Amending Act fixing a higher rate retrospectively.

For the assessment year 1953-54 the petitioner was assessed to sales tax on the turnover of his hotel business at 4½ pies in the rupee under the Proviso to section 3 (1-b) as it stood then of the Madras General Sales Tax Act (IX of 1939), to which we shall hereafter refer to as the Act. The Tribunal applied the law laid down by this Court in W.P. No. 313 of 1954, that the statutory provision authorising the levy of tax at 4½ pies in the rupee was unconstitutional and unenforceable and held that the tax should be assessed only at 3 pies per rupee. That decision of the Tribunal was rendered on 28th May, 1956. The excess amount of Rs. 936-1-2 that had been collected from the petitioner was refunded to him by adjustment on 30th September, 1956. The Madras General Sales Tax (Third Amendment) Act (XV of 1956), to which we shall refer hereafter as the Amending Act, received the assent of the President on 1st October, 1956 and was published in the Gazette on 8th October, 1956. Section 17 of the Amending Act validated assessments under the provisions of the Proviso to section 3 (1) of the Act before it was amended. In addition the Amending Act amended the Proviso to section 3(1) of the Act with retrospective effect from 1st August, 1949 and the amended Proviso authorised levy of tax on the turnover of hotels at 4½ pies in the rupee.

After the Amending Act XV of 1956 came into force, the Deputy Commercial Tax Officer, the assessing authority, issued a notice to the petitioner on 8th January, 1957, asking him to show cause why the assessment should not be revised at the rate sanctioned by the amended Act, that is, at 4½ pies per rupee. The objections of the petitioner were overruled and by his order dated 7th February, 1957 the Deputy Commercial Tax Officer held that the petitioner was liable to be assessed to a tax of Rs. 2,808-3-5 on his turnover, and a demand notice was issued to the petitioner to pay up the balance still due, Rs.936-1-2, which represented the difference between the tax originally assessed at 3 pies and the tax subsequently assessed at 4½ pies in the rupee. The Commercial Tax Officer, to whom the petitioner appealed against the revised assessment, dated 7th February, 1957, dismissed the appeal on the basis, that there had been no assessment on 7th February, 1957 and that therefore no appeal lay. The petitioner appealed to the Tribunal. The Tribunal held that section 17 of the Amending Act XV of 1956 validated the demand made of the petitioner and dismissed the appeal.

The petitioner applied to this Court under section 12-B of the Act to revise the order of the Tribunal.

The view taken by the Tribunal was erroneous. Section 17 of the Amending Act (XV of 1956) could not validate the order of the Deputy Commercial Tax Officer dated 7th February, 1957. The finality of the original assessment for 1953-54 wasunder the order of the Tribunal dated 28th May, 1956, and that order directed assessment to tax not at the rate of 4½ pies but at the rate of 3 pies per rupee. Section 17 of the Amending Act did not operate to set aside that order of the Tribunal or to revive the original assessment which the Tribunal had modified. The statutory finality of the assessment which flowed from the order of the Tribunal, dated 28th May, 1956 was left untouched by section 17 of the Amending Act. The learned Government Pleader did not seek to support either the view taken by the Tribunal or that taken by the first appellate authority, the Commercial Tax Officer.

The learned Government Pleader contended that the validity of the revised assessment ordered by the Deputy Commercial Tax Officer on 7th February, 1957 could be rested either on rule 17 (3) or rule 18 (1) of the Madras General Sales Tax Rules, 1939, though the order of the assessing authority did not ex facie refer to any provision under which the original assessment was revised.

Rule 18 (1), which permits rectification of mistakes, could not have been invoked by the assess