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PETITIONER: STATE OF MADRAS

       Vs.

RESPONDENT: S.   PADMANABHAN ETC. January 21, 1971

DATE OF JUDGMENT21/01/1971

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. (CJ) HEGDE, K.S.

CITATION:  1971 AIR 2081            1971 SCR  (3) 457

ACT: Tamil Nadu General Sales Tax Act, 1959-Act coming into force on April 1, 1959-Published in Official Gazette on March  18, 1959-G.O. 976 issued under Act on March 28, 1959 authorising notification  under s. 17 to be published on April 1,  1959- Notification coming into force on April 1, 1959-Exemption of fresh   fruits   under   earlier  Act   taken   away   under notification-Validity  of notification whether  affected  by fact that it was issued before coming into force of Act.

HEADNOTE:  The  respondents  were  dealers in  fruits  in  Tamil  Nadu.  Originally under the Madras General Sales Tax Act, 1939  the  sale   of  fruits  was  liable  to  tax.   By  means  of   a  notification  dated March 25, 1954 the sale of fruits  among  other commodities was exempted from payment of tax under  s.  6  of the Act.  The 1939 Act was repeated and re-enacted  by  the  Madras  (now Tamil Nadu) General Sales  Tax  Act.  1959  which  was  published in the official gazette on  March  18,  1959.  The State Government passed G.O. No. 976 on March 28,  1959 by which the new Act was to come into force from  April  1, 1959.  To the G.O. was annexed a notification under s. 17  of  the Act which was directed to be published on  April  1,  1959 and was to come into force on that date.  According  to  the  notification fresh fruits ceased to be exempt from  tax  under  the  Act.   Subsequently  fresh  fruits  were   again  exempted  with effect from April 1, 1960.  Thus it was  only  during  the  assessment year 1959-60 that,  the  respondents  were liable to pay tax on the sale of fresh fruits under the  provisions  of  the Act.  By the judgment under  appeal  the  High Court struck down notification No. 976 dated March  28,  1959  which  was to take effect from April 1,  1959  on  the  ground  that  it had been issued before the  Act  came  into  force.   The respondents were held to be entitled by  reason  of  the saving provision of s. 61 of the Act to  invoke  the  exemption  that  had been granted under the earlier  Act  of  1939.   By special leave appeals were filed by the State  of  Madras in this Court.  HELD : The mere fact that the impugned notification bore  an  earlier  date was of no consequence.  Section 53(4)  of  the  Act expressly provides that all notifications under the  Act  shall,  unless  they are expressed to come into force  on  a

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particular  date come ’into force on the day an  which  they  are  published.  The notification in question was stated  to  come into ’force on April 1, 1959.  Besides it was published  on that very day.  Therefore in terms of cl. (b) of s. 53(4)  of  the  Act the notification bad come into  force  only  on  April  1, 1959 and not earlier.  No one had  challenged  nor  indeed  could it be disputed that on April 1, 1959  a  valid  notification  could be issued under s. 17 of the  Act.   For  this  reason alone the validity of the notification must  be  upheld. [460 B-E]  The appeals must accordingly be allowed.  Bopanna  Venkateswaraloo  &  Ors. v.  Supt.   Central  Jail,  Hyderabad, State, [1953] S.C.R. 905, held inapplicable.

JUDGMENT:  CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 177 to 183  of 1967.  458  Appeals  by special leave from the judgment and order  dated  December  28, 1964 of the Madras High Court in Writ  Appeals  Nos. 354 to 360 of 1963.  S.   T.  Desai and A. V. Rangam, for the appellants (in  all  the appeals).  T.  A.  Ramachandran,  for  the  respondents  (in  all   the  appeals).  The Judgment of the Court was delivered by  Grover, J. These appeals by special leave from a judgment of  the  Madras High Court involve the question of the  validity  of a notification No. 976 issued under the provisions of the  Tamil  Nadu General Sales Tax Act, 1959, hereinafter  called  the Act, which was to come into force on April 1, 1959.  The respondents are dealers in friuts in the State of  Tamil  Nadu.   Originally under the Madras General Sales  Tax  Act,  1939  the sale of fruits was liable to tax.  By means  of  a  notification  dated March 25, 1954 the sale of fruits  among  other commodities was exempted from payment of tax under  s.  6 of that Act.  The 1939 Act was repealed and re-enacted  by  the Act which was published in the Official Gazette on March  18, 1959 but which was to come into force, as stated before,  on April 1, 1959.  Oil March 28, 1959 the Government  passed  G.O. No. 976 which was as follows :-  "The Madras General Sales Tax Act, 1959, which will  replace  the Madras General Sales Tax Act 1939, will come into  force  from  1st  April  1959.  The Government  have  examined  the  question  of  continuing or withdrawing the  exemption  from  sales  tax  or the reductions in rates of sales tax  so  far  granted  under the Madras General Sales Tax Act,  1939,  and  such  of them as have been decided to be continued from  Ist  April  1959  are specified in the notifications  annexed  to  this order:  2.   The notifications   annexed  to  this  order  will   be        published  in the Fort.  St.  George  Gazette.        The  Controller  of Stationery  and  Printing,        Madras,   is  requested  lo  publish  in   the        notification  in the Fort St. George  Gazette,        dated the 1st April 1959 without fail.  The notification itself may also be reproduced:  "In  exercise of the powers conferred by Section 17  of  the  Madras  General Sales Tax Act, 1959 (Madras Act I  of  1959)  and in supersession of all the notifications issued under S.  6  of the Madras General Sales Tax Act, 1939 (Madras Act  IX  of 1939) the Governor of  459

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Madras  hereby  makes the exemption in respect  of  the  tax  payable, under the said Madras General Sales Tax Act,  1959,  on the sale or purchase of the goods or class of goods or by  the class or persons or institutions in regard to the  whole  or  part  of their turnover specified in column (2)  of  the  Schedule, below subject to the conditions and  restrictions,  if any, specified in the, corresponding entry in column  (3)  thereof.  This  notification shall come into force on the 1st  day  of  April 1959."  In  the Schedule which contained the exemptions fresh  fruit  was  not one of the items which was exempted from  tax.   In  other  words by virtue of this notification the  respondents  became  liable  to pay tax on the sale of fresh  fruit  with  effect  from  April 1, 1959.  It may be mentioned  that  the  exemption with regard to fresh fruits was once again granted  with  effect  from April 1, 1960.  It was  only  during  the  assessment year 1959-60 that the respondents were liable  to  pay tax on the sale of fresh fruits under the provisions  of  the Act.  It is unnecessary to refer to the course which the  litigation  in  the  shape of writ petitions  filed  by  the  respondent  took in the High Court.  It would be  sufficient  to mention that by the judgment under appeal the High  Court  struck  down the notification No. 976 dated March  28,  1959  which  was to take effect from April 1, 1959.  It  was  held  that  this notification had been issued before the Act  came  into force which amounted to an exercise of power which  did  not  exist  on  the  date  on  which  the  notification  was  promulgated.  It was further held that the respondents  were  entitled  by reason of the saving provision of S. 61 of  the  Act to invoke the exemption that had been granted under  the  earlier Act of 1939.  Section 3 provides for the levy of taxes on sale or purchase  of  goods.   Under the first proviso to sub-s. (1)  of  that  section  it  was expressly laid down that in case  of  goods  specified  therein which included fresh fruits the  rate  of  tax  would  be 1% on the turnover of a  dealer  whose  total  turnover  for a year was not less than Rs. 10,000/-.   Under  the second proviso the dealers dealing exclusively in one or  more  of  the goods enumerated in the first  proviso  except  foodgrains,  rice  products, wheat products and  milk  whose  total  turnover for a year was not more than  30,000/-  were  not  to  be liable to pay tax under sub-s.  (1)  Section  17  empowered   the  Government  by  notification  to  make   an  exemption or reduction in rate in respect of any tax payable  under the Act.  Now what the Government did was that it made  an  order  on March 28, 1959 in anticipation of  the  coming  into  force of the Act on April 1, 1959.  It decided that  a  notification  be published in the Fort.  St. George  Gazette  on April 1, 1959 declaring the exemp-  460  tions  which  would  be granted under s. 17 of  the  Act  in  supersession of all the previous notifications issued  under  s.  6  of  the Act of 1939.  It is  not  disputed  that  the  impugned notification was actually published in the  Gazette  on April 1, 1959.  On that date the Act had come into force.  We  are wholly unable to comprehend how the validity of  the  notification   could  be  impugned  when  it  was   actually  promulgated  on the date on which the Act came  into  force.  The  mere  fact  that  it bore an earlier  date  was  of  no  consequence.  Section 53(4) of the Act expressly provided :  "(a) All rules made under this Act shall be published in the  Fort.  St. George Gazette, and unless, they are expressed to  come  into force, on a particular day shall come into  force  on the day on which they are so published.

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(b)  All notifications issued under this Act, shall,  unless  they  are expressed to come into force on a particular  day,  come into force on the day on which they are published.  The  notification in question was stated to come into  force  on  April 1, 1959.  Besides, it was published on  that  very  day.   Therefore, in terms of clause (b) it came into  force  only  on  April  1,  1959 and  not  earlier.   No  one  has-  challenged  nor indeed it can be disputed that on  April  1,  1959 a valid notification could be issued under s. 17 of the  Act.  For this reason alone the validity of the notification  must be upheld.  On behalf of the respondents our attention has been  invited  to Boppanna Venkateswaraloo & Others v. Superintendent, Cen-  tral Jail, Hyderabad State(1).  The facts in that case  were  altogether different and have been discussed in the judgment  of  the  High Court.  We consider it wholly  unnecessary  to  refer  to  them  as the point which arose  there  about  the  validity  of  certain  orders  made  under  the   Preventive  Detention  (Second  Amendment) Act 1952 was  entirely  of  a  different nature and is not apposite for the purpose of  the  present case.  In  the result the appeals are allowed and the  decision  of  the High Court is hereby reversed.  The writ petitions shall  stand  dismissed.  In view of the entire  circumstances  the  parties are left to bear their own costs.  G.C.                                                 Appeals  allowed.  (1)  [1953] S.C.R. 905.  461