ESVEEAR DISTILLERIES Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THESE three appeals are filed by different appellants, but as they involve a common issue, they are taken up together for disposal. T.A. No. 924/93 and T.A. No. 14/94 are filed against the orders of revision passed by the Deputy Commissioner (CT), Chittoor Division, and T.A. No. 927/93 is filed against the orders of the Deputy Commissioner (CT), Vijayawada. The particulars of the orders are as follows:

(2.) THE point to be considered is whether the disputed turnover in T.A. No. 924/93 relating to second sale of cartons is exigible to tax and secondly, whether the turnovers relating to sale of bottles, cartons and other packing material indicated above are to be taxed at the rate applicable to the contents thereof viz., liquor and beer, under the APGST Act?.

(3.) THIS contention is however not tenable as the concession of taxing containers at the appropriate rate was it self given retrospectively, after the transactions were over and it cannot be said that the aggrieved dealers had at the time of transacting the impugned turnover acted upon the unamended G.O. Ms. No. 376. By the time G.O. Ms. No. 376 was issued on 2.5.1991 with retrospective effect, the taxable event had already taken place and tax collected, without being influenced by either of these G.O. Such being the case, when the Government withdrew the unamended G.O. Ms. No. 376 and made it prospective with effect from 2.5.1991 by virtue of G.O. Ms. No. 1106, dated 7.12.1991, no vested right was being taken away. There is strictly no parallel between the facts of the case in Anand Soap Factory vs. State of Karnataka ( : 42 STC 356) and the cases before us. It is a fallacious claim that the Commercial Tax Officer, shall act upon the law as it existed at the time of assessment and his action has not prejudicial to Revenue. So exercise of revisional power was bad. The assessing authority has to apply law in force at the time of transactions' took place, not the law in force at the time of assessment. This is so because for the assessments pending before him, a particular Commercial Tax Officer may or may not act within the period from 2.5.91 to 7.12.1991. As to when a Commercial Tax Officer may take up the assessment, at any time within the period allowed under the Act depends on his convenience. It cannot be said that in such of those cases, where the Commercial Tax Officer acts in the interregnum between 2.5.1991 to 7.12.1991, the concerned assessees would benefit from the amended G.O. Ms. No. 376 and those dealers whose cases are not taken up in the said period would stand to lose. This would lead to discrimination which cannot be upheld. Once G.O. Ms. No. 376 was amended and made applicable prospectively from 2.5.1991, any assessments which would have been carried out applying the unamended G.O. Ms. No. 376 would become erroneous and prejudicial to the interests of Revenue and hence, such assessments are bound to be revised. Therefore, the impugned revisions now before us are perfectly valid and legal. The A.P. High Court has already upheld the validity of G.O. Ms. No. 1106 modifying the retrospective operation of G.O. Ms. No. 376 in two of its decisions viz., (1) Princes & Co., & Another Vs. Government of Andhra Pradesh & Another (14 APSTJ 147) and Lucky Wines Private Ltd., Ashoknagar, Hyderabad Vs. State of Andhra Pradesh ( : 18 APSTJ 200). Accordingly, we hold that the G.O. Ms. No. 376 has to be applied prospectively with effect from 2.5.1991 only and the appellants herein are not eligible for the benefit of G.O. Ms. No. 376, the period under consideration being prior to 2.5.1991.