MILAP CHANDRA, J. - (1.) THESE two sales tax revisions have been filed under Section 15, Rajasthan Sales Tax Act (hereinafter to be called 'the Act') against the common order of the learned Rajasthan Sales Tax Tribunal, Ajmer (hereinafter to be called 'the Tribunal') dated December 12, 1985. The facts of the case giving rise to these revisions may be summarised thus :
(2.) THE sales of 'desi Sweetmeats and Namkins' were exempted from tax vide notifications No. F5 (16) FDCT/69-13 and 14 dated April 1, 1969 issued under Section 4 (2) of the Act (printed at Serial Nos. 165 & 166 of Volume II of Law of Sale & Purchase Tax in Rajasthan by Jai Kumar Jain ). THE notification No- 14 relating to the 'namkins' was withdrawn vide notification No. F5 (24) FDCT/72-11i dated April 26, 1972 (printed at Serial No. 251n THE notification No. 13 relating to the 'desi Sweetmeats' was also withdraw), by issuing a corrigendum to the said notification dated April 26, 1972 vide notification dated October 5, 1972 (printed at Serial No. 263 of the said volume) THE business premises of the assessee - appellant was surveyed on January 18, 1973, October 30, 1974 and November 11, 1974 and accounts books were seized. THE assessing authority held the appellant liable for registration as a dealer under the Act w. e. f. 26 4. 1972 by his order dated January 14, 1974. It further held that the assessee effected sales to the extent of Rs. 1 lac during the period for 26. 4. 72 to 31. 3. 73 and accordingly imposed tax and penalty by his assessment order dated September 24, 1975. THE assessee filed appeals against these orders before the Deputy Commissioner (Apeals), Jodhpur. Both the appeals were allowed by him by his common order dated January 31, 1977 and the said orders of the assessing authority were set aside. THE Assistant Commercial Taxes Officer, Pali filed revisions before the Revenue Board, Ajmer against these appellate orders. On the establishment of the Tribunal in the year 1985, the revisions were received by the Tribunal and were registered as appeals as required under Section 13 (1) of the Rajasthan Sales Tax (Amendment) Act, 1984. After hearing the parties, the Tribunal held that the assessee was liable to pay tax with effect from April 26, 1972, sales of the Desi Sweemeats to the extent of Rs. 60,000/- only were effect during the period 26. 4. 72 to 31. 3. 73, the assessee is not liable to pay any penalty and accordingly allowed the appeals partly by its common order dated December 31, 1985. It has been contended by the learned counsel for the assessee that it is clear that the notification dated 1st April, 1969 relating to 'namkins' was withdrawn by notification dated 26. 4. 1972. By issuing corrigendum to this notification dated 26. 4. 1972 on October 5, 1972, exemption granted to the 'desi Sweetmeats' was purported to be withdrawn. He contended that the notification dated October 5, 1972 was not a corrigendum to the notification dated 26. 4. 1972, it was an independent notification and it could not have retrospective effect as Section 4 of the Act, as then stood, did not empower the State Government to issue a notification or to rescind it with retrospective effect. He relied upon A I. R. 1970 Supreme Court 385 and 42 STC 365. He lastly contended that the assessee was liable to tax with effect from October 5, 1972 and tax could be levied upon and collected from him his sales in respect of the period from 5. 10. 72 to 31. 3. 73 exceeded Rs. 50, 000/-, otherwise not. In reply, the learned counsel for the respondent contended that the aforesaid point was not raised by the assessee before the assessing and lower appellate authorities and as such it cannot be permitted to be raised before this Court in revision. Section 15 (1) of the Act provides that an assessee may file a revision on the ground that the case involves a question of law, Sub-Section (3) empowers the High Court to allow any other question of law to be raised. Sub-Section (3) requires that the application for revision shall precisely state the question of law. After hearing the parties, the High Court is required to decide the question of law stated in the application for revision. Admittedly, the said questions have been stated in the revision petitions. There is no provision either in the Act or in the Rajasthan Sales Tax Rules prohibiting a petitioner from raising a question of law which was not raised earlier before the lower authorities. It cannot be raised for the first time before this court. The question whether the said notification dated April, 1, 1969 exempting 'desi Sweetmeats' from tax stood rescinded with effect from April 26, 1972 or October 5, 1972 is a pure question of law and can well be agitated before this Court. Sub-Section (2) of Section 4 of the Act runs as under: - "where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, the State Government may, by notification in the official Gazette (exempt, whether prospectively or retrospectively from tax the (sale or purchase) of any goods or class of goods any person or class of persons on such conditions and on payment of such fee as may be specified in the notification. " The words "whether prospectively or retrospectively" were added by Rajasthan Sales Tax (Amendment) Act, 1976. Admittedly, the corrigendum notification dated October 5, 1972 was issued prior to this amendment of the Section 4 (2) of the Act. By it, the exemption granted to the Desi Sweetmeats' was purported to be withdrawn with effect from April 26, 1972. It is well settled law that in the absence of express power granted by the legislature to act retrospectively, it is not open to subordinate legislative body like the State Government to issue a notification either taking away vested right or imposing obligations with retrospective effect. Reference of Income Tax Officer, Ecpee Vs. Ponnoosu, (1), and Anando Soap Factory vs. Karnataka State (2), may be made here.
(3.) THE said corrigendum notification dated October 5, 1972 is infact an addendum to the notification dated April 26, 1972 and not a corrigendum. As already observed above, separate notifications No. 13 and 14 were issued on April 1, 1969 under Section 4 (2) of the Act exempting the sales of 'desi Sweetmeats' and 'namkins'. By notification dated April 26, 1972, notification No. 14 relating to 'namkins' was only rescinded. It is clear from its perusal that it was correct and complete so far 'namkins' were concerned and it did not require any correction. THEre was no question of issuing any corrigendum to it. By the subsequent notification dated October 5, 1972, the figures '69-14' appearing in the notification dated 26. 4. 1972 were substituted by the figures and word '69-13 and 14'. By this corrigendum notification, the notification relating to the exemption of 'desi Sweetmeats' was added in the notification dated 26. 4. 72. In any view of the matter, it cannot be said that it was a corrigendum to the previous notification dated April 26, 1972. Two notifications dealt with two different commodities, number 13 dealt with 'desi Sweetmeats' and number 14 dealt with 'namkins'. THEre was no question of any correction to the notification relating to Namkins. THEse two commodities namely 'desi Sweetmeats' and 'namkins' were exempted through two different notifications. THE notification relating to 'namkins' was rescinded by notification dated 26. 4. 1972 Similar notification could be issued on this dated rescinding notification relating to the 'desi Sweetmeats' and admittedly this was not done. By issuing notification dated October 5, 1972, the exemption from the payment of tax on the sale of 'desi Sweetmeats' could not be withdrawn with retrospective effect. As such the assessee could not be held liable for the' payment of tax on the sales of 'desi Sweetmeats' with effect from April 26, 1972. It could be held liable with effect from October 5, 1972. The tribunal has held the sales to the extent of Rs. 60,000/- for the period from 26. 4. 72 to 31. 3. 73. According to the notification No. 5 (31) FDCT/ 72-16 dated July 28, 1972 (printed at Serial No. 262 at page 182 of the said volume), sales of 'desi Sweetmeats' and 'namkins' prepared by Halwais themselves were taxable if the turnover of sales exceeded Rs. 50,000/ -. In view of the said figure of Rs. 60,000/- for the entire period, it cannot be said that the sales exceeded Rs. 50,000/- for the period from October 5, 1972 to 31. 3. 1973. As such the assessee cannot be held liable to pay any tax for the sales effected by him during the period from 1. 4. 72 to 31. 3. 73. Both the revisions deserve to be allowed. In the result, the revision No. 214/86 is partly allowed and it is held that the assessee appellant was liable for registration with effect from October 5,1972 and not with effect from April 26, 1972. The revision No. 213/86 is allowed and it is held that the assessee appellant was not liable to pay any tax for the sales effected by him during the year 1972-73. The orders of the assessing authority and also of the tribunal are modified to this extent and the common order of the Deputy Commissioner (Appeals,) Jodhpur dated 31. 1. 77 is restored. . ;