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1 - 8 of 8 (0.28 seconds)Section 22 in The Kerala General Sales Tax Act, 1963 [Entire Act]
Premier Enterprises, Secunderabad vs Commercial Tax Officer & Anr. on 2 March, 2000
However, this position canvassed by the petitioners does not apply here because in effect the increase in tax was not retrospective. In this case, as already noticed, the increase in rate of tax though retrospectively brought under the Kerala General Sales Tax (Amendment) Act, 2002, it is only a regularisation of an amendment introduced prospectively under Ordinance No. 37 of 2001 and retained by Ordinance No. 4 of 2002. Even if the impugned Amendment Act was not retrospective, the rate of tax on paper stood increased under entry 106 of the First Schedule to the Kerala General Sales Tax Act from 4 per cent to 8 per cent by virtue of the two Ordinances stated above until the Kerala General Sales Tax (Amendment) Act, 2002 replaced the Ordinances. It is a well-settled position by the decision of the Supreme Court in Premier Enterprises v. Commercial Tax Officer (2001) 121 STC 43 = (2001) 9 SCC 753, that the Legislature has the competence to make retrospective levy of tax, provided the same is not oppressive or unreasonable. The Ordinance amending the statute shall have the same force of an Act of the Legislature by virtue of the declaration contained in Article 213(2) of the Constitution of India. As already stated, the amendment to entry 106 of the First Schedule to the Kerala General Sales Tax Act increasing the rate of tax on paper from 4 per cent to 8 per cent was made by Ordinance No. 37 of 2001. This Ordinance Was published on December 31, 2001 and was prospective, ie., from January 1, 2002. Therefore it is this amendment that is retained by Ordinance No. 4 of 2002 which in turn was substituted by Act of the Legislature later retrospectively from January 1, 2002. Therefore the amendment did not have retrospective effect and it was only a case of omission on the part of the petitioners to collect higher rate of tax, which according to them is on account of their ignorance of the amendment.
Hotel Elite And Ors. vs State Of Kerala And Ors. on 23 October, 1987
4. The petitioners relied on a large number of decisions of the Supreme Court and of this Court in support of their contentions. The decisions relied on are mainly on the question of retrospective amendment. The decision by this Court cited by the petitioners is that of Hotel Elite v. State of Kerala, (1998) 69 STC 119. That was a case where a retrospective amendment introducing turnover tax was not enforced by virtue of the concession made by the Advocate General on behalf of the State before the Court and the Court accepted the same. This position cannot be canvassed as a proposition against validity of retrospective amendment.
Collector Of Central Excise vs New Tobacco Co. Ltd. on 17 December, 1997
By virtue of the operation of the Ordinances the relevant entry in the Kerala General Sales Tax Act stood amended and therefore it cannot be said that the notices issued pursuant to the amendment are by virtue of retrospective amendment by the Amendment Act. Though, the petitioners contend that there is no "publication" of the Ordinances, I do not think, the same is correct because every publication by the Government is through gazette and gazette copies are produced by the petitioners themselves. The petitioners have no case that the Ordinances were not published in the gazette. Of course, publication of the gazette in the usual course is by sending it to Government offices and by making it available to those who subscribe it. The Supreme Court in Collector of Central Excise v. New Tobacco Co., (1998) 109 STC 376; (2001) 9 KTR 201, held that mere printing of gazette is not publication. However, in this case the petitioners have no case that the gazette copy of Ordinance-produced by them was not published by the Government. The gazette notifying Ordinance No. 37 of 2001 was in fact published. The petitioners contend that like them the departmental officers were also unaware of the increase in tax by the Ordinance published in gazette and therefore, they contend that the demand of tax cannot be pressed against them. I do not think, ignorance of the departmental officers or the lack of specific communication at least to the officers who are the enforcing agencies about the increase of rate of tax will offer a defence to the petitioners against the demand of tax. It is not mandatory for the departmental officers to scrutinise every monthly return filed and to demand tax then and there either by making provisional assessments or by making provisional demands. The lapse on the part of the department is of course only a reflection as to how indifferent or inefficient the department is. However, I do not think the petitioners can claim immunity from payment of tax on the laches of the departmental officers. So long as there is time-limit to demand tax under the statute and demand is raised within such time, the petitioners are bound to pay the tax. Probably it offers a good defence against the demand of penalty or penal interest for the period until the officers raise the demand. The validity of Section 2(1) of the Amendment Act which provides for retrospective operation of the Act has to be upheld because the Amendment Act only retained the amendments to the Kerala General Sales Tax Act introduced prospectively by Ordinance No. 37 of 2001. As already stated impugned notices clearly establish that notices were issued under Ordinance No. 37 of 2001 and therefore the challenge against retrospective effect of the Act does not stand. The retrospectivity given to Ordinance No. 4 of 2002 also cannot be invalidated for the reason that Ordinance No. 37 of 2001 ceased to be in force and it is only to revive the provisions of this Ordinance, the later Ordinance was issued.
Kanthi Enterprises & Ors vs State Of Karnataka & Ors on 10 September, 2002
The Supreme Court decision relied on by the Government Pleader in Kanthi Enterprises v. State of Karnataka, (2002) 128 STC 182 (SC) squarely applies to this case. That was a case where the retrospective amendment was upheld by the Supreme Court on the ground that prior to the amendment there was a clarification issued by the Commissioner of Commercial Taxes on the same lines as the amended provisions. But the amendment was made necessary because the clarification was held to be unconstitutional by the declaratory judgment of the High Court. Further the Court held that the appellants could not collect tax on account of erroneous interpretation of the provisions by the High Court is not a ground to relieve them from the burden of tax legally payable by them. The cases at hand are similar because the inability to collect tax is on account of ignorance of law. Moreover, I do not think ignorance of law can invalidate a notice demanding tax and interest based on valid statutory provisions. I do not think the several other decisions cited by the petitioners should be gone into because in no such case the Court had occasion to consider the sufferings of a party on account of want of information of law on the subject. Ignorance of law is not a ground to invalidate an order validly issued. I do not think the original petitions are to be entertained.
Shri Krishna Enterprises And Ors. vs State Of Andhra Pradesh And Ors. on 25 October, 1989
The Supreme Court has in fact made such observations in Shri Krishna Enterprises v. State of Andhra Pradesh, (1990) 76 STC 67, wherein the Supreme Court turned down the review petition by the State to sustain demand of tax based on a retrospective amendment. The Supreme Court has held as follows:
Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986
The Supreme Court in the case of D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378, held that repromulgation of an Ordinance without getting it replaced by an Act of the Legislature is unconstitutional. However, in this particular case, the repromulgated Ordinance was only a stop-gap arrangement to get over the elapse of Ordinance No. 37 of 2001 and the repromulgated Ordinance did not stay on but was replaced by statute with retrospective effect. Therefore, I do not think it possible to go into the constitutionality of Ordinance No. 4 of 2002 which does not survive after the passing of the Sales Tax (Amendment) Act which replaced the Ordinance. Moreover the question raised by the petitioners is the validity of the retrospective amendment to the Kerala General Sales Tax (Amendment) Act.
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