9911796707
TMI Blog1998 (11) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... bove 80 per cent for oil fired boilers. 2.. The petitioner did not collect sales tax on the sale of such boilers which were exempt under the said notification. For the assessment year 1985-86 the second respondent proceeded to levy sales tax on the high efficiency boilers on the ground that the exemption had been withdrawn, retrospectively. A sum of Rs. 54,010 under the TNGST Act for 1984-85 and Rs. 34,900 under the same Sales Tax Act for 1985-86 was demanded from the petitioner. 3.. It transpires that by G.O. P. No. 645, dated June 30, 1986, sub-item (iv) of List II was omitted with retrospective effect from April 1, 1984. Therefore, on January 20, 1987, the petitioner wrote to the Commissioner (CT) seeking waiver of tax leviable till January 20, 1987. By an order dated March 22, 1988, the Commissioner informed the petitioner that the Government had rejected the plea of waiver. On May 11, 1988, the C.T.O., Villivakkam, demanded tax under the TNGST Act for the years 1984-85 and 1985-86 at Rs. 54,010 and Rs. 34,900 respectively. It is under these circumstances that the petitioner seeks a declaration that G.O. P. No. 645 dated June 30, 1986 is invalid to the extent of the withdr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritorial Assistant Commissioner to exercise such of their powers specified in sub-section (1). Section 17-A(2): Notwithstanding anything contained in this Act, the deferred payment of tax under sub-section (1) or sub-section (1-A) shall not attract interest under sub-section (3) of section 24 provided the conditions laid down for payment of the tax deferred are satisfied. 6.. Inasmuch as section 17(1) uses the words prospectively or retrospectively the power of cancellation or variation under section 17(3) which specifically refers to section 17(1), there is no difficulty in holding that section 17(3) should take in the power to cancel both prospectively and retrospectively. It is not difficult to think of cases whereby mistake or accident a notification made under section 17(1) requires cancellation or modification. In such cases the power can be exercised under section 17(3) retrospectively to give effect to the correct decision of the Government. But the question still remains whether the power can be exercised in such a manner as to deprive or take away the rights vested in a dealer on account of a previous notification granting exemption. In other words, can the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in [1995] 99 STC 21 (G. Packirisamy Co. v. State of Tamil Nadu). In that case the very power under section 17(3) of the Tamil Nadu General Sales Tax Act was considered. The Madras High Court has clearly held as follows: By the enactment of sub-section (1) of section 17 of the Tamil Nadu General Sales Tax Act the Legislature has given power to the Government to make subordinate legislation, by way of issuance of a notification to grant exemption or reduction of tax, either prospectively or retrospectively. No doubt true it is that under sub-section (3) thereof, the Government inheres power to cancel or vary any notification issued under sub-section (1) by the issuance of another notification. But the language of the said sub-section, if subjected to careful scrutiny, will reveal such a power is not taking in its fold the power to cancel or vary any notification with retrospective effect and to put it otherwise, such a power may be exercised only prospectively. 10.. On the side of the Revenue, three decisions have been cited. The first is [1987] 64 STC 304 (SC) (Shri Bakul Oil Industries v. State of Gujarat) in dealing with the power of the Government under the Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Maharashtra) and the Madras High Court in [1995] 99 STC 21 (G. Packirisamy Co. v. State of Tamil Nadu). On the other hand if we go by the principles laid down by the Supreme Court in Shri Bakul Oil Industries v. State of Gujarat [1987] 64 STC 304 and J.K. Cotton Spinning and Weaving Mills Ltd. v. Union of India [1988] 68 STC 421, we are able to deduce a balanced interpretation of law which will not affect either the assessee or the Revenue. At least such an interpretation will deal fairly with the assessee as well as the Revenue. Looked from the above angle we are of the opinion that a subordinate legislative authority cannot issue a notification retrospectively unless the power is specifically conferred on the authority. On this issue we have already held that section 17(3) of the TNGST Act takes in the power under section 17(1) of the TNGST Act. Inasmuch as section 17(1) confers the power to issue notification retrospectively, section 17(3) should also be invested with such a power. In fact, we have come across cases where section 17(3) is resorted to by the Government to give a benefit to an assessee with retrospective effect. For instance, if a ceiling limit is fixed for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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