TaxTMI 
TaxTMI 
2023 (4) TMI 913
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....S. Priolkar in WP No. 141/2022, Mr P. Arolkar in WP No. 148/2022, Ms Sapna Mordekar in WP No. 228/2022, Mr T. Gawas in WP No. 229/2022 Mr Deep Shirodkar in WP No. 350/2022, Additional Government Advocates. JUDGMENT : (PER M.S. SONAK, J.) 1. The petitioners in this batch of petitions challenge the non-implementation of this Court's decisions in Writ Petition No. 424 of 2018 and connected matters despite Special Leave Petitions against the same being dismissed by the Hon'ble Supreme Court on the specious plea that such decisions "stand nullified" or are "rendered ineffective" after the passage of the Goa Value Added Tax (12th Amendment) Act, 2020 (impugned Amendment Act). In the alternative, the petitioners challenge the constitutional validity of the impugned Amendment Act on several grounds, including legislative override, legislative competence, manifest arbitrariness, etc. 2. Since substantially similar issues of law and fact arise in these matters, they are disposed of by a common judgment and order. The petitioners in Writ Petition Nos. 139, 140, 141, 148, 228 and 350 of 2022 (United Spirits Limited vs State of Goa) deal with alcohol for human consumption. Ther....
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....the honour of the mandamus would be processed after the outcome of the SLP. 3.7. The address of the above communication dated 23.07.2020 was shocking and unfortunate. This is because the Hon'ble Supreme Court had already dismissed the SLP on 08.06.2020, even without any notice to the Petitioner. In any case, the time limit for compliance had already expired, and the Hon'ble Supreme Court had granted no interim relief. Thus, even after the SLP was dismissed, the mandamus was not honoured. 3.8. Accordingly, the Petitioner was constrained to institute Contempt Petition under Stamp Number No. 1304/2020. After seeking several adjournments, the Assistant Commissioner of Commercial Taxes filed an affidavit in reply on 05.11.2021. 3.9. In this affidavit, a reference was made to the impugned Amendment Act, and based thereon, it was submitted that this Court's decision dated 19.11.2019 in Writ Petition No. 720/2019 and the mandamus issued therein "has been rendered ineffective due to the removal of the bases on which the said order was rendered". 3.10. Accordingly, the Petitioner was constrained to institute the present petition. PETITIONERS' CONTENTIONS : 4....
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....petent legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. The learned Counsel, therefore, submitted that as of 16.09.2017, the Goa Value Added Tax Act, 2005 (GVAT Act, 2005) would have lapsed. However, the State legislature enacted and introduced Goa Goods and Services Tax Act, 2017, effective from 01.07.2017, to align the tax on goods and services law with the Constitution (101st Amendment) Act, 2016. Therefore, in terms of Section 174 of the Goa Goods and Services Tax Act, 2017, GVAT Act, 2005 was repealed except in respect of goods included in Entry 54 of the State List of Seventh Schedule to the Constitution, viz. petroleum products and alcohol for human consumption. 4.5 The learned Counsel for the petitioners, therefore, contended that the State legislature could have never amended the repealed GVAT Act, 2005 without even bothering to revive the same, assuming such revival was possible after 16.09.2017. The learned Counsel for the petitioners relied upon several decisions supporting the contention that a repealed Act cannot be amended without revival. These include Reliance Industries Ltd. vs State of G....
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....ing these propositions. STATE'S DEFENCE : 5.1 The learned Advocate General defended the impugned Amendment Act by submitting that the same was a validating Act that had removed the bases of the judicial decisions the petitioners sought implementation of. He offered that the judicial decisions were entirely based on the interpretation of Sections 10 and 33 of the GVAT Act, 2005. Now that these Sections and even some linked Sections were substantially amended with retrospective effect, the bases of the judicial decisions stood altered, thereby rendering the judicial decisions ineffective and unimplementable. 5.2 The learned Advocate General submitted that this is a time-tested and permissible legislative exercise. He relied on Goa Foundation and Anr. vs. State of Goa (2016) 6 SCC 602, The Government of Andhra Pradesh and Anr. vs. Hindustan Machine Tools Ltd. (1975) 2 SCC 274, Easland Combines, Coimbatore vs. Collector of Central Excise (2003) 3 SCC 410, Bakhtawar Trust and Ors. vs. M.D. Narayan and Ors. (2003) 5 SCC 298, Shri Prithvi Cotton Mills Ltd. (supra), State of H.P. and Ors. vs. Yash Pal Garg (dead) by Lrs and Ors. (2003) 9 SCC 92, I.N. Saksena vs. State of Madhy....
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....Therefore, he proposed that no arbitrariness was involved in the impugned Amendment Act. He relied on Comorin Match Industries (P) Ltd. vs. State of T.N. (1996) 4 SCC 281, Commissioner of Income Tax, Gujarat vs. Gujarat Fluoro Chemicals (2014) 1 SCC 126, and Government of India vs. Citedal Fine Pharmaceuticals, Madras and Ors. (1989) 3 SCC 483. CONSIDERATION OF THE RIVAL CONTENTIONS : IMPERMISSIBLE JUDICIAL OVERRIDE? 6. The first question that falls for consideration is whether the impugned Amendment Act is an instance of impermissible judicial override to reverse or set at nought the judicial decisions of this Court even after SLPs against the same were dismissed by the Hon'ble Supreme Court. The petitioners contend that the Legislature has not removed the fundamental bases of the judicial decisions. On the other hand, the learned Advocate General argued that the fundamental bases are removed with retrospective effect; therefore, this is not an instance of legislative override. 7. Several decisions of the Hon'ble Supreme Court have fairly settled the legal position of validating statutes. However, there are always issues of application of such principles depending....
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....e Indian Constitution. 12. The Hon'ble Supreme Court held that the independence of Courts from the executive and Legislature is fundamental to the rule of law and one of the basic tenets of the Indian Constitution. Separation of judicial power is a significant principle under the Constitution of India. Accordingly, breaching the separation of judicial power may negate equality under Article 14. Separation of powers between three organs - the Legislature, Executive and Judiciary, is also nothing but the consequence of principles of equality enshrined in Article 14 of the Constitution of India. Thus, legislation can be invalidated based on a breach of the separation of powers since such a breach negates equality under Article 14 of the Constitution. 13. The Hon'ble Supreme Court further elaborated that the doctrine of separation of powers applies to final judgments of the Courts. Therefore, the Legislature cannot declare any decision of a Court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by the Court of law or on coming to know of it aliunde. In other words, a Court's decision must always bind unless the....
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....o. 18. Therefore, to begin with, we must advert to this Court's decision in United Spirits Limited vs. State of Goa and Ors. (USL decision) dated 16.10.2019 in Writ Petition No. 424 of 2018 because this was the lead decision relied upon to dispose of the other petitions in the batch. Then we propose to consider whether the impugned Amendment Act has removed the defects pointed out by the Court or otherwise altered the fundamental bases of this Court's decisions. In short, the scope of inquiry is whether the impugned Amendment Act is genuinely a validating Act or an instance of impermissible judicial override. 19. In USL, the main issue involved was the date from which simple interest at the rate of 8% per annum would become payable on the amount refundable under the provisions of the GVAT Act. The Court held that such interest would become payable on the 91st day from the expiry of the refund order, where such refund is not paid within 90 days of such determination. 20. To support the above conclusion/decision, the Division Bench of this Court did refer to and rely upon the provisions of Sections 10 and 33 of the GVAT Act. However, such reliance was not the sole or....
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.... must obtain sanction under Rule 30 of the said Rules. 23. This Court held that, for any reason, no sanction was obtained within 90 days from the date of the refund orders under Section 29 or from the date of receipt of the application for a refund under Section 10(3) of the GVAT Act. In that case, the assessing authorities could not avoid liability or payment of simple interest at the rate of 8% per annum on the specious plea that such liability commences only from the date of expiry of 90 days from the date of sanction or under Rule 30 of the said Rules. 24. In paragraphs 53 and 54, the Court relied upon Ranbaxy Laboratories Limited vs. Union of India and others (2011) 10 SCC 292., and Union of India and Ors. vs. Hamdard (WAQF) Laboratories (2016) 6 SCC 621., to hold that interest under Section 11-B and 11-BB of the Central Excise Act, 1944 commences from the date of expiry of three months from the date of receipt of an application for refund or on the expiry of three months from the date on which the refund order is made. Accordingly, the Court ruled that interest becomes payable after the expiry of three months from the date of application for refund and payment of such i....
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....elays in issuing the sanction orders, this Court ruled that a sanction order, whenever issued, would relate back to the date of the refund order so that Assessee was not deprived of interest on the excess tax paid by him. The impugned Amendment Act has not even touched this finding about relating back which attained finality after the dismissal of SLPs by the Hon'ble Supreme Court. 30. Fifthly and again, to ensure that no interest is denied to an Assessee due to procrastination by the authorities to issue a sanction order, this Court held that the 90-day time limit provided in Section 33(2) of the GVAT Act was, in fact, the time limit within which the assessing authorities "must obtain sanction in terms of Rule 30 of the said Rules "; Even this finding remains relatively untouched except that now it could be contended that the time limit under Section 10 or 33 is about 180 days. Accordingly, the principle remains unaffected by the impugned Amendment Act. 31. Sixthly, this Court also held that if, for any reason, a sanction order under Rule 30 of the said Rules was not obtained within these 90 days, the Assessing Authorities could not avoid liability for payment of simple ....
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....anctioning authority in case of an application for refund under sub-section (3) of section 10. This Bill seeks to achieve the above object." 33. The above Statement of Objects and Reasons reflects the following:- (a) that the impugned Amendment was "in light of recent judgment of the honourable High Court based on interpretation of Section 33 of Goa Value added Tax Act, 2005 read with Rule 30 of the Goa Value Added Tax Rules, 2005, which is different from the interpretation/intentions of the Government of the said provisions of the Act, regarding payment of interest on refund of Tax"; (b) That the Advocate General, in his opinion, tendered to the Government had suggested certain amendments to the GVAT Act "in order to do away with the effect of such an interpretation and to save revenue of the State"; (c) That the Bill seeks to retrospectively bring into effect the amendments of the proposed bill "notwithstanding contained in any order, judgment, decree, directions of any authority, tribunal or court or any other instrument having the force of law and shall apply to all cases from the date of enactment of the Goa Value Added Tax (Act 9 of 2005....
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....c of India as follows: 1. Short title and commencement. - (1) This Act may be called the Goa Value Added Tax (Twelfth Amendment) Act, 2020. (2) It shall come into force at once except sections 2, 3 and 4, which shall be deemed to have come into force on 1st April, 2005, 2. Amendment of section 10. - In section 10 of the Goa Value Added Tax Act, 2005 (Goa Act 9 of 2005) (hereinafter referred to as the "principal Act"), in sub-section (3), for the expression "shall be refunded in the prescribed manner within 3 months from the date of filing of application claiming the refund", the expression "shall upon an "application made by such exporter be refunded in such manner within a period of ninety days from the date of the sanction order of such authority, as prescribed" shall be substituted. 3. Amendment of section 29. - In section 29 of the principal Act, after sub-section (9), the following sub-section shall be inserted, namely: "(10) Where any order passed under this section, results in refund of any amount of tax, interest or penalty and no appeal, review or revision is filed against such order within the time limit specified in this Act, ....
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....t on refund under the provisions of the principal Act before its Amendment under this Act; b) no Court, Tribunal, officer or other Authority shall enforce any decree or order directing the payment of interest on refund under the provisions of the principal Act before its Amendment under this Act. Secretariat, Porvorim Goa Dated :17-08-2020 CHOKHA RAM GARG Secretary to the Government of Goa Law Department (Legal Affairs)." 36. The primary amendment applies to Sections 10 and 33 of the GVAT Act, 2005. Because the judicial decisions (that are now sought to be rendered ineffective) had provided that interest on excess and found refundable tax was to be paid from the 91st day of the "refund order " under Sections 10 and 33 of the GVAT Act, 2005, the impugned Amendment Act now provides that such interest would become payable from the 91st day of "sanction order". The other bases, which were fundamental, have not been touched by the impugned Amendment Act. 37. Apart from the wordings of unamended Sections 10 and 33 of the GVAT Act, 2005, the foundation of the judicial decisions of this Court, as affirme....
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....of Rule 30 of the said Rules would relate back to the date of the refund order made by the Assessing Authority. Such a view would be consistent with the finding that 90 days time limit provided in Section 33(2) of the GVAT Act (even after its Amendment) would be the time limit within which the appropriate Assessing Authority must obtain sanction in terms of Rule 30 of the said Rules. Finally, such a view could be taken by adverting to the Constitutional provisions in Articles 14, 265 and 300-A. 40. Therefore, we cannot accept the contention that the impugned amendments to Sections 10 and 33 of the GVAT Act were sufficient to knock off the base or the fundamental premise of this Court's decisions as affirmed by the Hon'ble Supreme Court. In particular, the Amendment has not even touched the aspect of scope and object of Rule 30 of the said Rules. The Amendment has not even touched the discrepancy arising from the refund to be made forthwith from the date of the sanction order as provided in Rule 30 of the said Rules. The impugned Amendment has not even dealt with the findings, based upon the interpretation of the scheme of the GVAT Act and the said Rules about the sanctio....
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....y the Authorities, rejection of interest by the Revenue Authorities by taking advantage of their own delays, are all findings and observations that are relatable to the facet of non-arbitrariness enshrined in Article 14 of the Constitution of India and the principle that no tax shall be levied or collected except by authority of law as enshrined in Article 265 of the Constitution of India. Therefore, such findings have not been and could not have been nullified by the impugned Amendment Act. 44. Moreover, because they relate to the provisions in Articles 14 and 265 of the Constitution, such findings could not have been nullified or watered down by simply amending the requirements of the GVAT Act. Accordingly, notwithstanding the attempt, we think the impugned Amendment Act has not displaced the base or all the bases of this Court's decisions. Some dent to one of the bases is not the same as a complete obliteration of all the grounds or premises on which the two decisions were founded. Therefore, notwithstanding the form of the impugned Amendment, the same cannot be regarded as a proper validating Act sufficient to render the two decisions ineffective, as claimed by the State....
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.... no tax should be levied or collected except by authority of law as provided by Article 265 of the Constitution. Therefore, even based on the legal submissions of the learned Advocate General, we hold that this is a case of impermissible judicial override. Accordingly, based upon the impugned amendments, the Respondents cannot refuse to comply with the directions in the judicial decisions that have attained finality. 48. In Laghu Udyog Bharati And Anr. vs Union Of India And Ors. (1999) 6 SCC 418, The Commissioner Of Central Excise vs Mangalam Cement Ltd. 2005 (187) ELT 5 (SC) and Gujarat Ambuja Cements Ltd. & Anr. vs Union Of India & Anr. (2005) 4 SCC 214, the Hon'ble Supreme Court has held that where the entire basis of a judgment is not removed in the amended statute, then the amended statute would still be struck down on the deficiencies pointed out by the Court. Further, unless the entire deficiencies are removed, a binding decision of the Court cannot be held to be nullified or rendered ineffective. The State cannot refuse to follow such binding decisions based upon part removal of deficiencies or by partly altering the basis of the judicial decisions. 49. The Hon....
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....has the power to enact validating laws and amend laws with retrospective effect. However, this can be done to remove causes of invalidity. When such a law is passed, the Legislature corrects the errors pointed out in a judicial pronouncement. Resultantly, it amends the law by removing the mistakes committed in the earlier legislation, which removes the basis and foundation of the judgment. If this is done, the same does not amount to statutory overruling. However, the Legislature cannot set at nought the judgments which have been pronounced by amending the law not to make corrections or remove anomalies but to bring in new provisions that did not exist earlier. The Legislature may have the power to remove the basis or foundation of the judicial pronouncement. Still, by introducing a new provision, the Legislature cannot overturn or set aside the judgment, that too retrospectively. The mandamus issued by the Court binds the Legislature. A judicial pronouncement is always binding unless the very fundamentals on which it is based are altered, and the decision could not have been given in the altered circumstances. Therefore, by introducing an amendment, the Legislature cannot overturn....
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....judicial decision binding between the parties. Section 11(4) of the impugned Act was also read down accordingly. The Court ruled that it is now well settled by a catena of decisions that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which, in substance, over-rules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. 58. The Hon'ble Supreme Court noted that the High Court had not struck down any legislation sought to be re-enacted after retrospectively removing any defect by the impugned provisions. The Hon'ble Supreme Court pointed out that this was a case where the High Court had given certain benefits to the petitioners on an interpretation of the existing law. The order of mandamus was sought to be nullified by enacting the impugned provisions in a new statute. The Court held that this would be clearly an impermissible legislative exercise. 59. The Hon'b....
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....ations and intrusion into the judicial power by the Legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India." 61. The precedents in Karnataka Pawn Brokers Association and S.R. Bhagwat (Supra) address legal and factual issues similar to the present case. The State of Goa has attempted to replicate the Karnataka model, assuming it could be called a 'model' after the Hon'ble Supreme Court struck down the legislative exercise as an instance of impermissible legislative overruling. Based on these precedents, we believe the impugned Amendment Act must suffer the same fate. Based upon the impugned amendment Act, the State cannot ignore the binding judicial decisions in these cases. 62. Most decisions relied upon by the Learned Advocate General concerned genuine validation Acts where the defects pointed out by the judicial decisions were removed and the fundamental bases of the judicial decisions altered. Again, most of these decisions reiterate the principles in Shri Prithvi Cotton Mills Ltd (Supra) and other decisions referred to above. Accordingly, by accepting the propositions of law in such dec....
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....ed on the principle that repeal at common law obliterates the statute as if it was never enacted except for past and closed transactions. The Gujarat High Court, after referring to decisions of the Hon'ble Supreme Court, Craies on Statute Law, 7th Edition at pages 411-412, Bennion on Statutory Interpretation, 6th Edition at Pg 276 and Justice G.P. Singh in his Principles of Statutory Interpretation, 12th Edition 2010 concluded that at common law, a statute becomes non-existent on its repeal, unless saved by some saving provision. 69. The arguments based on the General Clauses Act or the provisions of Section 19 of the Constitution (101st Amendment) Act, 2016 on the effect of repeal were also turned down by the Division Bench of the Gujarat High Court to conclude that there was no question of purporting to amend a repealed law which stood obliterated post the repeal and in the absence of any appropriate sanctioning clause. The learned Advocate General made similar arguments in the present cases. 70. The Division Benches also relied upon the decision of the Federal Court in Jatindra Nath Gupta (supra), wherein it was held that it is competent to the Legislature in exercisin....
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....ven the learned Advocate General did not go as far as to contend that a lapsed enactment can also be amended by a retrospective amendment without any clause for revival. 74. Therefore, at least prima facie, the impugned Amendment Act, 2020, in so far as it applies to goods other than those included in amended Entry 54, would be ultra vires, null and void. Therefore, based upon the impugned Amendment Act, the relief granted to the petitioners in Writ Petition No.23/2021 and 229/2022 could not have been withheld. LEGISLATIVE COMPETENCE : 75. Regarding legislative competence, we must refer to the Constitution (101st Amendment) Act, 2016, which entered force on 16.09.2016. This Amendment brought about several changes, including the insertion of Article 246-A and the substitution of new Entry 54 in List II to the Seventh Schedule to the Constitution of India. 76. The Division Benches of the Gujarat High Court, Telangana High Court, Kerala High Court and Allahabad High Court have held that post the Constitution (101st Amendment) Act, 2016, the State Legislatures lost legislative competence to make laws on taxes on sales or purchases of goods other than the six specified goods....
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.... Ltd. (supra) was not dissented from but only distinguished in paragraph 124 by observing that the said judgment "clearly indicates that Section 84A considered by the Gujarat High Court in the said judgment was incorporated by the said Legislature w.e.f 3rd April, 2018. The Amendment came into effect on 16th September, 2016. The said Amendment carried out by the State of Gujarat was carried out after one year to the said constitutional amendment i.e. on 3rd April, 2018. On 1st July, 2017, the Gujarat GST Act had already come into force. The said judgment of the Gujarat High Court in the case of Reliance Industries Ltd. Vs. State of Gujarat and others (supra) is thus clearly distinguishable on the facts and would not assist the case of the petitioner". 80. Thus, on facts, the present cases are similar to the facts before the Gujarat High Court. The primary Amendment in the Maharashtra Act was enacted within one year of the coming into force of the Constitution (101st Amendment) Act, 2016. However, Gujarat and the Goa amendments were after one year, i.e., 2018 and 2020 respectively. Further, there is a similarity between Section 174 of the Gujarat GST Act, 2017 and Section 174 of ....
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....ver, the Hon'ble Supreme Court reversed the Bombay High Court by observing that no authority can ever accept an obligation to make a payment and simply refuse to pay. In each and every case, an authority must at least claim to act in accordance with the law and hence claim that it has no obligation to pay for some reason or another. When the claims of the authority are found to be unsustainable or erroneous by the Courts, it follows that the authority has acted wrongfully in the sense of not being in accordance with the law and compensation to the party deprived must follow. If the decision of the High Court is upheld, it would mean that there can never be any wrongful retention by an authority until this Court holds that their stand is not in accordance with the law. 84. In Sandvik Asia Ltd. (supra), the Court noted that where interest was granted after a substantial lapse of time, interest must normally follow. The Court noted that while charging interest from the assesses, the Department first adjusts the amount paid towards interest so that the principal amount of tax payable remains outstanding. Therefore, they are entitled to charge interest until the entire outstandin....
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....n the reasoning in the decisions of the Hon'ble Supreme Court on the issue of the necessity to pay interest by way of compensation where tax refunds are unduly delayed. DEPRIVATION OF VESTED CONSTITUTIONAL RIGHTS WITH RETROSPECTIVE EFFECT 87. Further, in the facts of the present case, by giving retrospective effect to the impugned Amendment Act, the right to the interest which was crystallized in the petitioners' favour is sought to be taken away. The learned Advocate General's only contention was that the right to receive interest was not fundamental or constitutional but only a statutory right which could always be taken away. He relied on CMD/Chairman, Bharat Sanchar Nigam Limited & Ors. vs. Mishri Lal & Ors. (2011) 14 SCC 739. 88. In CMD/Chairman, Bharat Sanchar Nigam Limited & Ors. (supra), the Hon'ble Supreme Court held that the expression "vested right" could only mean a vested constitutional right since a constitutional right cannot be taken away by an Amendment of rules. The Court relied upon the Constitution Bench ruling in Railway Board vs C.R. Rangadhamaiah (1997) 6 SCC 623 in which it was held that pension is no longer treated as a bounty but w....
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....the procrastination and delays of its own Officers, has deprived parties, including the petitioners, of interest at the statutory rate and the object of the impugned Amendment Act was to perpetuate this situation. However, even this affidavit does not even bother to furnish any reasons or causes for the inordinate delay in either making refunds or sanction orders by the departmental officers. 94. Independent of the impugned Amendment Act's validity or applicability to the petitioners' case, this Court could and is directing interest payment to the petitioners as determined in the earlier judicial decisions. This is because even under the impugned Amendment Act, the State is not absolved from making sanction orders within a reasonable period. The learned Advocate General submitted that the provisions of the impugned Act may not be struck down simply because no period within which sanction orders must be made may have been specified. He submitted that even where no time limit is prescribed, the concept of reasonable time must be read into such provisions. He agreed that powers must be exercised within a reasonable time even where no time limit may have been prescribed. He ....