TaxTMI 
TaxTMI 
2018 (12) TMI 1824
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....t such rate not exceeding one percent as may be notified by the Government. The Government has issued G.O.Ms.No.2, CT & R Department dated 01.01.2007 notifying that a dealer who has opted to pay under this provision shall have to pay tax @ « %. But then, such a dealer is subjected to certain conditions. (a) He cannot collect any tax from his purchasers. (b) He cannot avail any ITC on the goods purchased by him and also the dealer who puchased goods from such dealer shall not be entitled to ITC (c) he cannot make any inter~state purchase. 2. If these conditions are breached by the dealer, the consequence will be that the composition given to him to pay at « % on the turn over would stand withdrawn and he will have to pay under Section 3(2) of the Act. This provision found place in the Act even from the beginning in order to benefit the small dealers whose annual turn over did not exceed Rs. 50.00 lakhs. But then, the law makers did not foresee the possibility of the annual turn over of the dealers crossing Rs. 50.00 lakhs even before the close of the assessment year. The question that arose was how to deal with such cases. Therefore, Section 3(4) of the Act was rec....
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.... impugned order dated 08.01.2015 came to be passed levying a tax of Rs. 7,62,035/~ Questioning the same, this writ petition has been filed. 5.Heard the learned counsel appearing for the petitioner as well as the learned Additional Government Pleader for the respondent. 6.The learned Additional Government Pleader appearing for the respondent contended that this writ petition is not maintainable since the writ petitioner has not exhausted the remedy of appeal available under the Act. He also pointed that the case on hand will have to be judged in the light of the pre~ amendment position and that the writ petitioner cannot call in aid Tamil Nadu Act 27 of 2011. This is because admittedly the said amendment came into effect only on 01.04.2012. The case on hand pertains to the assessment year 2010~11. He drew the attention of this Court to G.O Ms.No.135, CT & RE (B1) dated 31.10.2011. According to which 01.04.2012 has been appointed as the date on which the Tamil Nadu Act 27 of 2011 shall come into force. He therefore called upon this Court to sustain the order impugned in this writ petition. 7.The learned counsel appearing for the petitioner on the other hand contende....
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....01.04.2012 has been notified as the date on which the Act is to come into force cannot be put against the petitioner. The general principles concerning retrospectivity have been authoritatively laid down by the Five Judges Bench by the Hon- ble Supreme Court in the decision reported in 2015( 1 SCC 1 (Commissioner of Income Tax (Central) ? I, New Delhi vs. Vatika Township Private Limited). It was held therein as under : General Principles concerning retrospectivity 27.A legislation, be it a statutory Act or a statutory Rule or a statutory Notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non fiction or even in a judgment of a court of law. There is a technique required to draft a legislation as well as to understand a legislation. Former technique is known as legislative drafting and latter one is to be found in the various principles of Interpretation of Statutes?. Vis~...~vis ordinary prose, a legislation di....
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....slation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Government of India & Ors. v. Indian Tobacco Association, the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in Vijay v. State of Maharashtra & Ors. It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are (sic not) confronted with any such situation here. 31.In such cases, retrospectively is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumpt....
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....g of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language - shall be deemed always to have meant- is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre~ amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law." The above summing up is factually based on the judgments of this Court as well as English decisions. 33.A Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas & Anr while considering the nature of amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: 8.....The amending cl....
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....Abdul Gani Lone) has laid down the principles for construing a particular statutory requirement as directory or mandatory. The relevant portion of the aforesaid decision reads as under : "The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word ?shall? while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question has to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non~compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any pu....