VIGNYAN INDUSTRIES LIMITED Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE common petitioner in these petitions is a registered dealer under the Karnataka Sales Tax Act, 1957 ("the Act" ). The petitioner purchases iron scrap from dealers for the purpose of manufacturing iron and steel castings which are sold by it. For the assessment years 1973 and 1974 ending December 31, 1973 and December 31, 1974 respectively, the petitioner filed its annual returns declaring certain turnover and claiming exemption of sales turnover of the manufactured goods. Accepting the contention of the assessee that the goods sold were manufactured out of tax-suffered iron scrap, the Assistant Commissioner of Commercial Taxes (Assessment), Mysore, exempted the said sales turnover of manufactured goods. Later, the assessing authority, in exercise of his power conferred under section 25a of the Act, issued notice to the petitioner proposing to rectify the alleged mistake apparent on the record on the ground that the deduction allowed on the sale of castings and ingots manufactured out of iron scrap ought not to have been allowed. The petitioner took the contention that the sale of castings and ingots had been duly exempted under the Government order dated May 25, 1976 and the Commissioner's Circular No. 369 dated June 28, 1976. The circular was to the effect that the decision of the Supreme Court in the case of State of Tamil Nadu v. Pyare Lal Malhotra [1976] 37 STC 319, declaring the law to treat each of the sub-items under the Schedule head "iron and steel" goods separately for the purpose of levy of sales tax on the sale thereof has to be enforced prospectively, and the assessments for the prior periods should be made subject to the exemptions granted by the Government under the aforesaid order/circular. However, the assessing authority confirmed the proposal in the notice and made an order reviewing the assessment, thereby including the said exempted turnover to tax. The petitioner having unsuccessfully challenged the said order before the Deputy Commissioner of Commercial Taxes (Appeals), Bangalore, and later before the Karnataka Appellate Tribunal, has now sought for quashing the said orders as being unjust, illegal and without jurisdiction.

(2.) SRI Naganand, learned counsel for the petitioner, submitted that the State Government took a conscious decision to drop all rectification/revision proceedings consequent upon the decision of the Supreme Court in Pyare Lal Malhotra's case [1976] 37 STC 319 and to enforce the decision only with effect from the date of judgment, i. e. , January 19, 1976. That, the power of the State to exempt a class of goods from taxation under the circulars being traceable only to section 8-A of the Act, the assessing authority, who had before him both the circulars on the date of the assessment orders, had taken a valid decision to exempt the turnover in accordance with the legal position prevailing at that time. The same legal position was in existence on October 16, 1980, when the notice under section 25-A was issued. As such, there is no error or mistake apparent from the record which could be rectified. Alternatively, even assuming that two views were possible on the exemption or otherwise of the turnover, one possible view was taken by the assessing authority, in which event invoking the power of rectification is impermissible.

(3.) IT is urged that the two circulars referred to above had not been withdrawn or cancelled by the State Government, and even assuming that there was an implied substitution of the said circulars by law in explanation II to the Fourth Schedule to the Act, the said circulars would cease to exist only on the date of the enactment. This appears to be the view held by this Court also in the case of Shaw Wallace and Co. Ltd. v. State of Karnataka [1993] 91 STC 37; ILR (1992) Kar 1494, where the question referred to the Full Bench was whether a notification issued by the State Government in exercise of the power conferred by section 8-A of the Act is impliedly repealed or rendered ineffective when the Legislature amends the Act and introduces an entry in the Schedule to the Act, which relates to the class of goods to which exemption is given by the notification. It is held that the legislative will being superior to that of the State Government, former would always override the latter. If the Legislature enacts on a particular date that specified goods shall be taxed in a particular manner, it is clear that at least on the said dare, the Legislature had a clear intention to levy the tax on the goods in question at that particular rate. While exercising the power under section 8-A of the Act, the State Government functions as delegate of the State Legislature. Hence, the exercise of the power by the delegate cannot be in conflict with the mandate prescribed by the State Legislature. The factual position in the instant case is that the circulars exempting levy of tax on the goods manufactured out of the iron scrap were issued after the judgment of the Supreme Court in the case of Pyare Lal Malhotra [1976] 37 STC 319 obviously in order to relieve the manufacturers and dealers of the hardship that would be caused to them by unforeseen heavier tax burden in respect of the period prior to the date of the judgment, i. e. , January 19, 1976, in Pyare Lal Malhotra's case [1976] 37 STC 319. The object of introducing the explanation under Act 13 of 1982 was also to grant exemption in respect of the said products prior to 1978. In the instant case, the assessment orders were passed on May 10, 1978 and November 23, 1978, for the years 1973 and 1974 respectively. If the contention urged on behalf of the State is accepted, the original exemption granted under the circulars would amount to an error calling for rectification. In this connection, reliance is placed upon the case of Firm A. T. B. Mehta Majid and Co. v. State of Madras [1963] 14 STC 355 (SC ). In that case, it is held that a rule made by the Governor in exercise of the power conferred on him under section 19 of the Madras General Sales Tax Act having been substituted by a new rule, the old rule ceases to exist and it does not automatically get revived when the new rule is held to be invalid. The question involved in the instant case is entirely different and, as such, the ratio of the said decision has no application to the facts and circumstances of the instant case. In the circumstances, it appears to us that the question whether the said circulars which are undoubtedly traceable to the power of the State under section 8-A should be considered de hors the explanation which came to be introduced subsequently in the year 1982 under Act 13 of 1982.