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TMI Blog2008 (9) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition is filed, which is maintainable. However, it was contended by the Revenue that in view of the repeal of the Special Tribunal Act, a revision would lie to the High Court under section 38 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the TNGST Act") as it stood prior to the 1992 Act. That contention was rejected by the Division Bench by observing as follows: "...4. The effect of the abolition of the Special Tribunal has already been considered by a Division Bench of this court in T.C. Nos. 37, 38 and 115 of 1998 (Mahashree Aruna Chemicals v. State of Tamil Nadu) by judgment dated April 1, 1999, which was followed by us in T.C. No. 38 of 2000, by judgment dated June 12, 2006 (between Tvl. Mhitraa Enterprises, 33, GVK Buildings, 10th Avenue, Chennai 83 and the State of Tamil Nadu). 5.. Even though the orders sought to be challenged in those matters arose under the Central Sales Tax Act and here, the order sought to be challenged arises under the Tamil Nadu General Sales Tax Act, the issues raised are one and the same, namely, the effect of abolition of the Special Tribunal. In the judgment in T.C. No. 38 of 2000 dated June 12, 2006, it is he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy of a general tax on the sale or purchase of goods in the State of Tamil Nadu. Various terms have been defined under section 2 of the Act. Sections 3, 3A, 3B, 3C, 3D, 3E, etc., are charging sections. Section 4 provided for levy of tax in respect of declared goods. Section 7A provided for levy of purchase tax. Section 11 provided for assessment of tax. Section 12 provided for procedure to be followed in assessment proceedings. Section 16 provided for revision of assessment on escaped turnover. As against the assessment/revision of assessment made under the abovesaid provisions, the TNGST Act provided for appeal under sections 31 and 31A to the Appellate Assistant Commissioner and Appellate Deputy Commissioner. Sections 32 and 34 provided for suo motu power as against the order of assessment and appellate order, respectively, by the authorities concerned. As against the order passed under sections 31 and 31A, a further appeal was provided under section 36 to the Tamil Nadu Sales Tax Appellate Tribunal. Section 37 provided for a statutory appeal to the High Court against the order passed by the Joint Commissioner of Commercial Taxes under section 34. Section 38 provided a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts over which the Special Tribunal Act was made applicable are the TNGST Act, 1959, Tamil Nadu Additional Sales Tax Act, 1970 and Tamil Nadu Sales Tax (Surcharge) Act, 1971. The Tamil Nadu Taxation Special Tribunal Act, 1992 came into effect on December 22, 1995 and the Special Tribunal started functioning thereafter. All the writ petitions and tax cases that were pending before the High Court during that period were transferred to the Special Tribunal. The writ petitions so transferred were taken on file by the Special Tribunal as transferred original petitions and likewise tax case (appeals) and (revisions) were taken on file as transferred appeals and revisions. Fresh original petitions were filed under section 6 and appeals and revisions under sections 37 and 38 of the TNGST Act were filed before the Special Tribunal. The Special Tribunal so constituted lived for a short period and the 1992 Act was repealed by Act 34 of 2004 in toto from July 13, 2005. As per section 3 of the Act No. 34 of 2004, all the matters and proceedings pending before the Special Tribunal as on July 13, 2005 shall stand transferred to the High Court and the High Court shall proceed with such matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the 1992 Act cannot be regarded as a standalone legislation. Section 24 of the Act provided that the TNGST Act, 1959 would have the effect subject to the modification. The modification is by inserting the term "Special Tribunal" in the place of "High Court". After such modification, the High Court has no power to exercise its jurisdiction under sections 37 and 38. The Legislature has also understood the amendment clearly. So, they introduced section 38A for constitution of Sales Tax Settlement Commission, where section 39 was originally placed. After repeal of the 1992 Act, rightly, the Legislature re-introduced section 39 by Act No. 11 of 2005 (Ordinance No. 4 of 2005). He contended that the words "shall have the effect as if" imply substitution and not just for the purpose of interpretation taking clue from the case of State of Bombay v. Salat Pragji Karamsi reported in AIR 1957 SC 517. He further contended that no right of appeal can be conferred except by express words. Unless there is amendment to the provision, the High Court cannot exercise the appellate or revisional jurisdiction under sections 37 and 38 of the TNGST Act. The learned Senior Counsel relied on a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, for the words 'High Court' wherever they occur, the words 'Special Tribunal' had been substituted. (b) in sub-section (1), for the words 'Board of Revenue', the words 'Joint Commissioner of Commercial Taxes' had been substituted; (8) in section 38, including the marginal heading, for the words 'High Court' wherever they occur, the words 'Special Tribunal' had been substituted; (9) after section 38, the following section shall be inserted, namely:- '38A. Special powers of revision by Special Tribunal.-(1) Notwithstanding anything contained in this Act, the Special Tribunal may, of its own motion or on application, call for and examine the record of the Appellate Assistant Commissioner, the Deputy Commissioner, the Joint Commissioner of Commercial Taxes or the Appellate Tribunal in respect of any proceeding under this Act to 'satisfy itself as to the regularity of such proceeding or the correctness or legality or propriety of any decision passed or order made therein, and if, in any case, it appears to the Special Tribunal that any such decision or order should be modified, annulled, reversed, or remitted for rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble corollaries of that state of affairs 'per Lord Asquith of Bishopstone in East End Dwelling Co. Ltd. v. Finsbury Borough Council [1952] AC 109 (HL) at 133." The word "text", in its dictionary meaning, means "subject or theme". When an enactment amends the text of another, it amends the subject or theme of it, though sometimes it may expunge unnecessary words without altering the subject. (vide Jethanand Betab v. The State of Delhi reported in AIR 1960 SC 89). The amendments are usually made to a statute or to statutory provisions by means of substitution, insertion or omission. If such amendments are made, they can be regarded as textual amendments. For example, the Finance Act, 1999 made certain extensive amendments to the Income-tax Act. Section 3 of the Finance Act, 1999 provides for amendment to section 2 of the Income-tax Act. That amendment has been incorporated by means of substitution. For example, in section 2 of the Income-tax Act, (a) in clause (1B), in sub-clause (iii), for the words "nine-tenths", the words "three-fourths " shall be substituted with effect from 1st day of April, 2000, etc. Section 7 of the Finance Act, 1999 provides for insertion of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TNGST Act, the words used "as if" had been omitted. Section 39 of the TNGST Act has to be imagined as omitted for the purpose of working of the 1992 Act. There is no effacement of the provision in reality from the statute book. The TNGST Act has to be read as if the words "High Court" were not found in section 39 for the purpose of simultaneous and smooth working of both the TNGST Act and the 1992 Act. The words used for inserting section 38A in section 24(9) of the 1992 Act are "shall be inserted". This has the effect of amending the TNGST Act by introducing a new provision to the Act itself. Now that the entire 1992 Act has been repealed in its entirety, the shadow or eclipse over the provision of sections 37 and 38 of the TNGST Act stands removed with the result that the provisions begin to operate with full force in respect of dispute arising under the TNGST Act and the appellate and revisional power of the High Court stands re-activated. The intention of the Legislature is clear and unambiguous as it did not intend to disturb the existing machinery available under the TNGST Act and at the same time avoid the anomaly of the existing two parallel legislations to decide and adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the order. One of the enactments was the Bombay Act. Clause 4 of the said order is that the authorities and territories mentioned in the first column of the table hereunder extracted were references to the authorities and territories, respectively, mentioned opposite thereto in the second column of the said table. and under clause 6 of the said order, any court may construe the provisions of any enactment, rule, regulation, general order or bye-law applied to Kutch or any part thereof by the said order, with such modifications not affecting the substance as may be necessary or proper in the circumstances. On August 1, 1949, Kutch became a Chief Commissioner's Province under the States Merger (Chief Commissioner's Provinces) Order, 1949. Clause 2(1)(c) of the said order provided that from the appointed day, the parts of States specified in the Second Schedule to the order shall be administered in all respects as if they were a Chief Commissioner's Province, and shall be known as the Chief Commissioner's Province of Kutch. The Second Schedule gives the parts of the pre-1947 Indian States which were to comprise the Chief Commissioner's Province of Kutch. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated, the construing state of affairs which is not there in the statute or which is not real by means of the change incorporated in 1992 has automatically vanished and the original provision that stood prior to coming into force of the 1992 Act came into existence, because of the repeal of 1992 Act. The intention and the scope of the repeal has been considered by the Supreme Court in a catena of decisions and the Supreme Court has uniformly held that the general rule of construction is that the repeal of a repealing Act does not revive anything repealed thereby. But the operation of this rule is not absolute. It is subject to the appearance of a "different intention" in the repealing statute. "Repeal" connotes abrogation or obliteration of one statute by another, from the statute book as completely "as if it had never been passed"; when an Act is repealed, "it must be considered (except as to transactions past and closed) as if it had never existed". Repeal is not a matter of mere form but one of substance, depending upon the intention of the Legislature. If the intention indicated expressly or by necessary implication in the subsequent statute was to abrogate or wipe out the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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