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TMI Blog2015 (2) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... Income- tax Act, 1961, was not applicable, but, the said writ petition was withdrawn with liberty to approach to the competent authority/forum and, thereafter, the petitioner succumbed to the Income-tax authorities under the Income- tax Act, 1961, and presently, various proceedings are pending before the appropriate forums under the said Act. The petitioner has also claimed the refund of ₹ 76,63,655 together with interest till the date of realisation. During the course of arguments, Mr. Pal, on instructions, fairly conceded that the previous interest or the interest pendentelite on the said amount may not be awarded to the petitioner but the State may be directed to refund this amount within the time-frame prescribed by this court. We allow this writ petition and record our findings that after extension of the Income-tax Act, 1961, to the State of Sikkim with effect from April 1,1990, the Sikkim State Income-tax Manual, 1948, stands repealed and the assessments made thereunder for the accounting years 1996-97 to 2004-05 (assessment years 1997-98 to 2005- 06) are without authority of law, non-est and nullity.Consequently, the impugned order dated July 7, 2006 (annexure P6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government, appointed the 1st day of April, 1989, as the date on which the Income-tax Act, 1961, shall come into force in the State of Sikkim in rela tion to the previous year relevant to the assessment year commencing on the 1st day of April, 1989. By virtue of section 26 of the Finance Act, 1989 (see [1989] 177 ITR (St.) 167, 182 ), the Income-tax Act, 1961, was made applicable to the State of Sikkim from the previous year relevant to the assessment year commencing from April 1, 1990, thereby extending the date of applicability of the Income-tax Act, 1961, by one year from the date as specified in the earlier notification dated February 23, 1989. 2.2 The petitioner-university was established in the year 1995 by an enactment of the State Government, namely, the Sikkim Manipal University of Health Medical and Technological Sciences Act, 1995, and it started imparting various courses by constituting its unit. The petitioner-university was included in the list of universities maintained by the University Grants Commission (UGC) under section 2(f) of the University Grants Commission Act, 1966, on December 9, 1998. 2.3 On July 7, 2006, the Joint Secretary/ITO, Income and Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, inter alia, on the grounds that the Sikkim State Income-tax Manual, 1948, having been repealed, was not applicable upon the petitioner and the respondent authorities were not entitled to assess and demand Income-tax from the petitioner from April 1, 1990, when the Income-tax Act, 1961, became applicable to the State of Sikkim. However, when no relief was granted on those representations, the instant writ petition was filed. 3. Mr. S. Pal, learned senior counsel appearing on behalf of the petitioner, has argued that the Sikkim State Income-tax Manual, 1948, was repealed after the extension of the Income-tax Act, 1961, to the State of Sikkim with effect from April 1, 1990. The petitioner is governed by the Income-tax Act, 1961, and has now been assessed thereunder. Therefore, any Income-tax imposed or levied under the Sikkim State Income-tax Manual, 1948, and the proceedings for levying such tax drawn by the State authorities, vide the assessment order dated July 7, 2006, were without jurisdiction and nullity. In terms of article 265 of the Constitution of India, no tax can be levied or collected except by authority of law. Therefore, the impugned assessment order dated July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h effect from the previous year relevant to the assessment year commencing on the 1st day of April, 1990, the provisions of the Income-tax Act, 1961, shall come into force in the State of Sikkim with effect from the previous year relevant to the assessment year commencing on the 1st day of April, 1990, and any law corresponding to the Income-tax Act, 1961, which, immediately before such commencement, was in force in the State of Sikkim shall be deemed to have effect in relation to the previous year beginning with the 1st day of April, 1988, and ending with the 31st day of March, 1989, and shall continue in force for the purpose of the levy, assessment and collection of Income-tax or for the purpose of imposing any penalty or for any other purposes whatsoever connected with, or incidental to any of the purposes aforesaid under such law. 8. Thereafter, making a clarification on the point of the commencement of the Income-tax Act, 1961, in the State of Sikkim, a Circular bearing No. 550 (see [1990] 182 ITR (St.) 114 ) (annexure P3) was issued and it was clarified that such a provision under section 26 of the Finance Act, 1989, became necessary as the earlier notification issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r beginning on April 1, 1989. In reply to the said communication dated August 20, 2007, the State Government accepted the above proposal and a communication dated August 21, 2007 (annexure R3), in this regard, was sent to the Government of India. Then a resolution (annexure R4) was passed on the direct tax laws adopted by the Sikkim Legislative Assembly on June 10, 2008, which also indicates that the Sikkim State Income-tax Manual, 1948, would stand repealed by implication. 11. Neither the above documents nor the above events have been disputed by any party. Therefore, it is clear that on the stand taken by both the Governments, the Sikkim State Income-tax Manual, 1948, stood repealed on April 1, 1990, by necessary implication, after extension of the Income- tax Act, 1961, to the State of Sikkim. However, it still requires to be tested for determination of the correct legal position in this regard as the law(s) neither operate nor cease to operate on the admission of the parties and they have to be interpreted for every purpose, including its commencement, enforcement, continuance, repeal and other like instances, when required, on various provisions contained therein and the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning and effect both of the earlier and the later statute. Until this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them. The meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the earlier law shall cease or shall only be supplemented. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict, should also, so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statute relating to the same subject matter, that the former, being the later expression of the Legislature, may be held to prevail, the prior law yielding to the extent of the conflict. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a repeal will not be inferred. The necessary questions to be asked are : (1) Whether there is direct conflict between the two provisions. (2) Whether the Legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law. (3) Whether the two laws occupy the same field. When the court applies the doctrine, it does no more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The court leans against implying a repeal. To determine whether a later statute repeals by implication an earlier statute, it is necessary to scrutinise the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. 16. In the instant case, the Income-tax Act, 1961, was already in force, which was extended to the State of Sikkim on April 1, 1990. Thus, it was not an instance of enacting a new taxation law for the State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also note that in the earlier matter, nothing was finally determined by the court. The writ petition was filed, ad interim order was taken and ultimately, it was withdrawn with liberty to approach to the competent authority/forum for redressal of the grievances stated in the writ petition. Thus, the above controversy was not finally determined by the court. 20. Learned Additional Advocate General also argued on the doctrine of approbation and reprobation. This is a general principle that a party cannot be allowed to approbate and reprobate. It is based on the maxim allegans contraria non est audiendus, which means He is not to be heard who alleges things contradictory to each other (vide Broom's Legal Maxims (supra) page 103). But before applying this doctrine one must ascertain that there has to be estoppel in one form or the other. If there is no estoppel, there would be no question of the doctrine coming into operation (vide Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593). 21. In CIT v. V. MR. P. Firm, Muar [1965] 56 ITR 67 (SC) ; AIR 1965 SC 1216, it was held that the doctrine of approbate and reprobate is only a species of estoppels ; it applies only to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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