KHAJA TRADING COMPANY v. ENTRY TAX OFFICER, 27TH CIRCLE, K. G. ROAD, BANGALORE. (AND OTHER CASES)
1998-11-25
V.K.SINGHAL
body1998
DigiLaw.ai
ORDER V. K. SINGHAL, J. - In all these writ petitions the controversy involved is common therefore a common order is passed. Petitioners deal in cotton fabric (PVC cloth). The notification dated November 18, 1992 published in gazette on November 21, 1992 was issued under section 3(1) of the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979 by which Sl. No. 1 was substituted with effect from August 1, 1985. The relevant entry of the said notification is as under : "All varieties of textiles, namely cotton, woollen or artificial silk including rayon or nylon and other man-made or synthetic fabrics, manufactured in mills or powerlooms and hosiery cloth in lengths and including fabrics coated with or impregnated with PVC or cellulose derivatives (whether or not manufactured in mills or powerlooms)." Section 3(1) of the Act, which is the charging section under which the above notification was issued is as under : "3. Levy of tax. - (1) There shall be levied and collected a tax on entry of goods specified in the First Schedule into a local area for consumption, use or sale therein, at such rates not exceeding five per cent. of the value of the goods as may be specified retrospectively or prospectively by the State Government by notification, and different dates and different rates may be specified in respect of different goods or different classes of goods or different local areas." 2. Entry 1 of the Schedule to the Act was substituted by Act No. 14 of 1991 retrospectively as under : "1. All varieties of textiles, namely, cotton, woollen, or artificial silk including rayon or nylon and other man-made or synthetic fabrics, manufactured in mills or powerlooms and hosiery cloth in lengths and including fabrics coated with or impregnated with PVC or cellulose derivatives (whether or not manufactured in mills or powerlooms)." 3. The words "retrospectively or prospectively by the State Government by notification and different dates" was substituted by Act No. 8 of 1993 and was given retrospective effect from September 30, 1992. Act No. 8 of 1993 obtained the assent of the Governor and was published in the Gazette on February 11, 1993. Earlier the Division Bench of this Court in the case of Subramanyam & Co.
Act No. 8 of 1993 obtained the assent of the Governor and was published in the Gazette on February 11, 1993. Earlier the Division Bench of this Court in the case of Subramanyam & Co. v. Commissioner of Commercial Taxes [1988] 71 STC 37 interpreted as item No. 1 of the Schedule and came to the conclusion that the terin "textile" is not defined under the Karnataka Sales Tax Act, 1957 and therefore the definition of tariff item 19 of the Central Excises and Salt Act, 1944 has to be taken into consideration. It was found that PVC leather cloth was made by coating or impregnating fabric with preparations of cellulose derivatives or other plastic materials. It is not normally understood as textile in trade parlance. It was not an item of the Schedule. Therefore, it did not come within the scope of item No. 1 of the Schedule under the Entry Tax Act and no entry tax was made exigible thereon. The relevant entry which was the subject-matter of the dispute before the Division Bench was entry No. 1 of the Schedule which was substituted by Act No. 38 of 1984 with effect from April 1, 1983 was as under : "All varieties of textiles, namely, cotton woollen or artificial silk including nayon or nylon and other man-made or synthetic fabrics), manufactured in mills or powerlooms and hosiery cloth in lengths." 4. In order to overcome the problem arising because of the above judgment, Kamataka Act No. 9 of 1990 was enacted on April 1, 1990 and the entry at serial No. 1 of the Schedule was substituted with retrospective effect as under "All varieties of textiles, namely cotton (including cotton fabrics coated with or impregnated with PVC or cellulose derivatives), woollen or artificial silk (including rayon or nylon and other man-made or synthetic fabrics), manufactured in mills or powerlooms and hosiery cloth in lengths." 5. This amendment was again challenged before the Division Bench in Karnataka Commercial Corporation v. State of Karnataka ILR 1991 Kar 850. This Court came to the conclusion that there is no scope whatever to bring the PVC cloth within the definition of entry 1 unless and until the qualification, manufactured in powerloom is satisfied. Accordingly the PVC cloth was held not liable to entry tax. 6.
This Court came to the conclusion that there is no scope whatever to bring the PVC cloth within the definition of entry 1 unless and until the qualification, manufactured in powerloom is satisfied. Accordingly the PVC cloth was held not liable to entry tax. 6. Legislature stepped in to remove the defects by bringing Kamataka Act No. 14 of 1991 published on March 13, 1991 with retrospective effect as under : "All varieties of textiles, namely, cotton, woollen or artificial silk including rayon or nylon and other man-made or synthetic fabrics, manufactured in mills or powerlooms and hosiery cloth in lengths and including fabrics coated with or impregnated with PVC or cellulose derivatives (whether or not manufactured in mills or powerlooms)." 7. Validity of Act No. 8 of 1993 was challenged before this Court on the ground that the said Act is unenforceable for want of President of India assent as required under article 304(b) of the Constitution of India. This Court in the case of Avinyl Polymers Pvt. Ltd. v. State of Karnataka [1998] 109 STC 26 has upheld the validity and it is stated that the matter is pending before the apex Court and leave has been granted. As stated above the notification dated November 18, 1992 published in Karnataka Gazette on November 21, 1992 was substituted with effect from August 1, 1985. Section 3(1) at that time has not empowered the State Government to issue a notification with retrospective effect. That amendment was made in section 3(1) by Act No. 8 of 1993. Had it been an simple amendment of conferring the power by Legislature on the State Government to issue the notification prospectively or retrospectively, the notification dated November 18, 1992 would have been declared as without jurisdiction. But the amendment by Act No. 8 of 1993 itself came into force from September 30, 1992. Whether this amendment validates the notifications issued after September 30, 1992 is to be examined ? 8. Learned counsel for the petitioner submitted that there is no notification after coming into force of the Act No. 8 of 1993 and that power under section 21 of the Karnataka General Clauses Act cannot be invoked to bring a notification with retrospective effect.
8. Learned counsel for the petitioner submitted that there is no notification after coming into force of the Act No. 8 of 1993 and that power under section 21 of the Karnataka General Clauses Act cannot be invoked to bring a notification with retrospective effect. It is submitted that after coming into force of Act No. 8 of 1993 no notification could have been issued afresh with retrospective effect but if any notification has been issued before coming into force of the Act No. 8 of 1993, it is stillborn, hence void. 9. So far as the contention that notification dated November 18, 1992 could not have been issued with retrospective effect with the aid of section 21 of the Karnataka General Clauses Act, I am in agreement with the argument of the learned counsel for the petitioner. 10. Act No. 14 of 1994 has validated the assessment even before commencement of Act No. 8 of 1993 and from the date Act No. 8 of 1993 has come into force it is to be examined whether the notification issued on November 18, 1992 could be stated to be in excess of power of delegated authority. 11. Kamataka Ordinance No. 13 of 1992 was promulgated on September 30, 1992 by which it was proposed that the words "retrospectively or prospectively by the State Government by notification and different dates" are substituted for the words "by the State Government by notification from time to time". This Ordinance was published on September 30, 1992. It appears that the Ordinance lapsed and therefore Act No. 8 of 1993 was enacted. This Act itself comes into force on Sptember 30, 1992, the date on which Ordinance No. 13 of 1992 was issued. The State Government as a delegated authority issued the notification on November 18, 1992 when the Ordinance No. 13 of 1992 was in force. If the ordinance lapsed, the notification issued thereunder normally would lapse. But in the present matter, section 1(2) of the Act No. 8 of 1993 provides that Act No. 8 of 1993 shall be deemed to come into force on September 30,, 1992 to cover those actions which have been taken under Ordinance No. 13 of 1992. Act No. 14 of 1994 has validated the assessments which were framed before coming into force of the Act No. 8 of 1993.
Act No. 14 of 1994 has validated the assessments which were framed before coming into force of the Act No. 8 of 1993. A contention was raised by the learned counsel for the petitioner that there is no validating clause in Act No. 8 of 1993 in the notifications which have been issued between September 30, 1992 and February 11, 1993 the date on which Act No. 8 of 1993 was enacted. The very object of bringing Act No. 8 of 1993 retrospectively from September 30, 1992 was to validate the notification which have been issued between September 30, 1992 and February 11, 1993. Otherwise the Legislature could have simply made Act No. 8 of 1993 prospective providing the amendment of section 3 authorising State Government to issue the notification retrospectively or prospectively. In that case, the State Government could have issued the notification retrospectively or prospectively after February 11, 1993 and no objection could have been taken for such a notification. It is settled by series of decisions of the apex Court that the Parliament has the power to make the law prospective or retrospective. In case of retrospective amendment it has, to be seen whether it is unreasonable or violative, of any provisions of the Constitution, etc. Act No. 8 of 1993 while specifically providing that it shall come into force from September 30, 1992 has taken note of the ordinance No. 13 of 1992 and since the notification was issued by the delegated authority on the basis of the proposed amendment in section 3, the effect would be that Act No. 8 of 1993 has validated the action of the delegatory authority in the notification which have been issued between September 30, 1992 and February 11, 1993. In view of this position, writ petitions having no force are accordingly dismissed. Writ petitions dismissed.