9911796707
TMI Blog1998 (9) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... s an artificial element and cannot be termed to be a proper legislative exercise unless, however, the Legislature deems it expedient clearly and explicitly to have the operation retrospectively since the true principle is the lex prospicit non respicit (law looks forward and not back). Hence, retrospectivity being artificial and artificiality are-generally repugnant to law, it therefore follows that the courts apply the general presumption that an enactment is not intended to have retrospective effect. The power, however, of the Legislature to produce such an effect where it so desires is nevertheless undoubted and the general presumption therefore applies only unless the contrary intention appears. In "Maxwell on the Interpretation of Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers in these writ petitions is in regard to the rate of tax for sale of articles of jewellery made of bullion or specie or both, including precious stones. The contextual facts depict that by a Government Order being G.O. Ms. No. 252, Revenue, dated May 19, 1995. the tax leviable on the sale of jewellery manufactured out of such tax-paid gold, and sold in the State shall be 2 per cent, including those set with precious stones, as also in respect of precious stones loose, other than pearls at the rate of 2 per cent. Be it noted here that there was neither any confusion nor irregularity observed as regards payment of tax. Subsequently, however, on April 15, 1997 in another Government Order being G.O. Ms. No. 303 there was some modification so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April 15, 1997 for clause (a) read as follows: '(a) The tax leviable under the said Act in respect of sales of articles of jewellery made of bullion or specie or both, including precious stones shall be at the reduced rate of 3 per cent.' " 6.. In support of these three petitions, it has been contended that the State Government, admittedly realising the error or omission, issued the erratum, but it should have avoided the retrospectivity which is apparent on the face of the record. By the notification in G.O. Ms. No. 303, Revenue, dated April 15, 1997, clause (b) of the earlier notification in G.O. Ms. No. 252, Revenue, dated May 19, 1995, stands rescinded and by the errata issued after more than one year clause (b) of original clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearls remained at 3 per cent. This submission could have gained some ground, however, in the event of there being no subsequent notification or the Government Order by reason of which it has been recorded that since April 15, 1997 clause (a) ought to be read as is mentioned in the notification dated May 4, 1998 in replacement of earlier clause (a) which records that "clause (b) of the notification shall stand rescinded". The facts therefore depict that the rate of tax provided in respect of sale of jewellery including those set with precious stones at the rate of 2 per cent by the notification in G.O. Ms. No. 252 and which stands rescinded, but, subsequently reintroduced, though, with a higher rate of 3 per cent. There is no interregnum so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected tax from the customers the fault is theirs and question of dependency on the payment of tax to the Government on the collection of tax by the dealer from the customers does not and cannot arise. Liability to pay tax exists under the statute and in that view of the matter question of there being any merit in the writ petitions does not and cannot arise. 9.. There is no matter of doubt that the payment of tax is not dependant on the collection of tax by the dealer from the customers. Liability to pay the tax or fee arises under the statute. But that does not, however, clothe the Government to issue a subsequent notification imposing certain other liability which was rescinded on a particular date retrospectively. As noted above, ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey would not have proceeded in the manner as they have done. 11.. Be it noted that element of tax is not a direct tax involvement, but an indirect tax, and the incidence of which is always passed on to the customers. Some bills have been produced before us which go to show that the rate of tax charged was at the rate of 2 per cent for the period from April 15, 1997 to May 4, 1998. It is true that the A.P. Federation of Chambers of Commerce came to know of the notification in G.O. Ms. No. 303 on November 5, 1997. But, the issue arises as to whether intimation to the Federation by itself will prompt the assessing authority to assess at the enhanced rate in terms of the notification, which subsequently stands altered or modified by issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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