9911796707
TMI Blog1963 (7) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... to be struck down; (v) Sub-section (1A) of Section 40 of the Act has to be struck down even on the ground that a right which had become barred, cannot be revived by the new Act; and (vi) Sub-section (:A) of Section 40 of the Act is void as it contravenes the equality clause found in Article 14 of the Constitution of India. 2. The material facts found in these petitions may be briefly summarised thus: Original assessment to sales tax was made either under the Mysore Sales Tax Act 1953. Assessments made were set aside in appeal or revision with directions that re-assessment shall be made in the light of the directions given in the order. Accordingly, the petitioners were re-assessed. These reassessments in law are only assessments of escaped turnover -- See: S. Subbarayappa and Sons v. State of Mysore, 1962-40 Mys LJ 234. By the time steps were taken to re-assess the petitioners, the time for re-assessing escaped turnover had become barred either under Rule 28 of the Rules framed under the Mysore Sales Tax Act, 1955 or tinder Section 15 of the Bombay Sales Tax Act, 1953. But the period of limitation for assessing the escaped turnover was extended to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) any tax or licence fee may be assessed or re-assessed or recovered under the Principal Act as amended by this Act, or under the relevant repealed enactment as amended by Section 4 of this Act. (2) For the removal of doubts it is hereby declared that the provisions of Section 12A of the principal Act as amended by this Act, and Subsection (1-A) of Section 40 of the principal Act shall apply to any assessment or re-assessment to tax or licence fee on. the turnover of a dealer or other person in respect of any year or period ending before the date of commencement of this Act, or the date of commencement of the principal Act, as the case may be, and any notice issued and assessment made whether before or after the date of commencement of this Act, in accordance with Sub-section (i) of Section 12A of the principal Act as amended by this Act or in accordance with the corresponding provision of any of the enactments repealed by Section 40 of the principal Act or the rule made under any such repealed enactment, shall, notwithstanding any judgment or order of any Court, tribunal or other authority, be deemed to be validly issued of made, as the case may be, and no such no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislation, then in the absence of clear words to the contrary in the Statute the presumption is that the legislation in question is prospective in character. It was so laid down in Debi Dutt v. T. Bellan, . In this case, as in all others, in order to find out the legislative intention, which in the final analysis is the governing factor we have to go to the language of the Statute. 5. The legislatures have plenary powers over the legislative field allocated to them. Unless prohibited by the Constitution they can enact not only prospective legislation but also retrospective as well as retroactive legislations. They can resurrect laws which are dead and amend them, (See the decision of this Court in W. P. No. 287 of 1960 (Mys) ). 6. When we speak of a debt being barred, we really mean the remedy is barred. The bar of remedy does not wipe out the 'debt'. Therefore, if the bat is removed there can be no obstacle in recovering the debt . For this view of mine, I seek support from the. decision of Hidayatullah and Raghubar Dayal, JJ. in S. C. Prashar v. Vasantsen Dwarkadas . Though the decision in that case was rendered by majority of 3 to 2 and the learned Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings. 11. As against the view taken by Chagla, C. J., there is the view expressed by Desai, J. in the same case. Dealing with this question, Desai, J. observed : A classification is reasonable when it is not an arbitrary selection and rests on differences pertinent to the subject in respect of which the classification is made. The ostensible purpose for and the circumstances in wbich the classification or category is made is always a pertinent inquiry but is not sole test of the matter. Decided cases show that courts have sustained differentia-tiong where the difference might not be apparently divorced from the purpose and circumstances in which any category was sought to be established by legislation. After all, laws are not abstract propositions and each classification has to be considered substantially and qualitatively and not superficially. The Article is a pledge of equality before the law and equal protection of laws, but it does not guarantee to all persons the benefit of the same laws and same remedy or the identical procedure. I shall only add this coming from the faintly academic to the purely practical that the differentiation between asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the first facet Chagla, C. J. had pointed out, rightly in my opinion, that the gereons with regard to whom a finding or direction is given belong really to the same category of persons who are liable to pay tax and have failed to pay it for one reason or another. Admittedly, persons who are liable to pay tax and have not paid it could not be proceeded against after the period of limitation, unless a finding or direction with regard to them was given by some tribunal under various sections mentioned in the proviso; therefore, out of the large category of people who were liable to pay tax but failed to pay it, a certain number is selected for action by the proviso and with regard to that small number the right of limitation given to them is taken away. The real question is, is there any rational basis for distinguishing between persons who are liable to pay tax and have failed to pay it and with regard to whom a finding or direction is given, and persons who are liable to pay tax and have failed to pay it and with regard to whom no finding or direction is given. I am in agreement with the view expressed by the learned Chief Justice that no rational basis has been made out for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an order is made under proviso (ii) to Section 34(3) is well founded and therefore the provision is unconstitutional and hit by Article 14. He did not pronounce as regards the validity of that provision so far as it went against the assessee against whom findings have been made or directions given by any Tribunal. 13a. Sarkar, J. the other member of that Bench did not express any opinion in that decision on the point under consideration. But on the same day, the very Bench delivered the judgment in Commr. of Income Tax B and O v. S. Lakshmir Singh . The very question that was considered in Prashar's case again came up for consideration in Sardar Lakshmir Singh's case. Therein Sarkar J. observed that the second proviso to Section 34 (3) of the Income Tax Act, 1922, in so far as it relates to third parties is violative of Article 14. But in so far as it deals with the assessment of the assessee against whom finding is made or direction given, this is what the learned Judge observed: (at page 78 of ITR (SC)) : (at p. 1398 of AIR): It may be said though I do not pronounce finally on the question now -- that such an assessee may be put in a separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute or whether a particular tax could not have been imposed in a different way or in a way that the court might think more just and equitable; if the legislature has classified persons or properties into different categories which are subjected to different rates of taxation with reference to income or property, such a classification would not be open to the attack of inequality on the ground that the total burden resulting from such a classification is unequal; similarly, different kinds of property may be subjected to different rates of taxation, but so long as there is a rational basis for the classification, made. Article 14 will not be in the way of sucb classification resulting in equal burdens on different classes of properties. 14. Courts have repeatedly laid down that no provision in a Statute should be struck down unless it is clear that the provision in question is bad in law. If two views are possible about the validity of a provision, then reliance should be placed on the presumption that it is valid. As noticed above, several learned judges of the Supreme Court and that of the High Courts have expressed divergent views on the point under consideration. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
