9911796707
TMI Blog2006 (4) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... To quash the notice for recovery from third parties issued in form 45 of the Commercial Tax Act, annexure P 7. To hold that the petitioner was not entitled to file appeal/revision because neither MPGST Act is applicable nor the MPCT Act was applicable during the impugned period. To issue any other writ or direction or order which this honourable court deems fit in the circumstances of the case to give relief to the petitioner. To consider the grievance raised in this petition, it would be necessary to state some facts of the case. The petitioner was running a small hotel with 7 rooms and dormitory at Burhanpur. The petitioner's liability to pay luxury tax was fixed with effect from November 1, 1995 by the Commercial Tax Officer, Circle Burhanpur, by order dated March 2, 2000, annexure P 3. The case of the petitioner is that he closed his business with effect from April 1, 1999 and the authority has wrongly assessed luxury tax and penalty on the petitioner. The petitioner is not liable to pay luxury tax and penalty. The luxury tax was brought on statute book with effect from August 16, 1988 and certain provisions of the M. P. General Sales Tax Act, 1958 (for short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95 and December 23, 2001 provisions of the MPGST Act were not applicable as the aforesaid Act was repealed with effect from April 1, 1995. Section 6 of the Luxury Tax Act has been amended by Act No. 34 of 2001 with effect from December 24, 2001 and certain provisions of the MPCT Act has been made applicable therein. Between the period April 1, 1995 and December 23, 2001 the provisions of both the Acts were not in force so the petitioner cannot be assessed by the respondents under the Luxury Tax Act. The contention is supported by the petitioner on the ground that certain provisions of the MPGST Act were applicable to the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (for short, the Entry Tax ) and after repeal of the MPGST Act the State immediately brought a Bill, annexure P2, and all the provisions of the Entry Tax Act were amended and the provisions of the MPCT Act were made applicable. (ii) The State knowing it well that certain provisions of the MPGST Act were made applicable under the Luxury Tax Act, but even after repeal of the MPGST Act those provisions were not substituted by the relevant provisions of the MPCT Act. This shows that intentionally the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Sales Tax Act and the rules, orders and notifications issued thereunder shall mutatis mutandis apply to a hotelier in respect of tax levied and payable under this Act as if those sections were mutatis mutandis incorporated in this Act and the rules, orders and notifications issued under those sections were mutatis mutandis issued under the relevant sections as so incorporated in this Act. Section 8(3) of the Act which provides penalty not exceeding five thousand rupees, subject to minimum of five hundred rupees, reads thus: 8(3) Where a hotelier required to obtain a registration certificate under sub-section (1) fails to apply for the same within the time specified in sub-section (2), the appropriate Sales Tax Officer may, after giving him a reasonable opportunity of being heard, direct him to pay by way of penalty a sum not exceeding five thousand rupees, subject to a minimum of five hundred rupees. The MPGST Act was repealed by the M.P. Vanijyik Kar Adhiniyam, 1994 with effect from April 1, 1995. Section 81 is in respect of repeal and savings which reads thus: Section 81. Repeal and saving. The Madhya Pradesh General Sales Tax Act, 1958 (No. 2 of 1959) sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) Notwithstanding anything contained in clause (i), any appeal, revision, reference or other proceedings arising under the repealed Act but preferred or initiated after the commencement of this Act, shall be heard and decided by the authority competent to entertain any appeal, revision, reference or any other proceedings in accordance with the provisions of this Act. By section 81 though the MPGST Act was repealed, but no provision was made in respect of applicability of the repealed Act in any other enactment in which the provisions of the MPGST Act were made applicable. A Bill was introduced by the State No. 30 of 2001 introducing an amendment in Luxury Tax Act. The Statement of Objects and Reasons of the aforesaid Bill reads thus: Under sub-section (3) of section 4 of the 'Madhya Pradesh Hotel Tatha Vas Grihon Me Vilas Vastuon Par Kar Adhiniyam, 1988 (No. 13 of 1988), a hotelier has to pay tax on the basis of fixed rates irrespective of the actual rent received. Now this provision is proposed to be modified so that a hotelier will pay tax on the basis of actual receipts of the luxury provided. 2.. It is also proposed that the reference of the Madhya Pradesh Vanij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the beginning. After the enactment of the M. P. Commercial Tax Act, the State also amended the Entry Tax Act. The Statement of Objects and Reasons in the aforesaid Bill reads as under: Statement of Objects and Reasons While presenting the budget for Financial Year 1994-95 the honourable Finance Minister declared in his budget speech that State Government has taken a decision that MPGST Act, 1958 shall be repealed and in its place M.P. Commercial Tax Act, 1994 shall be brought into force. Consequent to this declaration the M.P. Commercial Tax Bill, 1994 was introduced in the Vidhan Sabha and it has been passed by Vidhan Sabha. The authorities for the time being empowered to assess, reassess, collect and enforce the payment of tax under the MPGST Act, 1958, have been empowered to assess, reassess, collect and enforce the payment of tax under the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam also and reference with regard to the authorities under the MPGST Act and sections under the said Act has been made in the provisions of M. P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976. Therefore, with the enactment of M.P. Commercial Tax Act, 1994 and rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made applicable, after repeal of that Act and re-enactment of another Act, whether the provisions of the newly enacted Act may be made applicable or not. In this regard it will be profitable to refer certain apex court judgments. In Gauri Shankar Gaur v. State of U.P. AIR 1994 SC 169, the apex court held thus: It would thus be clear that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of the Legislature enacting the later Act. It is not by reference. Logically when provisions in the former Act were repealed or amended, they cannot unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act, is totally unaffected by any amendment or repeal, it would be subject to the exceptions enumerated hereinbefore. The statute being distinct and different each is to be judged with reference to its own source that emerges from its scheme, language employed and purpose it seeks to achieve. If a later Act merely makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions cannot be made applicable after re-enactment of law. In the present case from the perusal of section 6 of the Luxury Tax Act before the amendment in the year 2001 it is apparent that only certain sections of the MPGST Act were made applicable and not all the provisions of the MPGST Act were made applicable. After re-enactment the provisions are changed. The M.P. Commercial Tax Act may be made applicable only after the legislation specifically makes certain provisions of the Commercial Tax Act applicable under the Luxury Tax Act. Section 13 of the M.P. General Clauses Act specifically provides that where any M.P. Act repeals and re-enacts, with or without modification of any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. But, in this case what is the intention of Legislature may be seen. The Legislature is empowered to re-enact any law by giving it retrospective effect. The Legislature was well aware that under the Luxury Tax Act certain provisions of the MPGST Act were made applicable. Knowing it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e upon section 8 of the General Clauses Act to tide over the situation. In New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise, Allahabad AIR 1971 SC 454, this court held it to be possible to read the provisions of the Customs Act, 1962 in the place of Sea Customs Act, 1878 found mentioned in section 12 of the Central Excises and Salt Act, 1944. In State of Bihar v. S.K. Roy AIR 1966 SC 1995, this court held that by virtue of section 8 of the General Clauses Act, reference to the definition of the word 'employer' in clause (e) of section 2 of the Indian Mines Act, 1923 made in Coal Mines Provident Fund and Bonus Schemes Act, 1948 should be construed as references to the definition of 'owner' in clause (1) of section 2 of the Mines Act, 1952, which repealed and re-enacted the 1923 Act. Consequently, the references to section 562 of old Code in section 19 of the Probation Act and to section 5(2) of the old Act in section 18 of the Probation Act, respectively have to be inevitably read as references to their corresponding provisions in the newly enacted code and the Act. Consequently, for the conviction under section 13(2) of the Act the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute'. The apex court has specifically held that where a statute by specific reference incorporates the provisions of another statute as of the time of adoption, the subsequent amendment made in the referred statute cannot automatically be read into the adopting statute, but where a statute incorporates by general reference, the law concerning a particular subject as a genus, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time, in the generic law on the subject adopted by general reference. In this case the provisions of the MPGST Act were not made applicable by general reference, but by specific reference certain provisions of the MPGST Act were made applicable. When only certain provisions were made applicable, by re-enactment, provisions of the re-enacted Act shall not be made applicable even by the aid of section 13 of the M.P. General Clauses Act. Now another question arises that between April 1, 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature may be seen from the amending Act by which the provisions of the M.P. General Sales Tax Act, 1958 were substituted with the provision of the M.P. Commercial Tax Act. The intention of the Legislature is apparent and there is no scope to interpret it otherwise. The intention of the Legislature was to continue the provisions of the MPGST Act till December 23, 2001 in the Luxury Tax Act. In view of aforesaid discussion, it is held that under the M.P. Luxury Tax Act, the provision of the MPGST Act, 1958 shall continue up to December 23, 2001 and from December 24, 2001 the provisions of the M.P. Commercial Tax Act, 1994 shall be applicable. Accordingly the matter of the petitioner be dealt with by the authorities. In the result, this petition is allowed. The impugned orders by which the authorities have assessed the petitioner on the assumption that prior to December 23, 2001, the provisions of the M.P. Commercial Tax Act, 1994 shall be applicable to the Luxury Tax Act is not sustainable and accordingly the impugned orders are quashed. The matter is remitted back to the concerned Commercial Tax Officer to decide the matter afresh, in accordance with the directions issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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