9911796707
TMI Blog1992 (4) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... rying out the purposes of the Act and sub-section (2) of section 74 provides that rules may provide for any of the matters specified in section 42. Sub-section (4) of section 74 requires that the rules made shall be subject to the condition of previous publication. The proviso to sub-section (4) enables the State Government to dispense with the previous publication if satisfied that circumstances exist which render it necessary to take immediate action. In exercise of powers conferred by section 74, the Government of Maharashtra had made rules known as the Bombay Sales Tax Rules, 1959. Rule 41D deals with drawback, set-off, etc., of tax paid by a manufacturer in respect of purchases made on or after the notified day. Sub-rule (1) of rule 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced by 6 per cent of such purchase price with effect from July 1, 1982. The grievance is that the rule was amended on August 10, 1983, after the draft rule was published on April 22, 1983, inviting objections and the petitioners claim that the proviso can take effect only from the date of publication of notification on August 10, 1983 and not with retrospective effect from July 1, 1982. Shri Setalwad submitted that the State Government which is a rule making authority had neither specific nor implicit power to make rules with retrospective effect and impose additional liability on the assessee. In answer to the petition, Rajendrakumar Vig, Sales Tax Officer, has filed return sworn on March 30, 1992. The respondents claim that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign Legislature to enact laws which have retrospective operation.............. The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the Legislature. Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the Legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h retrospective effect. As mentioned hereinabove, section 74 of the Act confers power upon the Government to make rules for carrying out the purposes of the Act. It was open for the State Government to amend the rules as soon as the provisions of the Act were amended with effect from July 1, 1982. The State Government did not choose to do so but decided to resort to sub-section (4) of section 74 and published draft amendment of rules on April 22, 1983 inviting objections. The State Government published Notification on August 10, 1983, but prescribed that the proviso to sub-rule (3) of rule 41D will come into operation with retrospective effect, i.e., July 1, 1982. Shri Setalwad is right in his submission that neither section 42 which en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers of the Income-tax Commissioner to reduce or waive interest payable by the assessee. This decision, in our judgment, cannot entitle the State Government to claim that in the absence of power either specific or by implication, the delegated authority can frame rules imposing fiscal liability on the assessee with retrospective effect. In our judgment, the proviso to sub-rule (3)(a) of rule 41D can come into force only from the date of publication of Government Notification dated August 10, 1983. 5.. Accordingly, the petition succeeds and it is declared that though the proviso to sub-rule (3)(a) of rule 41D of the Bombay Sales Tax Rules, 1959, is valid, the operation of the proviso can come into force only with effect from August 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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