The State of Tamil Nadu vs Tvl. Shree Meenakshi Metal (India)

K. Raviraja Pandian, J.—This revision is filed against the order of the Sales Tax Appellate Tribunal Main Bench dated 13.08.1999 made in

T.A. No. 516 of 1998 and COP No. 63/98/MB.

The appellant is a dealer in hides and skins and is an assessee on the file of the respondent. It declared a total and taxable turnover of Rs.

9,61,81,208/- and Rs. 1,20,20,405/- respectively in respect of the assessment year 1993-94. The assessing officer, on check of accounts, has

found that the exemption claimed u/s 5(3) of the Act on a turnover of Rs. 1,94,72,889/- is not correct. Further, the claim that the levy of additional

surcharge on declared goods was not chargeable, was also disallowed. The Appellate Assistant Commissioner, on appeal by the assessee, has

confirmed the order of the assessing officer in respect of denial of exemption u/s 5(3) of the Act and also observed that the notification granting

exemption from payment of additional surcharge was not available during the relevant time as the charging provision itself was deleted from the

statute and on that premise confirmed the order of the assessing officer. The correctness of the same was canvassed before the Tribunal. The

Tribunal, on the premise that the exemption notification, has been considered in T.A. No. 478/98, and the issue was decided in favour of the

assessee by order dated 18.05.1999 allowed the appeal of the assessee. The correctness of the same is now canvassed before this Court in this

revision.

The one and the only point raised in this revision is that whether the action of the Tribunal in granting the relief of exemption of additional

surcharge is correct or not.

It is contended by the learned Special Government Pleader that the charging provision Section 3A of the Act was deleted from the statute book

on 01.04.1989, but subsequently was reintroduced from 01.07.1989. In such circumstances, as and when substantive provision was deleted, any

notification issued with reference to such substantive provision automatically gets cancelled and comes to an end.

The notification read as under:

Sale or Purchase of declared goods - Additional surcharge - Exemption (Tamilnadu) Notification G.O.P. No. 647 dated 09.06.1981 No.

II(1)/CTRE/270(e)/81:

In exercise of the powers conferred by Sub-section (1) of Section 17 of the TNGST Act, 1959 (Tamil Nadu Act 1 of 1959) read with Section 3-

A of the Tamil Nadu Sales Tax (Surcharge) Act, 1971 (Tamil Nadu Act 24 of 1971), the Governor of Tamilnadu hereby makes an exemption in

respect of the additional surcharge payable by any dealer under the Tamilnadu Sales Tax (Surcharge) Act, 1971 (Tamilnadu Act 24 of 1971) on

the sale or purchase of declared goods within the limits of the city of Madras and its suburban area within two kilometers.

The notification shall come into force on the 10th day of June 1981.

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This notification was issued in accordance with Section 17 of the Tamil Nadu General Sales Tax Act, which invested the power of the

Government either to exempt or reduce the tax payable by the dealer. Sub-section (1) of that section provides that the Government may, by

notification, issued whether prospectively or retrospectively, make an exemption, or reduction in rate, in respect of any tax payable under this Act.

Sub-section (3) provides that the Government may, by notification, cancel or vary any notification issued under Sub-section (1). Sub-section (4)

provides that the Government may, in such circumstances and subject to such conditions, as may be prescribed, by notification, remit the whole or

any part of the tax or penalty or fee payable in respect of any period by any dealer under this Act.

Thus, the power of issuing a notification as well as the power of cancelling the notification were available with the Government. If the

Government, after issuing a notification, did not choose to cancel the same, as in this case, the notification remains to be in force and the benefit of

that notification has to be given to the assessee. Once the power of cancelling the exemption has not been invoked by the Government that

notification has to be given effect to, unless it is cancelled by the process known to law. As the notification was not cancelled, it is very clear that

the Government did not want to cancel the benefit. The other contention of the Government Pleader is that the notification is qualified with

reference to the city of Madras and other peripheral areas, and due to be cancelled when a particular provision has been taken away from the

statute. We are not able to approve the argument of the learned Government Pleader. Even in the reintroduced section, there is no much difference

when compared to the earlier section. De hors the deletion and re-introduction of the section, unless the notification issued by the Government for

which the Government has every power is cancelled as per law, the benefit of the exemption granted by that Notification has to be extended to the

assessee.

We do not find any illegality or irregularity in the order of the Tribunal. This revision is dismissed for the reasons stated above. No costs.