Madhya Pradesh High Court
Hotel Neelkamal, Through Its Prop. Shri ... vs Assistant Commercial Tax Officer, ... on 4 April, 2006
Equivalent citations: (2007)5VST260(MP)
ORDER K.K. Lahoti, J.
1. An important question has been raised by the petitioner in respect of applicability of provisions of M.P. Commercial Tax Act, 1994 (for short 'M.P.C.T. Act') between 1.4.1995 and 24.12.2001 for enforcing the provisions of M.P. Hotel Tatha Vas Grihon Me Vilas Vastuon Par Kar Adhiniyam 1988 (for short 'Luxury Tax Act').
2. The petitioner has sought following reliefs in this petition:
It is therefore most humbly & respectfully prayed that this Hon'ble Court be kindly pleased:
To quash the Luxury tax asstt. order dated 21.6,2002 Annexure P-5.
To hold that the Commercial Tax Act, 1994 was not applicable in Luxury Tax Act, 1988 during the impugned period i.e. 1-11-1995 to 26-3-1999.
To hold that Asstt. Commercial Tax Officer committed mistake in not issuing demand notice in form VI as prescribed under the Luxury Tax Act.
To quash the notice for recovery from third parties issued in form 45 of the Commercial Tax Act Annexure P-7.
To hold that the petitioner was not entitled to file appeal/revision because neither MPGST Act is applicable nor the MPCT Act was applicable during the impugned period.
To issue any other writ or direction or order which thus Hon'ble Court deems fit in the circumstances of the case to give relief to the petitioner.
3. To consider the grievance raised in this petition, it would be necessary to state some facts of the case. The petitioner was running a small hotel with 7 rooms and dormitory at Burhanpur. The petitioner's liability to pay Luxury Tax was fixed w.e.f. 1.11.1995 by the Commercial Tax officer circle Burhanpur by order dated 2.3.2000 Annexure P-3. The case of petitioner is that he closed his business w.e.f. 1.4.1999 and the authority has wrongly assessed Luxury Tax and penalty on the petitioner. The petitioner is not liable to pay Luxury Tax and penalty. The Luxury Tax was brought on statute book w.e.f 16.8.1988 and certain provisions of M.P.General Sales Tax Act. 1958 (for short 'MPGST Act") were incorporated in it. Section 6 of the Luxury Tax which is relevant in the present case is quoted hereinunder:
6. Certain provisions of Sales Tax act to apply - Subject to the provisions of this act and the rules made thereunder Sections 3, 17, 18, 19, 19A, 20, 21, 22, 22A, 23, 24, 24A, 26, 27, 29, 30, 31, 33, 33B, 33C, 34, 35, 36, 37, 38, 39, 40, 41, 42, 42A, 43, 44, 45, 45A, 45B, 46, 47, 47A, 48 and 51 of the Sales Tax X Act and the Rules orders and notifications issued thereunder shall mutatis mutandis apply to a hotelier respect of tax levied and payable under this act as if those sections were mutatis mutandis incorporated in this Act and the rules orders and notifications issued under those sections were mutatis mutandis issued under the relevant sections as so as so incorporate in this Act.
The application of the above sections of M.P.G.S.T. Act 1958 in Luxury Tax Act clearly indicates that Luxury Tax Act cannot operate independently but is dependent fully on Madhya Pradesh General Sales Tax Act, 1958 for the purpose of Returns Assessment, recovery, Appeals revision and other proceedings.
The M.P.G.S.T. Act was repealed by M.P. Vanijya Kar Adhiniyam, 1994 (M.P. Commercial Tax Act, 1994) hereinafter referred to as 'MPCT Act' for short) w.e.f. 1.4.1995.
Thereafter the State amended M.P. Luxury Tax Act by Act No. 34/2001 by which Section 6 of the Act was amended as under:
6. Subject to the provisions of this Act and the rules made thereunder Sections 3, 26, 27, 23, 29, 30, 31, 32, 33, 38, 39, 40, 42, 43, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 60, 61, 62, 63, 64, 65, 66, 67, 69, 70, 71, 72, 73, 74. 75, 76, 77 and 80 of the Vanijyik Kar Adhiniyam and the rules, orders and notifications issued thereunder shall mutates mutandis apply to a hotelier in respect of tax, interest or penalty levied and payable under this Act as if those sections were mutatis-mutandis incorporated in this Act and the rules, orders and notifications issued under those Sections were mutatis-mutandis issued under the relevant Sections as so incorporated in this Act.
This amendment in Luxury Tax Act was made effective from 24.12.2001 by notification No. A-3-67-2001-ST-(v)(105) dated 24.12.2001.
4. The contention of petitioner are that:
(i) That between 1.4.1995 and 23.11.2001 provisions of MPGST Act were not applicable as the aforesaid Act was repealed w.e.f. 1.4.1995. Section 6 of Luxury Tax has been amended by Act No. 34/2001 w.e.f. 24.12.2001 and certain provisions of M.P.C.T. Act has been made applicable therein. Between the period 1.4.1995 and 23.12.2001 the provisions of both the Acts were not in force so the petitioner cannot be assessed by the respondents under the Luxury Tax Act. The contention is supported by the petitioner on the ground that certain provisions of M.P.G.S.T. were applicable to M.P. Staniya Kshetra Me Mal Ke Parvesh Kar Adhiniyam 1976 (for short 'Entry Tax') and after repeal of M.P.G.S.T. Act the state immediately brought a bill Annexure P-2 and all the provisions of Entry Tax Act were amended and the provisions of M.P.C.T. Act were made applicable.
(ii) The State knowing lit well that certain provisions of M.P.G.S.T were made applicable under the Luxury Tax Act, but even after repeal of M.P.G.S.T. Act those provisions were not substituted by the relevant provisions of M.P.C.T. Act. This shows that intentionally the provisions of M.P.C.T. Act were not made applicable till 24.12.2001.
(iii) As the petitioner has been assessed and penalty has been imposed for the period prior to 2.12.2001 with the aid of M.P.C.T. Act, all the assessment orders and order imposing penalty may be quashed. In the alternative it is submitted chat under the M.P.G.S.T. Act penalty was 1.5 times of the tax while under M.P.C.T. Act, Section 27(6) provides penalty from 2 to 5 times of the tax. Under the Luxury Tax Act penalty under Section 8(3) is Rs. 500/- to Rs. 5,000/-, but the Commercial Tax Officer has imposed penalty under the provisions of M.P.C.T. Act ignoring the provisions of M.P.G.S.T. Act. Firstly both the provisions M.P.G.S.T. or M.P.C.T. Act are not applicable so no penalty was imposable on the petitioner. Even if it is assumed that the provisions of M.P.C.T., has been made applicable from 24.12.2001, the penalty prior to 24.12.2001 was not imposable. In the alternative it is submitted that if the provisions of M.P.G.S.T. Act continue in Section 6 of Luxury Tax Act, the penalty may be imposed under Section 18(6) of M.P.G.S.T. Act and not under M.P.C.T. Act.
5. Learned Counsel for State opposed the contention and submitted that it Was not necessary on the part of State to amend Section 6 of Luxury Tax Act. When the State repealed M.P.G.S.T. Act and re-enacted M.P. Commercial Tax Act, the provisions of newly enacted or changed Act came-into force by virtue of Section 13 of the M.P. Genera Clauses Act. Reliance is placed to the Apex Court judgment in State v. Ratan Lal Arora and submitted that this petition may be dismissed.
6. To appreciate rival contention of the parties it will be necessary to look into the relevant provisions. Section 2(j) of Luxury Tax Act defines Sales Tax Act which reads thus:
2(j) "Sales Tax Act" means the Madhya Pradesh General Sales Tax, 1958 (No. 2 of 1959) Section 6 provides application of certain provisions of Sales Tax Act, which reads thus:
6. Certain provisions of Sales Tax Act, to apply - Subject to the provisions of this Act and the rules made thereunder Sections 3, 17, 18, 19, 19-A, 20, 21, 22, 22-A, 23, 24, 24-A, 26, 27, 29, 30, 31, 33, 33-B, 33-C, 34, 35, 36, 37, 38, 39, 39A, 40, 41, 42, 42-A. 43, 44, 45, 45-A, 45-B, 46, 47, 47-A, 48 and 51 of the Sales Tax Act and the rules, orders and notifications issued thereunder shall mutatis mutandis apply to a hotelier in respect of tax levied and payable under this Act as if those sections were mutatis mutandis incorporated in this Act and the rules, orders and notifications issued under those sections were mutatis mutandis issued under the relevant section is as so incorporate in this Act.
Section 8(3) of the Act provides penalty of not exceeding five thousand rupees, subject to minimum of five hundred rupees, which reads thus:
8(3) Where a hotelier required to obtain a registration certificate under Sub-section (1) fails to apply for the same within the time specified in Sub-section (2), the appropriate Sales Tax Officer may, after giving him a reasonable opportunity of being heard, direct him to pay by way of penalty a sum not exceeding five thousand rupees, subject to a minimum of five hundred rupees.
M.P.G.S.T. Act was repealed by M.P. Vanijya Kar Adhiniyam, 1994 w.e.f. 1.4.1995. Section 81 is in respect of repeal and savings which reads thus:
81. Repeal and saving - The Madhya Pradesh General Sales Tax Act, 1958 (No. 2 of 1959) shall) stand repealed on the date of coming into force of this Act: Provided that-
(i) such repeal shall not-
(a) affect the previous operation of the Act so repealed) or anything duly done or suffered, thereunder; or
(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act; or
(c) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the repealed Act, or
(d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation liability; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed and the said act had not been repealed.
(ii) Unless it is otherwise expressly provided anything done or any action taken (including any appointment, notification, notice, order, rule, form, Regulation, certificate or license) in the exercise of any power conferred by or under the said Act shall, in so far as it is not inconsistent with the provision of this Act continue in force and be deem to have been done or taken in the exercise of the powers conferred by or under the provisions of this Act as if this Act were in force on a date on which such thing was done or action was action unless and until it is superseded by or under this Act an all arrears of tax and other amount due to the commencement of this Act may be recovered as if they had accrued under this Act.
(iii) Any assessment, appeal revision or other proceedings arising under the repealed Act and the rules made thereunder and or pending before an officer or authority duly empowered to make assessment or hear and decide such appeal, revision or other proceeding immediately preceding the commencement of this act shall, on the date of such commencement stand transferred to the officer or authority competent to make assessment or to hear and decide appeal or revision or to other proceedings under this Act and thereupon Such assessment, shall be made or such appeal or revision or other proceedings shall be heard and decided by such officer or authority in accordance with the provisions of the repealed Act or the rules made thereunder as if they were the officer or authority duly empowered for the purpose under the repealed Act.
(iv) Notwithstanding anything contained in Clause (i), any appeal, revision, reference or other proceedings arising under the repealed Act but preferred or initiated after the commencement of this Act, shall be heard and decided by the authority competent to entertain any appeal, revision, reference or any other proceedings in accordance with the provision of this Act.
By Section 81 though the M.P.G.S.T. Act was repealed, but no provision was made in respect of applicability of repealed Act in any other enactment in which the provisions of M.P.G.S.T. Act were made applicable. A bill was introduced by the State No. 30/2001 introducing an amendment in Luxury Tax Act. The statement of objects and reasons of aforesaid bill reads thus:
Under Sub-section (3) of Section 4 of the Madhya Pradesh Hotel Tatha Vas Grihon Me Vilas Vastuon Par Kar Adhiniyam, 1988 (No. 13 of 1988), a hotelier has to pay tax on the basis of fixed rates irrespective of the actual rent received. Now this provision is proposed to be modified so that a Hotelier will pay tax on the basis of actual receipts of the Luxury Provided.
2. It is also proposed that the reference of the madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (No. 5 of 1995) and certain provisions thereof be incorporated inplace of the reference of Madhya Pradesh General Sales Tax Act, 1958 (No. 2 of 1959) and provisions thereof.
3. Hence this bill.
Thereafter vide Act No. 34/2001 the State amended Luxury Tax Act as under:
An Act further to amend the Madhya Pradesh Hotel Tatha Vas Grihon Me Vilas Vastuon Par Kar Adhiniyam, 1988.
Be it enacted in the M.P. Legislature in the Fifty-second year of the Republic of India as follows:
Short title and commencement l.(1) This Act may be called Madhya Pradesh Hotel Tatha Vas Grihon Me Vilas Vastuon Par Kar (Sansodhan) Adhiniyam, 2001, (2) It shall come into force on such date as the State Government, may by notification in the official gazette appoint.
2(j) Vanijyik Kar Adhiniyam means the Madhya pradesh Vanijyik Kar Adhiniyam, 1994 (No. 5 of 1995) The Act No. 34/2001 also provides under Section 3 that throughout the Principal Act for the words "Sales-tax Act" and "Sales Tax Officer" wherever they occur, the words 'Vanijyik Kar Adhiniyam" and "Commercial Tax Officer" shall respectively be substituted. Similar amendment has been made under Section 4 of Luxury Tax Act. The important amendment is under Section 6 of the Luxury Tax Act, which reads thus:
6. Certain provisions of Vanijyik Kar Adhiniyam to apply- Subject to the provisions of this act and the rules made thereunder Sections 3, 26, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 42, 43, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 60, 61, 62, 63, 64, 65, 66, 67, 69, 70, 71, 72, 73, 74, 75, 76, 77 & 80 of the "Vanijyik Kar Adhiniyam" and the rules, orders and notifications issued thereunder shall mutatis mutandis apply to a hotelier in respect of tax levied and payable under this act as if those sections were mutatis mutandis incorporated in this act and the rules orders and notifications issued under those sections were mutatis mutandis issued under the relevant sections as so incorporated in this act.
This act has been made effective from 24.12.2001 by a notification issued by the State Government.
7. In this case it is not in dispute that till the enactment of act No. 34/2001 making amendment in Luxury Tax the provisions of M.P.G.S.T. Act continued as they were in the statute book since from the beginning. After the enactment of M.P.Commercial Tax Act, the State also amended the Entry Tax Act. The statement of object and reasons in the aforesaid bill reads as under:
Statement of object and reasons While presenting the Budget for Financial Year 94-95 the Hon'ble Finance Minister declared in his budget speech that State Government has taken a decision that MPGST Act, 1958 shall be repealed and in its place M.P. Commercial-tax Act, 1994 shall be brought into force, consequent to this declaration that M.P. Commercial Tax Bill, 1994 was introduced in the Vidhan Sabha and it has been passed by Vidhan Sabha.
The authorities for the time being empowered to assess, re assess, collect and enforce the payment of tax under the MPGST Act, 1958, have been empowered to assess, reassess, collect and enforce the payment of tax under the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam also and reference with regard to the authorities under the MPGST Act and sections under the said Act has been made in the provisions of M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par kar Adhiniyam, 1976.
Therefore, with the enactment of M.P.Commercial Tax Act, 1994 and repeal of MPGST Act, and to implement the taxation proposal continued in Part II of the speech made by the Minister of Finance while presenting the Budget for 95-96 into the Vidhan Sabha as 23-2-95, necessary amendments in the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam have become essential.
The aforesaid Entry Tax Act was subsequently amended by Act No. 11/1995 published in the M.P. Extraordinary Gazette, 1995. The petitioner on the basis of aforesaid amendment in the Entry Tax Act has argued that the State Government ought to have amended the Luxury Tax Act by amending aforesaid sections and substituting the provisions of Commercial Tax Act, but in the absence of this, when the M.P.G.S.T. Act was repealed and the provisions of M.P. Commercial Tax Act were not made applicable and during the aforesaid period no Act was applicable so only the provisions of Luxury Tax Act excluding the provisions of M.P.G.S.T. Act may be made applicable in the case of petitioner. While the contention of respondent is that under Section 13 of M.P. General Clauses Act, as the M.P.G.S.T. Act was re-enacted by M.P. Commercial Tax Act, it was not necessary for the State to specifically amend the provisions of Luxury Tax Act and by virtue of Section 13 of the M.P.G.S.T. Act the provisions of re-enacted Commercial Tax Act shall be applicable. For ready reference Section 13 of M.P. General Clauses Act is quoted, which reads thus:
13. Construction of references to repealed enactment - Where any Madhya Pradesh Act repeals and re-enacts, with or without modification, any provision of a former enactment then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
The aforesaid provision specifically provides that where there is reference in any other enactment to the provisions of so repealed act, the provisions of re-enacted act shall be constituted unless a different intention appears.
8. In this case, under the Luxury Tax Act there is specific Section 6 which made applicable certain provisions of M.P.G.S.T. Act and not the entire M.P.G.S.T. Act. The matter has to be considered in this perspective that when only certain provisions of another enactment has been made applicable, after repeal of that Act and re-enactment of another Act, whether the provisions of newly enacted Act may be made applicable or not. In this regard it will be profitable to refer certain Apex Court judgment in this regard. In Gauri Shankar Gaur and Ors. v. State of U.P. and Ors. , the Apex Court held thus:
It would thus be clear that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of the legislature enacting the later Act. It is not by reference. Logically when provisions in the former Act were repealed or amended, they do not, unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act is totally unaffected by any amendment or repeal it would be subject to the exceptions enumerated hereinbefore. The statute being distinct and different each is to be judged with reference to its own source that emerges from its scheme, language employed and purpose it seeks to achieve.
If a later Act merely makes a reference to the earlier Act or existing law, it is only by way of reference and all amendments, repeals, new law subsequently made will have effect unless its operation is saved by Section 8(1) of the General Clauses Act or void under Article 254 of the Constitution.
In State of Maharashtra and Anr. v. Sant Joginder Singh Kishan Singh and Ors. the Apex Court held thus:
It is next contended by Dr. N.M. Ghatate that in appeal arising from S.L.P. No. 5251/90 since the award has not been made within two years from the date of the declaration under Sub-section (2) of Section 126, by operation of Section 11A of the Central Act, the notification published under Section 125 shall be deemed to have been lapsed and, therefore, the authorities are devoid of jurisdiction to proceed further. We find no force in the contention too. It is seen that the State Legislature amended the Act by the Amendment Act and introduced 3 years' limitation for publication of the declaration under Sub-section (2) of Section 126. In Section 128, it has expressly engrafted the provisions of Sections 16, 17 and 24 of the Central Act as its part. In other words, wherever the Legislature intended to apply the specific procedure or the fetters in exercising the power as visualised by the Central Act, it did so specifically. After the Central Act 68 of 1984 has come into force, no attempt was taken by the Stale Legislature to amend the Act introducing or incorporating Section 11A of the Central Act as part of the Act. Since the legislature had incorporated specific provisions of the Central Act, the necessary conclusion is that the Legislature did not intend to apply the unspecified provisions of the Central Act to the exercise of power under the Act. In this behalf it is to be remembered that there is a distinction between incorporation and adoption by reference. if the Legislature would have merely adopted the Central Act, subsequent amendments to that Act made under Act 68 of 1984 would have become applicable per force.
The Apex Court in aforesaid both the cases held that in case where enactment itself has been made applicable, after the re-enactment the provisions of re-enacted act may be applicable, but where the specific provision of the Act are made applicable, until and unless the legislation makes applicable certain provisions of the re-enacted act, the re-enacted provisions cannot be made applicable after re-enactment of law.
9. In the present case, from, the perusal of Section 6 of Luxury Tax Act before its amendment in the year 2001 it is apparent that only certain sections of M.P.G.S.T. Act were made applicable and not all the provisions of M.P.G.S.T. Act were made applicable. After re-enactment the provisions are changed. M.P. Commercial Tax Act may be made applicable only after the legislation specifically makes certain provisions of the Commercial Tax Act applicable under the Luxury Tax Act. Section 13 of the M.P. General Clauses Act specifically provides that where any M.P. Act repeals and re-enacts, with or without modification any provision of a former enactment, then references in any other enactment or in any Instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. But, in this case what is the intention of legislature may be seen. The legislation is empowered to re-enact any law by giving it retrospective effect. The legislature was well aware that under the Luxury Tax Act certain provisions of M.P.G.S.T. Act were made applicable. Knowing it well though the Luxury Tax Act was amended by Act. No. 34/2001, the legislation in its wisdom has made the provision in force from such date as the State Government may by notification in the official gazette appoint. The legislation has not given effect the provision of Act No. 34/2001 from 1.4.1995 on which date M.P. Commercial Tax Act came into force. The intention of lesgislation is very clear and the State Government when appointed 24th Day of December, 2001 as the date on which the provisions of amended Act No. 34/2001 came into force the entire intention is apparent. The State Government and legislature thought it proper to give effect to the amending Act from 24.12.2001 and not from 1.4.1995. This means that the aforesaid provisions are prospective in nature and no effect has been given retrospectively. When the intention is clear the respondents contention by the aid of Section 13 of the M.P. General Clauses Act has no force.
10. Now the another aspect may be seen. The legislation was well aware in respect of reference of M.P.General Sales Tax Act in other enactment. When M.P.G.S.T. Act was repealed the legislature immediately amended the Entry Tax Act. The statement of object and reasons as stated hereinabove specifically states that 'w.e.f. the enactment of M.P. Commercial tax Act and repeal of M.P.General Sales Tax Act and to implement the provisions of M.P. Commercial Tax Act, necessary entry in the Entry Tax has become essential and in the Entry Tax where certain provisions of M.P.G.S.T. Act were referred the legislation with the aforesaid object amended the Entry Tax Act and provisions of M.P. Commercial Tax Act were made applicable. In this case the aforesaid provisions were made applicable w.e.f. 24.12.2001.
11. Though the learned Counsel for petitioner has referred to Ratan Lal Arora (supra) but the facts of the aforesaid case are different. The Apex Court considering the question held thus:
The object of the said provision, obvious and patently made known is that where any Act or Regulation is repealed and re-enacted, references in any other enactment to provisions of the repealed former enactment must be read and construed as references to the re-enacted new provisions, unless a different intention appears. In similar situations this Court had placed reliance upon Sections of the General Clauses Act to tide over the situation. In New Central Jute Mills Co. Ltd. v. The Asstt. Collector of Central Excise, Allahabad and Ors. , this Court held it to be possible to read the provisions of the Customs Act, 1962 in the place of Sea Customs Act, 1878 found mentioned in Section 12 of the Central Excise and Salt Act, 1944. In State of Bihar v. S.K. Roy , this Court held that by virtue of Section 8 of the General Clauses Act, references to the definition of the word 'employer' in Clause (e) of Section 2 of the Indian Mines Act, 1923 made in Coal Mines Provident Fund and Bonus Schemes Act, 1948 should be construed as references to the definition of 'owner' in Clause (1) of Section 2 of the Mines Act, 1952, which repealed and re-enacted 1923 Act. Consequently, the references to Section 562 of Old Code in Section 19 of the Probation Act and to Section 5(2) of the Old Act in Section 18 of the Probation Act, respectively have to be inevitably read as references to their corresponding provisions in the newly enacted Code and the Act. Consequently, for the conviction under Section 13(2) of the Act the principles enunciated under the Probation Act cannot be extended at all in view of the mandate contained in Section 18 of the said Act. So far as Section 360 of the Code is concerned, on and from the date of extension and enforcement of the provisions of the Probation Act to Delhi powers under Section 562 of the Old Code and after its repeal and replacement powers under Section 360 of the Code, cannot be invoked or applied at all, as has been done in the case on hand. The view taken to the contra is not. legally sustainable and cannot have our approval.
The Apex Court has held that when no corresponding change was made in another enactment after coming into force of new Act, the benefit of provisions of new Act cannot be extended. The respondent does not get the benefit of law laid down by the Apex Court in Ratan Lal Arora (supra).
12. In this regard, it would be appropriate to refer the Apex Court judgment in Bhajya v. Smt. Gopikabai and Anr. in which the Apex Court held thus:
Broadly speaking, legislation by referential incorporation falls In two categories First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus:
A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted.
(Vide, Sutherland's Statutory Construction, Third, Edition, Article 5208, p.5208). Corpus Juris Secundum also enunciates the same principle in these terms:
...Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof,...the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute.
The Apex Court has specifically held that where a statute by specific reference incorporates the provisions of another statute as of the time of adoption, the subsequent amendment made in the referred statute cannot automatically be read into the adopting statute, but where a statute incorporate by general reference, the law concerning a particular subject as a genus, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference.
13. In this case the provisions of M.P.G.S.T. Act were not made applicable by general reference, but by specific reference certain provisions of M.P.G.S.T. Act were made applicable. When only certain provisions were made applicable, by re-enactment provisions of re-enacted Act shall not be made applicable even by the aid of Section 13 of the M.P. General Clauses Act.
14. Now another question arises that between 1.4.1995 and 23.12.2001 which provisions will be made applicable. In this regard it will be appropriate to refer Section 11 of the General Clauses Act which reads thus.:
11. Repeal of enactment making textual amendment in any Act - Where any Madhya Pradesh Act repeals any enactment by which the text of any such previous enactment was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.
The aforesaid provision specifically provides that when any M.P. Act repeals any enactment by which the text of any previous enactment was amended by the express omission, insertion or substitution of any matter, unless a different intention appears, the repeal shall not affect the continuance of any such insertion made. Section 6 of Luxury Tax Act provides that certain provisions of M.P.G.S.T. to apply in the Luxury Tax Act. The aforesaid provision relates to procedure of filing of return, etc. When the legislature has not intended to repeal the aforesaid provision from the Luxury Tax Act and continue it upto 23.12.2001, by implication the aforesaid provision shall continue. This factual position is clear from the statement of object and reasons of amendment in Luxury Tax Act 2001, which specifically states that reference of M.P. Vanijya Kar Adhiniyam, 1994 and certain provisions thereof be incorporated in place of reference in M.P. General Sales Tax Act and provisions thereof. This means that the entire intention of legislature was for continuation of the provisions of M.P.G.S.T. Act till 23.12.2001 and after 24.12.2001 the provisions of M.P. Commercial Tax Act were made applicable. This was the intention of legislature and accordingly the amending act was brought and made applicable from 24.12.2001. The contention of petitioner that during the aforesaid period none of the provisions were applicable has no force. A harmonious construction has to be given to the provisions. When the legislature has intended to given effect to the provisions of M.P. Commercial, Tax Act, to Luxury Tax Act w.e.f. 24.12.2001 and this position has not been disputed then the simple intention of legislature may be seen from the amending act by which the provisions of M.P. General Sales Tax Act, 1958 were substituted with the provision; of M.P. Commercial Tax Act. The intention of legislature is apparent and there is no scope to interpret it otherwise. The intention of legislature was to continue the provisions of M.P.G.S.T. Act till 23.12.2001 in Luxury Tax Act.
15. In view of aforesaid discussion, it is held that under the M.P. Luxury Tax Act, the provision of M.P.G.S.T. Act, 1958 shall continue upto 23.12.2001 and from 24.12.2001 the provisions of M.P. Commercial Tax Act, 1994 shall be applicable. Accordingly the matter of petitioner be dealt with by the authorities.
16. In the result this petition is allowed. The impugned orders by which the authorities have assessed the petitioner on the assumption that prior to 23.12.2001, the provisions of M.P. Commercial Tax Act, 1994 shall be applicable in the Luxury Tax Act is not sustainable and accordingly the impugned orders are quashed. The matter is remitted back to the concerned Commercial Tax Officer to decide the matter afresh, in accordance with the directions issued by this Court hereinabove. No order as to costs.