P. K. BANERJEE, C. J. - (1.) IN this writ application, the question which arises for consideration is that whether the notice issued by the assessing authority on 26-9-1972 u/s 16 (1) (i) of the Rajasthan ST Act r/w s. 9 of the CST Act asking the petitioner to show cause as to why the penalty may not be imposed under the aforesaid provisions for wrongly showing the sales worth Rs. 10,00. 000 as sales outside the State instead of inter-State sales, is illegal, arbitrary and without jurisdiction.
(2.) THE petitioner took the plea that under the CST Act r/w Rajasthan ST Act as stood on 1-10-1957, the notice as served is illegal and ultra vires. Apprehending the respondents will impose a penalty on it, in view of the notice issued on 27-1-1983, the petitioner moved this court and obtained the present rule. The only question, which was raised before me by Mr. Mehta, on behalf of the petitioner is that the provisions of the Rajasthan ST Act as stood in 1957 did not contain the amended s. 16 (1) (i) of the Rajasthan ST Act of 1954. Before the amendment s. 16 (!) (i) was not in existence. It appears that it has been amended by 'amendment in Rajasthan Tax Law Amendment Ordinance w. e. f. 2-10-1964. Sec. 16 (1) (i) stood as follows: "fraudulently evades or avoids the payment of tax or conceals his liability or tax. " This amendment was in 1964. It was inserted by Amendment Act of 1964. Previously, the provision was not there between 1954 and 1964, The question, therefore arises whether s 9 of the CST Act, the RSF Act as stood in 1957 or as in 1964 or subsequent thereafter will apply or not. Mr. Mehta, on behalf of the petitioner contended that the amendment of 1964 is not applicable and Rajasthan ST Act of 1954 as amended and as stood on 1-7-1957 when CST Act came into force, will apply and subsequent amendment cannot be taken advantage of by Sales- tax authority under the CST Law. There is a Division Bench judgment of this Court reported in CTO, Special Circle-1, Jaipur vs. Man Industrial Corporation (1 ). The Hon'ble Judges of the Division Bench speaking Jagat Narayan C. J. as he then was inter-alia, held that in view of the decision of Hon'ble Supreme Court in Shama Rao vs. Union Territory of Pondicherry (2) the RST Act, 1954, as it stood on 1-7-1957, is applicable so far as assessments under the CST Act, 1956 are concerned. There is no provision in the CST ( Amendment) Act, 1969, laying down that the Rajasthan Act as it stood on the date of coming into force of the CST (Amendment) Act, 1969 will be applicable and, therefore, the Rajasthan Act as it stood in 1969 is not applicable in disposing of cases under the CST Act, 1956. Mr. Sharma, on behalf of the respondents, however, contended that the basis of a judgment reported in Mysore Electrical Industries Ltd. vs. Commercial Tax Officer (3) that if we consider the definition of Sales Tax Law and General Sales Tax Law of the State, all subsequent amendment of the General Sales Tax of the State is also attracted.
(3.) IT appears that the Hon'ble Judges of Mysore High Court differed with a decision of Madras High Court reported in (1967) 20 STC 146 and came to a finding, which of course supports Mr. Sharma's contention. In a case reported in (1°67) 20 STC 146, a Division Bench Judgment, it has been held by their Lordships that while it is competent for the Parliament to adopt the existing provision of local law as part of the Central Legislation without repeating those provisions in the Central Act, it cannot make a law adopting the provisions of a local law which does not exist at that time. Therefore, unless the 1939 Act contained power to lew a penalty such a power given to the department for the first time u/s 12 (3) of the 1959 Act, which repeated in 1939 Act, cannot be regarded u/s 9 (3) to be adopted for the purpose of the Central Act. The above view taken by the Madras High Court, in my opinion, is the correct view and is also in accordance with the view taken by this Hon'ble Court in the Division Bench judgment reported in 26 STC 169 (supra ). In the circumstances, therefore, the rule must be made absolute. The impugned order and the notice must stand discharged, but there would be no order as to costs. . ;