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TMI Blog2014 (4) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... the corresponding provisions of this Act - Section 81(2) creates a legal fiction - The saving u/s Section 81(2) is explicit and clear that all notifications issued under U.P. Trade Tax Act, 1948, which were in operation at the time of commencement of 2008 Act shall continue - Section 1(3) further provides that the Act shall be deemed to have come into force from April,1, 1948. - Section 1 thus provides that after amendment by U.P. Act No.31 of 1995 the U.P. Sales Tax Act shall be deemed to have come into force from April 1, 1948 - Thus, the mention of U.P. Trade Tax Act 1948 in Section 81 shall also cover the notifications and action taken under U.P. Sales Tax Act, 1948 prior to amendment by the U.P. Act No.31 of 1995. Effect of repeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Writ Tax No. - 1744 of 2010 - - - Dated:- 27-3-2014 - Hon'ble Ashok Bhushan And Hon'ble Mahesh Chandra Tripathi,JJ. For the Petitioner : N. C. Gupta For the Respondent : C.S.C. ORDER Heard Shri N.C. Gupta, learned counsel for the petitioner and Shri C.B. Tripathi, learned Special Counsel for the State. By this writ petition, the petitioner has prayed for quashing the circular dated 21.6.10 (Annexure No.3 to the writ petition) issued by Commission, Trade Tax, U.P. providing for taking of cash security while importing coal at the time of issuing 'Form-38'. Learned counsel for the petitioner submitted that under Section 19 of the U.P. Value added Tax Act, 2008 security can be taken in respect of any go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance has been placed provides as follows. :- Notwithstanding anything contained in sub-section(1) or sub-section (2) the Commissioner may, in respect of any goods notified by the Government in this behalf, by a general order in writing, direct that a cash security of such amount as may be specified in such order shall be required to be furnished by a dealer or person requiring any of the forms prescribed under this Act. Next provision which needs to be noted is Section 81 sub-section 1 and sub-section 2 ,which are relevant in the present case are as follows.:- (1) The Uttar Pradesh Trade Tax Act, 1948 (U.P.Act No.XV of 1948) (hereinafter in this section referred to as the repealed enactment) is hereby repealed. (2) Notwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) creates a legal fiction. The saving under sub-section 2 of Section 81 is explicit and clear that all notifications issued under U.P. Trade Tax Act, 1948, which were in operation at the time of commencement of 2008 Act shall continue. The submission which was pressed by learned counsel for the petitioner is that notification dated 31.3.86 was issued under U.P. Sales Tax Act, 1948 and saving under Section 81 is with regard to U.P. Trade Tax Act, 1948. The U.P. Sales Tax Act, 1948 was enacted to levy tax on sales and purchase of goods in U.P. The U.P. Sales Tax Act 1948 was extensively amended by U.P. Act No.31 of 1995. By the said amendment in Section 1 sub-section(1) name of the Act -U.P. Sales Tax Act, 1948 was amended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquired, accrued or incurrent under any enactment so repealed, or Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. The consequence of repeal mentioned under Section 6 takes place unless a different intention appears. Section 81 indicates a clear intention intending to continue notifications issued under the Trade Tax Act 1948 which are not in consistent to 2008 Act, hence the consequences mentioned under Section 6 of The General Clauses Act have to be read subject to Section 81 of 2008 Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of such right, privilege,obligation, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 46. The principle which has been laid down in this case is that whenever ..... X X X X Extracts X X X X X X X X Extracts X X X X
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