction. The opinion expressed by Beg, J., cannot be taken to be decisive on the question that if Parliament by suitable amendment in section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in relation to assessment, reassessment, collection and the enforcement of payment of the Central sales tax and the State sales tax. That is the whole theme of section 9 which makes the machinery under the general sales tax law of a State applicable for assessment, reassessment, collection and enforcement of payment of tax under the Central Act. When the policy of bringing about complete current uniformity is clear from sub-section (2A) added in section 9, it cannot be said that Parliament abdicated its functions in favour of the State Legislatures by enacting sub-section (2A). Parliament cannot be said to have delegated any function to the State Legislature, for it has itself determined the policy of complete current uniformity in the matter of offences and penalties in relation to assessment, reassessment and the enforcement of payment of taxes under the Central and the State Acts and it has itself made it a binding rule of conduct by enacting subsection (2A). The provisions relating to offences and penalties contained in the State Acts become applicable for the assessment, reassessment, collection and enforcement of payment of Central sales tax not because of the will of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1974 SC 1660; see further Krishna Chandra v. Union of India AIR 1975 SC 1389 at 13931394. Gwalior Rayon Mills case [1974] 33 STC 219 (SC); 94 ITR 204 (SC); AIR 1974 SC 1660 was followed in International Cotton Corporation v. Commercial Tax Officer [1975] 35 STC 1 (SC); AIR 1975 SC 1604, which upheld the validity of section 8(2)(b) of the Central Sales Tax Act which applies the rate of tax under the appropriate State Act to sales of declared goods in the course of inter-State trade or commerce. It was pointed out that the legislative policy was that the inter-State trade should not be discriminated against and that a comprehensive provision be made avoiding the necessity of unending series of amendments every time one State or other altered its rate of tax. On the principles stated above, we do not find any invalidity in sub-section (2A) of section 9 of the Act. 9.. The learned counsel for the petitioner relied upon the well-known case of B. Shama Rao v. Union Territory of Pondicherry [1967] 20 STC 215 (SC); AIR 1967 SC 1480. In that case the Pondicherry Legislature enacted the Pondicherry General Sales Tax Act, 1965, which was to come into force on issue of a notification by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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