BUDHAN KHAN Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India for the issue of a writ of mandamus directing the respondents from proceeding against the petitioner under the provisions of the Hyderabad Sales of Motor Spirit Taxation Regulation, No. XXIV of 1358 Fasli, in pursuance of the notices dated 13th November, 1958, issued by the 3rd and 4th respondents, the Commercial Tax Officer of the First Circle and of the Third Circle, Hyderabad, respectively. The petitioner is the proprietor of "City Petrol Service" and "Dominion Petrol Service" both of which are located in Hyderabad. He stated in his affidavit that he was paying the taxes due under the Hyderabad Sales of Motor Spirit Taxation Regulation. The Regulation was repealed by section 13 of the Madras Sales of Motor Spirit Taxation (Andhra Pradesh Extension and Amendment) Act, 1958 (Act V of 1958). Act V of 1958 has extended to the Telangana area the provisions of the Madras Act VI of 1939. The present petitioner filed W.P. No. 215 of 1957 for the issue of a writ of mandamus directing the State Government and other appropriate authorities from giving effect to the provisions of Act V of 1958. Various contentions were raised in that petition, assailing the constitutionality and validity of that Act. By a judgment dated 5th November, 1958, my Lord the Chief Justice and Srinivasachari, J., dismissed with costs the W.P. No. 215 of 1957 and other similar petition. (Since reported as Mohammad Budhan Khan v. Stae of Andhra Pradesh and Others [1959] (10 S.T.C. 263)) Thereupon, the Commercial Tax Officer, First Circle, and the Commercial Tax Officer, Third Circle of Hyderabad, issued to the petitioner two notices with respect to two petrol selling shops owned by him, viz., "City Petrol Service" and the "Dominion Petrol Service". In the notice given by the 3rd respondent the petitioner was told to file returns and pay the tax due under the Hyderabad Sales of Motor Spirit Taxation Regulation on or before 13th November, 1958, for the period commencing from April, 1957, to March, 1958, failing which assessment would be completed to the best judgment of the officer in conformity with section 8(1) of the Regulation. In the notice given by the 4th respondent, the petitioner was informed that he had failed to submit the return showing the sale of petrol and motor spirit, and that a return should be submitted within three days from the date of the receipt of the notice and a treasury receipt for the amount of tax due should also be sent along with the return and that in default the 4th respondent would levy an assessment to the best of his judgment under section 8(1) of the Regulation. It is the legality of these two notices that is challenged in the present petition and their further implementation is sought to be interdicted by the issue of a writ of mandamus.

(2.) ON behalf of the petitioner two principal contention were advanced :-

(3.) THE argument that was pressed upon me is that what is saved by the repeal enacted under sub-section (1) of section 13 is an obligation or liability already incurred under Regulation XXIV of 1358 F. A mere liability to taxation without the actual tax being assessed and levied is something in the nature of an incohate right which cannot fall within the meaning of the expression "liability already incurred". In support of that contention, the learned counsel placed strong reliance upon certain decisions, and in particular, on the decision of the Orissa High Court in Chakoo Bhai Ghelabhai v. State of Orissa and Others ([1956] 7 S.T.C. 36). In constructing paragraph (20) of the Adaptation of Laws Order of 1950 issued by the President of India and its bearing on the liability of the petitioner in that case, the learned Judges of the Orissa High Court observed that paragraph (20) of the Adaptation of Laws Order must exclude the application of section 6 of the General Clauses Act, and in that view it was held :-