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TMI Blog2016 (1) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the components or elements stated therein go into fixation of purchase price and that is the measure for computation of the tax, then, depending upon facts and circumstances in each case, the occupier can point out that not all components or elements are included in the purchase price in his case. That it is only the actual costs which have been taken into account or that they have not included all the heads simply because not all of them form part of the purchase price. Then, it would be open for the Assessing Officer/Commissioner to consider such pleas and material in support thereof. He would, then, compute the tax liability after duly considering them. However, it is the turnover of purchases meaning the aggregate of the amounts of purchase price paid and payable by an occupier, on which tax is levied and collected. The turnover is computed on the basis of the purchase transactions and the price paid for the same. Thus, it would be open for the Petitioners to point out that the turnover of purchases in their case involves payment of purchase price without the elements that are set out in the definition of the term "purchase price" referred above. The computation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Nashik District of Maharashtra. The Respondents to the Petition are the State, Commissioner of Purchase Tax (Sugarcane), Purchase Tax Officer (Sugarcane). The Petitioner also holds licence under the Act of 1962. It is stated that the Petitioner, at its factory, manufactures sugar and allied products out of sugarcane received from respective members, majority of whom are cultivators of sugarcane having their own land under cultivation. Apart from challenging the constitutional validity of sections 2, 3 and 6 of the Act of 1962 as amended from 1st October, 1995, the Petitioner also challenges the legality and validity of the letters dated 19th October, 1996, 20th November, 1996 and 6th January, 1997, issued to the Petitioner by Respondent No. 3. The Maharashtra Act IX of 1962 was enacted on 18th April, 1962. It is an Act to provide for levy and collection of a tax on the purchase of sugarcane for use in manufacture or production of sugar including Khandsari Sugar. The words commencing from the manufacture or production of sugar including Khandsari Sugar were substituted for the words the manufacture of sugar by Maharashtra Act 60 of 1974. Section 1 provides that this Act will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne for use in the manufacture or production of sugar. By section 6, every occupier liable to pay tax under the Act of 1962 shall, within thirty days after the end of every month to which the return relates, submit a monthly return in the prescribed form to the Commissioner. By section 6A, special provisions for transitional accounting year have been made. By section 7, provisions are made for assessment and collection of tax. By section 7A, penalty is imposed for failure to submit the return. By section 7B, there is a liability to pay interest if the occupier fails to submit the return. By section 7C, interest on amount of refund is provided for, whereas, by section 7D, interest on delayed refund is dealt with. By section 7E, refund of excess payment of tax is contemplated, whereas, by sections 8 and 9, there is a provision for Appeal and Revision to a person aggrieved. By section 10, Court fees on appeal and applications are provided for and by section 11, it is clarified that in computing the period laid down in sections 8 and 9, provisions of section 4 and 12 of the Indian Limitation Act, 1963 shall, so far as may be, apply. By section 12, finality is given to an assessment, imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fected the sugar units like the Petitioners. The earlier system was to allow the units to make payments of purchase tax by two installments, 50% payable during the season while the balance 50% was allowed to be paid in five equal installments during off season. The amended position in law, in nutshell, made departure from earlier system of levying tax on quantity basis coupled with the deductions that were provided under the unamended section 3(3). After the amendment, the tax is provided to be levied not only on the consideration that a buyer would pay to the seller, but two more additions were required to be made to the said consideration before arriving at the purchase price for the purpose of the Act, on which tax is sought to be levied. The direct result of such amendment is that the amounts which may have been charged by the cultivator for transporting the sugarcane to the factory gate or the expenses incurred for harvesting the sugarcane in the farm, would also be added to the consideration as forming part of the purchase price. The Petitioner is a member of the Federation, namely, Maharashtra State Co-operative Sakhar Karkhana Sangh Limited. Through that Federation, represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner then refers to several other Acts enacted by the Parliament and particularly the Essential Commodities Act, 1955, the control orders pertaining to sugarcane thereunder. They also refer to the provisions of Sale of Goods Act and all this is referred and relied upon to explain the procedure followed by the Petitioners throughout the year. The procedure commences from supplying the seeds to the cultivator to the point when the sugarcane so grown and severed from the land as per the programme formulated much in advance is explained. The emphasis is that sugar industry is a seasonal industry. The sugar season normally commences from October- November and culminates by April-May of the following year. However, the exact duration of the season entirely depends on the growth of sugarcane, which in turn entirely depends on the rainfall during rainy season. Sugarcane is the main raw material for the sugar industry and therefore, each sugar manufacturer would ensure adequate supply of raw materials. With that view in end, the Petitioner Societies have established a separate Cane Development Department. In paras 30, 31, 32 and 33, this is what is urged by the Petitioners:- 30. Wheneve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crop loan so granted to the individual cultivator, may be by a bank or the co-operative credit society, is again required to be adjusted against the sale proceeds of the sugarcane purchased from the cultivator in question. 32. Each factory would prepare its own harvesting programme on the basis of the entries in their register referred to hereinabove. In the interim period, the sugar factory would depute one of its officers known as Cultivator Officer or Cane Development Officer to the farm so as to ensure the proper growth of sugarcane planted by sugarcane grower. He would also guide the farmer about the proper quantity of fertilizers to be utilized depending on the analysis he may obtain of the contents of the soil in question. 33. Before the sugarcane is severed, or before the commencement of the crushing season as is generally known, the sugar factory in question would arrange to test the maturity of the cane by selecting at random the samples of sugarcane grown in the field. After successful testing is done at the laboratory, and if found fit, the sugar factory would give a notice to the cultivator concerned to stop watering the cane for a period of 15 days so that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported by the buyer/sugar factory to his factory, whether such transport is through a bullock cart, camel cart or by a motor truck or whether such a vehicle is owned by the buyer himself or not. As far as the cultivator is concerned his responsibility would cease when he delivers the severed sugarcane at the Collecting Centre and obtains the receipt acknowledging the delivery thereof, from the representative of the sugar factory. The general property over the goods therefore would pass from the cultivator to the sugar factory at the moment of delivery of the sugarcane in question by the cultivator to the Collecting Centre in question. The passing of the property to the sugar factory at the Collecting centre would not be affected by the fact that the crops in question are to be weighed at the factory gate with the help of weigh bridge and therefore the title to the goods, viz., sugarcane, would be deemed to have been passed from the cultivator to the sugar factory when the sugarcane severed from the farm are delivered by the cultivator to the representative of the buyer-factory owner at the Collecting Centre in question. It is by now well established that the delivery to the agent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made for the period covered by the amendment with effect from 1st October, 1995. Though there was no such assessment, Respondent No. 3, by his letter dated 19th October, 1996, called upon the Petitioners to provide the information sought therein. He called upon the Petitioner to furnish details and asserted that the sugarcane cost should include the cane harvesting expenses as also the expenses incurred for transporting the same. He therefore calls upon the Petitioners to furnish the details of amount spent on cane harvesting and the expenses incurred for transportation in the season 1995-96 so that he can ascertain the amount of cane purchase tax payable by the Petitioners. He also directed that information be provided about purchase tax payable during the month of May, 1996, June, 1996 and July, 1996. Annexure 'D' is a copy of this letter. 11) Following the letter at Annexure 'D', there is another letter dated 5th November, 1996, under which, Respondent No. 3 informed the Petitioner that certain amount of purchase tax was due in the month of May and June, 1996 in respect of 1995-96 season and the purchase tax on harvesting and transport expenses also was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ives exemption to the levy of tax on sale and purchase of sugarcane. The tax on purchase of the sugarcane is under the Act of 1962. It is therefore within the field of legislation provided by Item No. 54 of the List II of the VIIth Schedule to the Constitution of India. 15) The Commissioner explains that the amounts spent for transport charges will also form a part of the purchase price which is very clear from the language of the definition. It is submitted that the argument and challenge that if transport charges are paid by the factory, the same shall not form part of the purchase price is no longer available in view of the clear language of the definition. It is urged that there is no substance in the challenge to clause (iii) of section 2(f-b) of the Act of 1962. It is urged that the Petitioner is creating an unnecessary controversy. The argument is that amount of harvesting charges spent by the factory for harvesting the standing crop on the field of the farmers should not form part of purchase price, since the same has not been charged. However, by the amended definition the word charge has been substituted by word spent in clause (iii) of section 2(f-b). Even when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re adopted by others and they only made some factual additions thereto. It would be advantageous to refer to the arguments of Mr. Joshi. 19) Mr. Joshi contends that if the Act originally enacted and later on amended is perused, it would be evident that the same seeks to include the amounts spent or the expenditure incurred. Once the amount spent by the cultivator is sought to be made the basis of the levy, then, that necessarily means the expenditure incurred by the cultivator before delivery would be forming part of the purchase price. In other words, criticizing the definitions in section 2(f-a) (f-b)(ii), Mr. Joshi would submit that if these definitions and the sub-clauses therein are read together, it would mean that the aggregate of the amounts of purchase price paid as provided by section 2(g-a) is not the determinative or conclusive test. The attempt is to include other sums or amounts incurred or spent. That is not contemplated by law. He would submit that section 2(f-b)(ii) is not applicable to the factory. The sugar factory cannot be said to be spending the amount towards transport of sugarcane. The Revenue's interpretation that this forms part of the purchase pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 29th March, 2003 are questioned. The Petition also challenges the validity and correctness of the latest circular issued by the commissioner of Sales Tax dated 23rd November, 2009 being Trade Circular No. 31T of 2009 on various grounds set out in the Petition as amended. 21(B) Under the provisions of the Central Act No. 10 of 1955 i.e. the Essential Commodities Act, 1955 the term food crops is defined to include the sugarcane crop also. As contemplated under the said Act, the Central Government issued the Sugarcane (Control) Order, 1966 from time to time fixing the price for sugarcane payable by the sugar factory to the sugarcane grower. Accordingly, the Sugar Control Order was issued on 22nd November, 1996 for the relevant period. In addition to the price fixed by the Central Government under the provisions of the Essential Commodities Act, 1955, the impact of Sale of Goods Act will also have to be considered for determining the legality of the amendments impugned before this Court. 21(C) The procedure adopted by the sugar factories during the relevant period has been succinctly mentioned in paras 28 to 33. In a nutshell, it can be mentioned that the Petitioner had es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enged through the amendment to the Petition under the permission granted by this Court on 23rd April, 2010. According to the Petitioner, the Ordinance in question was issued solely with the purpose of frustrating the present Petition by disturbing the provisions brought in the enactment from 1st October, 1995 by the Maharashtra Tax Laws (Levy and Amendment) Act, 1995. (Act XV1 of 1995). The said Ordinance VI of 1998 did not contain any validating and saving clause, therefore the impugned three letters being Exhibits 'D', 'E' and 'E1' be declared as without jurisdiction. 21(H) In addition thereto, the State Government having realised the position of law regarding its competency to charge purchase tax on the expenses incurred by the Petitioner in respect of transportation and other expenses; by including such expenses to be part of the purchase price; by the Maharashtra Tax Law (Levy and Amendment) Act, 2002 the definition of purchase price so amended with effect from 1st October, 1995 was deleted with effect from 1st May, 2002 by deleting the definitions under clause (f-a), (f-b) and (g-a). The procedure of levying purchase tax that was adopted prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g part of the purchase price of sugarcane; was exempted without any condition; in case of purchases from 1st October, 2002 to 31st March, 2003, the same were completely exempted under Entry 3 of the said Notification dated 29th March, 2003. 21(M) The said development was clarified by the Commissioner of Sales Tax under Circular 12T of 2003. In addition thereto, the said circular also confirmed the fact that the amendment through sections 10, 11 and 12 of the Maharashtra Act 20 of 2002 were brought into force with effect from 1st May, 2002. The said circular, however, misinterpreted the amendments by the Maharashtra Act 8 of 2003. The amendment to section 2 of the Amendment Act 20 of 2002 was construed to mean that such an amendment automatically amended the duly amended provisions of sections of the main Act by sections 10, 11 and 12 of the Amendment Act, which already became part of the main enactment with effect from 1st May, 2002. 21(N) Such an erroneous version by the Respondent was again repeated by another Trade Circular 31T of 2009 dated 23rd November, 2009. Under the said Circular, the Respondents have gone a step further by mentioning that the deleted provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax is on the sugar factory, spent word relates to the sugar factory and not grower). The hitherto amendment in 1995 was leviable on weight basis and from 1995, basis of levy of tax is changed to ad-volarem. Though there is no challenge to ad-volarem levy of purchase tax, real grievance is of adding the amount spent on transportation and money spent for any thing done before delivery of the sugarcane to the dealer. The challenge is only on the basis of measure for the purpose of calculating the percentage of purchase price. In other words, the challenge is the method of calculating the sale price to include amount spent as stated above in purchase price. 22(B) The answer to the challenge is no more res-integra. In Goodrick Group's case followed by case of Bombay Tyre International of the Hon'ble Supreme Court the ratio of which is applied in the judgment in case of Baramati Grapes Ltd. It is clearly held that the measure of tax and incidence of tax are different. If the levy is relatable to field of legislation, in present case, Entry 54 of 7th Schedule to the Constitution of India the State or Center has full, unbriddled power to fix the measure of tax that is to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion has been levied on goods carried, it would be open to the legislature to prescribe the machinery for recovering the said tax. 22(F) If the impugned legislation invades Entry 52, it must be repelled by this Court. But, Entry 54 in List II of the 7th Schedule empowers the State to legislate for taxes on purchase of goods and if that is attracted, in pith and substance by the Entry, legislative incompetence cannot void the Act. What matters is not the name of the Act but its real nature, its pith and substance. Tax on sale or purchase must be on the occurrence of a taxing event of a sale transaction. Beyond that is left to the free play of the legislature, subject, of course, to the contra-indications about capricious, arbitrary or irrational features. It is a situation, cultivated by familiarity to consider that all sales tax must necessarily have nexus with the price of the commodity. Of course, price as basis is not only usual but also safe to avoid uneven, unequal burdens, although it is conceivable that a legislature can regard prices which fluctuate frequently, as too impractical to tailor the purchase tax. It may even be, in rare cases, iniquitous to link purchase tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires and what are not. 22(M) Mr. Sonpal has relied upon the following judgments:- (i) Baramati Grape Industries Ltd. and Ors. vs. The State of Maharashtra and Ors., 1997(3) Bom. C. R.190. (ii) Black Diamond Beverages and Anr. vs. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta and Ors., (1998) 1 SCC 458. (iii) Chengalvarayan Co-operative Sugar Mills Ltd. vs.State of Tamil Nadu, (1997) 105 STC 497. (iv) Hindustan Sugar Mills vs. State of Rajasthan and Ors. (1978) 4 SCC 271. (v) E. I. D. Parry (I) Ltd. vs. Asstt. Commissioner of Commercial Taxes and Anr. and connected cases, (2000) 2 SCC 321. (vi) Jiwajirao Sugar Company Limited and Anr. vs. State of Madhya Pradesh and Anr. (1995) 96 STC 13 (MP). (vii) Ponni Sugars (Erode) Ltd. vs. Deputy Commercial Tax Officer (2005) 142 STC 543 . (viii) Union of India and Ors. vs. Bombay Tyre International Ltd. and Ors., AIR 1984 SC 420 . (ix) Maharashtra Chamber of Housing Industry and Ors. vs. State of Maharashtra and Ors., (2012) 51 VST 168 (Bom.) . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They have also challenged the legality and validity of the three letters so also the Exemption Notification under section 12B dated 29th March, 2003 Annexure 'H' read with Circular No. 12T of 2003 at Annexure 'I' dated 31st March, 2003. The Petitioners have also challenged the amendment of the Maharashtra Act 8 of 2003. 24) The Petitioners also state that the Maharashtra Act IX of 1962 is an Act to provide for the levy and collection of a tax on purchase of sugarcane for use in the manufacture of sugar and which words were then substituted with the words manufacture or production of sugar including Khandsari Sugar . The Statement of Objects and Reasons leading to the enactment are relevant and some of the clauses thereof are reproduced herein below:- STATEMENT OF OBJECTS AND REASONS. The Supreme Court in the case of Diamond Sugar Mills Ltd. versus State of Uttar Pradesh (1961) I. S. C. J. 652, held the U. P. Sugarcane Cess Act, 1956, ultra vires and beyond the competence of the State Legislature. Parliament thereupon enacted the U. P. Sugarcane Cess (Validation) Act, 1961 (4 of 1961) to protect the taxes collected under the U. P. Act. Later, Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State for cash or deferred payment or other valuable consideration and includes any supply by a shareholder to a co-operative society or limited company for cash, deferred payment or other valuable consideration. 2(f-b) purchase price means aggregate of the following sums, - (i) the amount of valuable consideration paid or payable by the occupier for purchase of sugarcane made by the factory or by the unit; (ii) the amount spent towards transport of sugarcane (whether separately spent or not); and (iii) any other sum spent for anything done in respect of the sugarcane at the time of or before delivery thereof. 2(g-a) turnover of purchases means the aggregate to the amounts of purchase price paid and payable by an occupier during a given period. 26) These definitions indicate as to how the reference is to a factory where manufacturing process connected with the production of sugar and by the means set out in the definitions is undertaken. A licence is required for purchasing sugarcane for use in the manufacture or production of sugar and that is granted under the Act. The term occupier is defined so that an officer is identified for the purposes of disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase any sugarcane for the purpose of the use thereof in the manufacture or production of sugar in a factory or a unit. By the sub-sections of this section 5 as also by sub section (1) of section 6, it is apparent that the licence is for purchasing sugarcane for the purpose of use thereof in the manufacturing or production of sugar in a factory or a unit. By sub section (1) of section 6, every occupier liable to pay tax under this Act is obliged to file a return in the prescribed form and showing a turnover of purchases of sugarcane purchased by him for above use. Thus, upon a licence being issued, sugarcane can be purchased and for use in the manufacture or production of sugar in the factory or unit. The occupier of factory is obliged to file a return depicting above details. The provision following the same, namely, assessment and collection of tax would indicate as to how a Commissioner shall assess the tax and by a single order of assessment payable in respect of the period, in any year to which all the returns under section 6 collectively relate. If the amount has already not been paid, then, the Commissioner shall issue a notice and serve it by requiring the payment of the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Petitioner, then, there are remedies open in law. We cannot presume on the strength of the arguments of the Petitioners' Counsel that the tax is not on turnover of purchase of sugarcane, but on expenditure or amount incurred on cultivation and supply of sugarcane. Thus, expenses of this nature incurred by the factory or unit is the measure of the tax according to the Counsel. However, the levy of tax cannot be confused with the measure of tax. The levy is on purchase of sugarcane used for manufacture or production of sugar in a factory or unit. If that is the transaction or dealing on which the tax is levied and for such transaction or deal to be struck, a licence is required, then, all the more we cannot agree with Mr. Joshi. 30) Mr. Joshi's arguments as noted above are based on paras 28 to 33 of the Petition argued by him. We are not going by individual facts and circumstances of each Petitioner/factory. It could be open for it to point out to the Assessing Officer during the course of arguments that its mode of acquisition or purchase of sugarcane is as explained in the paragraphs 28 to 33 of Writ Petition No. 2060 of 1997 or somewhat different or distinct t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with law that these provisions have been inserted. Thus, we are in complete agreement with Mr. Sonpal on the legality and validity of the tax. It is not unconstitutional and ultra vires as alleged. 31) Mr. Joshi relied upon Entry 54 in the State List (List - II), which enables the State to impose taxes on the sale or production of goods other than newspapers, subject to the provisions of Entry 92A of List I. The argument is that the subject levy is covered by this Entry. The further argument is that this Entry does not enable State legislature to levy tax in such a manner so as to cover expenses that may or may not have been incurred. We are unable to accept this contention and for more than one reason. The term tax on the sale or purchase of goods has also been defined in the Constitution of India itself and by an amendment particularly by (Forty sixth Amendment Act, 1982). In Article 366 (29A), the term tax on the sale or purchase of goods is defined in a conclusive manner as under:- 366(29A) tax on the sale or purchase of goods includes - (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Ordinance VI of 1998 issued on 1st May, 1998 are also ultra vires the Act. According to the Petitioners, the Ordinance was issued solely with a purpose of frustrating a challenge to the provisions brought in the law from 1st October, 1995. This argument has no substance, simply because an Act of the competent legislature can be amended from time to time. It is presumed also in matters of imposition of tax that the legislature understands and appreciates the economic realities. It performs a balancing act and while plugging loopholes and removing defects and lacunas, it has full freedom to make changes in the tax structure or in the process of assessment and collection of tax. Therefore and in the absence of any constitutional prohibition, the legislature was not prevented from amending the Act even during the pendency of these Petitions. Secondly, the executive is a sole Judge of the urgency and if it is required to act expeditiously to subserve larger public interest, then, it is equally empowered to issue an Ordinance. This contention therefore must be negatived. 34) Then, the argument is that the Act, which was enacted in 1962, came to be amended. The legislature in enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification in the Official Gazette, as developed areas or undeveloped areas, so however that the rate or rates so specified shall not exceed four paise per kilogram of sugarcane so purchased. (3) for the purpose of the levy of tax, as provided in sub-section (2), there shall be deducted from the gross weight of sugarcane so purchased, such portion thereof representing the average weight of the top of the sugarcane plant consisting of pith devoid of any sugar content and leaves and other trash usually present in the sugarcane, as may be prescribed; and the tax shall be levied only on the remaining weight of the sugarcane after such deduction has been made. (4) The tax levied under the foregoing subsections shall be paid by the occupier of the factory or of the unit, as the case may be, at such intervals and in such manner, as is hereinafter provided. 12. Amendment of section 6 of Mah. IX of 1962. - In section 6 of the Purchase Tax on Sugarcane Act, in subsection (1), for the words the turnover of purchase of the words in kilograms the total quantity of shall be substituted. 35) Thus, the argument is that these sections came into force on 1st May, 2002. In eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995. Mr. Sonpal then invited our attention to the Maharashtra Tax Laws (Levy and Amendment) Act, 2002 and the amendments contained in Chapter V thereof proposing changes in the Act of 1962. That deleted clauses (f-a), (f-b) and (g-a) in section 2 of the Act of 1962. It also substituted section 3 and made certain changes in section 6 of the Act of 1962. However, the further Act to amend certain Tax Laws in operation in the State of Maharashtra, namely Maharashtra Act VIII of 2003 substituted section 12B for the earlier section in the Act of 1962 and clarified that the Maharashtra Tax Laws (Levy and Amendment) Act, 2002 insofar as it amended the Act of 1962 and brought them into effect from 1st May, 2002 shall be deemed to have been deleted with effect from 1st May, 2002. Thus, the amendment sought to be made to the Act of 1962 by the Maharashtra Tax Laws (Levy and Amendment) Act, 2002 never came into effect. 38) We find substance in the contentions of Mr. Sonpal, because by the 2002 Amendment Act, the legislature, vide section 10 thereof, sought to delete section 2(f-a), (f-b) and (g-a) from the Act of 1962. Though that deletion came into effect from 1st May, 2002, that provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been shown any such statutory prescription as far as India is concerned. The principle that repeal of a repealing Act does not necessarily revive what is repealed by the repealing Act thus cannot be stretched and applied to the present case. Rather the Principles of Statutory Interpretation as summarised by Justice G. P. Singh in 13th Edition, 2012 would show that the common law rule of revival has been abrogated by section 6(a) and 7 of the General Clauses Act, 1897. However, we are not concerned with such a wider controversy. In the present case, the amendment made by the Amendment Act of 1st May, 2002 did not come into effect at all. That has been clarified now by the Maharashtra Act VIII of 2003. Once these amendments made with effect from 1st May, 2002 stood deleted from a prior date, then, the consequences are clear. No assistance can be derived from the principle which Mr.Joshi seeks to apply. Now, it is apparent that if one statute is repealed by a second which in turn is repealed by a third, the effect is to revive the first statute unless a contrary indication is indicated in the third statute. In such circumstances, we do not see any reason to accept the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are taken care of and duly considered, then, on facts, we are not required to go into the rival contentions. If the assessment is not in accordance with law or the assessment is pending and not finalised in a given year, it would be open for the Petitioners to point out that no notices of demand can be issued straight away unless the amount due and payable is crystallised and ascertained. It is needless to clarify that unless the process is complete, recovery by coercive means is not permissible in law. Therefore, we need not consider the legality and validity of the demand notices in the light of this settled position in law. It would be open for the Petitioners to resist the demand by all means provided in law. We are, therefore, not required to consider factual aspects any further. All the more, as the Department has understood the legal position correctly vide their Circular No. 23-T of 2003 dated 22nd October, 2003. In paras 2 and 3 of this Circular, the Commissioner has clarified that no letter making a demand shall be issued even in the form of request, unless the party concerned is heard and appropriate statutory orders are passed. Though this is issued by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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