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Judgment
D. Biswas, J.—In this petition, the circular/letter dated August 16, 1993 issued by the Commissioner of Taxes, Assam, has been challenged as ultra vires of the provisions of the Assam General Sales Tax Act, 1993 (Act 12 of 1993) with prayer for consequential relief including issue of a writ of mandamus prohibiting the respondents from collecting sales tax on the second/last sale of component parts of motor vehicles, etc., in the State of Assam which were purchased prior to July 1, 1993, i.e., before the Assam General Sales Tax Act, 1993 came into force.
The petitioner-Association, registered under the Societies Registration Act, 1860, has in its roll 275 members primarily engaged in motor trade and ancillary industries at Gauhati in the State of Assam. The Association is aggrieved by the aforesaid impugned circular whereby the registered dealers have been asked to pay sales tax on sale of goods to unregistered dealers or consumers. The circular reads as follows :
"Dear Sir,
With reference to the above, I am to say that the Assam General Sales Tax Act has become an Act on May 14, 1993 and the provisions of the Act have come into force w.e.f. July 1, 1993.
In case of the items covered by Schedule IV of the Act, if a registered dealer effects a sale to an unregistered dealer or a consumer out of goods purchased on payment of tax inside Assam from an importer or a manufacturer, no matter whether purchased prior or after July 1, 1993, he shall have to pay tax at the rate specified under column (c) of the aforesaid Schedule w.e.f. July 1, 1993 and alternatively if the registered dealer sells such goods purchased from an importer or manufacturer in Assam to another dealer registered under the Assam General Sales Tax Act, 1993 he need not pay any tax but shall have to furnish to the assessing officer the relevant purchase voucher as well as a declaration in form ''A'' from the purchasing dealer in respect of such sale.
I hope the matter has been clarified."
Dr. A.K. Saraf, learned counsel appearing for the petitioner-Association, submitted that the Commissioner of Taxes acted beyond his jurisdiction in issuing the aforesaid circular which is ex facie contrary to the provisions of the Act. According to Dr. Saraf, prior to the enactment of the Assam General Sales Tax Act, 1993, the component parts of the motor vehicles and other articles necessary for use in the motor vehicles and trailers were taxable under the Assam Finance (Sales Tax) Act, 1956 at the rate of 12 per cent at the point of first sale in the State of Assam. The Assam General Sales Tax Act of 1993 which repealed the Act of 1956 and three other Acts also provided for levy of tax at the point of last sale made on or after July 1, 1993 in the State of Assam. But the Act of 1993 do not provide that goods purchased before July 1, 1993 on payment of tax under the Act of 1956 shall be subject to payment of tax at 6 per cent if the last sale thereof is made on or after July 1, 1993 in the State of Assam. According to Dr. Saraf, the impugned circular issued by the Commissioner is, therefore, beyond the scope of the Act of 1993. Mr. A.K. Goswami, learned Government Advocate, however, argued that the Commissioner was within his competence under the provisions of the Act of 1993 to clarify the provisions with regard to levy of tax on second/last sale as provided in the Act. Mr. Goswami further elaborated that under the Assam Finance (Sales Tax) Act, 1956, no right was vested with the registered dealers inasmuch as the provisions for levy of tax at the last point of sale was non est under the Act of 1956 arid as such sales tax has to be paid on the last sale as provided in the Act of 1993.
It would appear that under the Assam Finance (Sales Tax) Act of 1956, there was no requirement for payment of tax at the last point of sale of the component parts of the motor vehicles and trailers. The sales tax was payable only once at 12 paise per rupee. But sales tax at the rate of 6 per cent has been levied on such sale by the Assam General Sales Tax Act of 1993 for the first time in the State of Assam. The question that emerges for determination in the given situation is whether any indefeasible right was vested on the registered dealers under the Act of 1956 in respect of the goods purchased prior to July 1, 1993 and sold at the last point on or after July 1, 1993 in supersession of the provisions of the Act of 1993.
Section 3 of the Assam Finance (Sales Tax) Act of 1956 provided that every dealer of taxable goods shall pay tax on his turnover at the rates specified in column 3 of the Schedule attached to the Act. Sub-section (2) of Section 3 provided that the tax Under Sub-section (1) shall be payable at the stage of first sale of the taxable goods in Assam. For better appreciation we may quote the relevant part of Section 3 of the Act of 1956. It reads as follows :
"3. Liability to tax.--(1) Every dealer in taxable goods shall pay a tax on his turnover at the rates specified in column 3 of the Schedule attached to this Act.
(2) The tax Under Sub-section (1) shall be payable at the stage of first sale of the taxable goods in Assam:
Provided that where any question arises as to whether any particular sale is the first sale in Assam the burden of proof that it is not the first sale shall be on the dealer making the sale."
Component parts of the motor vehicles and trailers were included as item No. 10A to the list of taxable goods attached to the Assam Finance (Sales Tax) Act, 1956. The said item No. 10A reads as follows :
"10A. Component parts of motor vehicles, tyres (including 12 paise in pneumatic tyres) and tubes ordinarily used for motor a rupee." vehicles and trailers (whether or not such tyres or tubes are also used for other vehicles), batteries and other articles adopted for use generally as parts or accessories of motor vehicles or trailers.
It is clear from the aforesaid provisions of the Act of 1956, that component parts of motor vehicles and tyres, etc., were to be taxed only once at the rate of 12 paise in a rupee.
The Assam General Sales Tax Act of 1993 was brought into force with effect from July 1, 1993 by a notification issued on June 11, 1993. As already stated earlier, the Assam Finance (Sales Tax) Act of 1956 and three other Acts on the field were consolidated in the Act of 1993. Section 74(1) provides for repeal. Before I deal with this section, it is necessary to have a look at the provisions relating to the taxability of the component parts of motor vehicles. In this Act of 1993, a double point tax system has been introduced on few selected categories of goods prescribed in Schedule IV. The tax on these items is either to be collected at the point of first sale and/or both at the first and last sale point of sale made in the State of Assam depending on the status of the dealers. I would like to quote hereinbelow the relevant provisions of Schedule IV which reflect the taxation policy of the State. The Schedule IV is as follows :
SCHEDULE IV
[See Section 8(1)(c)]
Point of levy and rate of tax (percent)
Sl. No. Description of goods At the point of first sale in the State to persons other than registered dealer. At the point of first sale in the State to a registered dealer At the point of last sale in the State.
(a) (b) (c)
1.
Component parts of motor vehicles and other articles adopted for use generally as parts or accessories of motor vehicles and trailers.
14 8 6
It would appear that the new taxation policy has been brought into force with effect from July 1, 1993, the day the Act was brought into force. The sales tax has been levied at the rate of 14 per cent at the point of first sale in the State to persons other than the registered dealers which is indicative that the overall rate of tax is limited to 14 per cent. This has been categorised again into two different parts, i.e., (i) on sale to registered dealers and (ii) at the point of last sale in the State of Assam. In case of sale to a registered dealers, the tax has been levied at the rate of 8 per cent and, in case of last sale, tax has been levied at the rate of 6 per cent. Thus, it appears that the rate of tax has been recast within the limit of 14 per cent. More precisely, the provisions in Schedule IV as quoted above show that the rate of sales tax has been increased from 12 per cent to 14 per cent with effect from July 1, 1993 with a break-up thereof depending upon the status of the customers. Consequently, the levy of sales tax at 6 per cent at the last point of sale is the inevitable outcome of such break-up.
The provisions of the Act of 1993 as pointed out above cannot be a matter of grievance for the registered dealers. The provisions for levy of tax at the point of last sale in the State are also not in challenge. Dr. Saraf, however, maintained that goods purchased before July 1, 1993 on payment of tax at 12 per cent and sold after July 1, 1993 will be taxed again at 6 per cent at the point of last sale which, according to him, would mean taxation at 18 per cent. Dr. Saraf continued that the provisions of the Act of 1993 do not intend levy of tax at 6 per cent on the goods purchased prior to July 1, 1993 and, therefore, impugned circular/letter of the Commissioner is in excess of the express provisions of law and cannot be sustained. In support of his contention, Dr. Saraf also placed reliance on the decisions of the Supreme Court in Vinod Gurudas Raikar Vs. National Insurance Co. Ltd. and others, , Commissioner of Income Tax Vs. Shah Sadiq and Sons, and of Gauhati High Court in Shree Kamrup Industries Assam Ltd. v. State of Assam [1995] 97 STC 19 . Mr. A.K. Goswami, learned State Counsel, however, relied on a decision of the Supreme Court in India Tobacco Co. Ltd. Vs. The Commercial Tax Officer, Bhavanipore and Others,
I have taken due note of the ratio laid down in the above cases. There is obviously no dispute to the law with regard to "savings". The rights which are expressly saved by the provisions of savings naturally stand saved. This, however, does not mean that a right which is not saved expressly by the saving provisions stands ipso facto terminated on repeal of the old statute. The rights which have accrued under provisions of law also stand saved unless they are taken away expressly. This is the ratio available in the cases referred by Dr. Saraf. But we are on a different situation in this case. The question before this Court is whether the goods purchased prior to July 1, 1993 on payment of full tax as per law then in force and sold on or after July 1, 1993 could be again subjected to tax under the provisions of the Act of 1993. The law laid down in the Act of 1993 is very clear on this point. Once the last sale is effected by a registered dealer on or after July 1, 1993, tax has to be levied on such sale at the rate of 6 per cent. It is immaterial whether the goods sold on or after July 1, 1993 at the last point were purchased before or after July 1, 1993. The Act of 1956 nowhere provides that the dealers would be exempted from payment of taxes on its hike at any point of time on some specified contingency. To construe a right in this direction may be a matter of imagination without legal backing, The intention of the Legislature being clear and unambiguous, there appears to be no escape from the liability of payment of tax at the rate of 6 per cent on the last/second sale by a registered dealer to any other person. The policy to levy sales tax at 6 per cent at the last point of sale made on or after July 1, 1993 in the State of Assam has been made the law by the State Legislature. This policy is completely foreign to the taxation policy under the Act of 1956. It is in no way in clash with any right vested under the Act of 1956. The Commissioner of Taxes by the impugned letter simply clarified the provisions of the law as above. Therefore, it cannot be faulted with.
I have also given due consideration to the provisions of repeal and savings as incorporated in Section 74 of the Act of 1993. It is true that the notifications/orders, etc., issued under the 1956 Act have been saved by the provisions incorporated in Section 74. But this does not in any way support the stand of the writ petitioners. It is not their case that they were enjoying exemption from payment of tax payable under the repealed Act by virtue of any exemption notification. In the instant case, the Legislature levied tax at the last point of sale within the State of Assam with effect from July 1, 1993, i.e., the day the new Act came into force. Therefore, any sale made on or after that date to any person other than a registered dealer is liable to be taxed at the rate of 6 per cent. It is not the case here that the registered dealers were required under the Act of 1956 to pay tax on sale of certain specified commodity, but enjoyed the privilege of exemption under any statutory notification, rule, etc., issued under any enabling provision of that Act. The provisions of repeal and savings relied upon on behalf of the writ petitioners is of no significance in the instant case. This ratio is also available in India Tobacco Co. Ltd. Vs. The Commercial Tax Officer, Bhavanipore and Others, relied upon by Mr. Goswami, learned State Counsel. In my considered opinion, as has been indicated hereinabove, any sale made on or after July 1, 1993 to any person other than a registered dealer being the second/ last sale shall be liable to be taxed as provided in Schedule IV of the Act of 1993. This is more so because the provisions in the Act of 1993 show that the tax on sale of component parts of the motor vehicles and trailers has been hiked to 14 per cent with a break-up thereof at the rate of 8 per cent and 6 per cent in case of first sale made to a registered dealer and in case of last sale made to the ultimate consumer, respectively. Therefore, the levy of 6 per cent as tax payable at the last point of sale introduced with effect from July 1, 1993 appears to be unavoidable if the sale at the last point is effected on or after July 1, 1993, even though the total tax to be paid on such sale of the goods purchased prior to July 1, 1993 would amount to 18 per cent.
In the result, the writ petition is dismissed. The stay order granted earlier stands vacated. No order as to costs.