{"id":215793,"date":"1972-09-05T00:00:00","date_gmt":"1972-09-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-krishnamurthi-co-etc-vs-state-of-madras-anr-on-5-september-1972"},"modified":"2017-09-03T00:50:31","modified_gmt":"2017-09-02T19:20:31","slug":"ms-krishnamurthi-co-etc-vs-state-of-madras-anr-on-5-september-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-krishnamurthi-co-etc-vs-state-of-madras-anr-on-5-september-1972","title":{"rendered":"M\/S. Krishnamurthi & Co. Etc vs State Of Madras & Anr on 5 September, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Krishnamurthi & Co. Etc vs State Of Madras & Anr on 5 September, 1972<\/div>\n
Equivalent citations: 1972 AIR 2455, \t\t 1973 SCR (2)\t 54<\/div>\n
Author: H R Khanna<\/div>\n
Bench: Khanna, Hans Raj<\/div>\n
           PETITIONER:\nM\/S.  KRISHNAMURTHI & CO.  ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MADRAS & ANR.\n\nDATE OF JUDGMENT05\/09\/1972\n\nBENCH:\nKHANNA, HANS RAJ\nBENCH:\nKHANNA, HANS RAJ\nHEGDE, K.S.\nREDDY, P. JAGANMOHAN\n\nCITATION:\n 1972 AIR 2455\t\t  1973 SCR  (2)\t 54\n CITATOR INFO :\n MV\t    1985 SC 421\t (77)\n R\t    1986 SC 662\t (49)\n\n\nACT:\nMadras\tGeneral Sales Tax (Third Amendment) Act, 1967  Entry\n47  and 47-A of the First Schedule-Whether invalid  as\tthey\nseek to impose Sales Tax with retrospective effect.\n\n\n\nHEADNOTE:\nUnder  Entry 47 of the First Schedule of the Madras  General\nSales  Tax  Act,  1959, the sale  of  'lubricating  oil\t and\ngreases' was liable to sales tax at the point of first\tsale\nin the State at 6 per cent.  With effect from April 1, 1964,\nEntry  47 was amended and instead of the words\t\"lubricating\noils  and greases;\" \"lubricating oils, all kinds of  mineral\noils (not otherwise provided for in this Act) quencing\toils\nand greases,\" were included.\nTill  September 30, 1965, the assessments were made  on\t the\nassumption  that  the  amendment of entry  47  had  made  no\ndifference  to\tsale of furnace oil.  The dealers  paid\t and\ncollected the tax on that basis and the department  accepted\nit.   Thereafter, according to a resolution of the Board  of\nRevenue,  the  dealers started charging tax on\tfurnace\t oil\nfrom  September 14, 1965 at the rate of 6 per cent  although\nfurnace\t oil  was  a non-lubricating mineral  oil,  and\t the\nassessment orders were made accordingly.  The view expressed\nby  the Board of Revenue that entry 47 as  amended  included\nfurnace\t oil was challenged before the High Court by a\twrit\nand  the  High Court held that entry 47 as amended  did\t not\ninclude\t furnace oil.  Appeal against the said\tjudgment  is\npending before the Supreme Court.\nThereafter, Madras General Sales Tax Act was a.-lain amended\n(Third\tAmendment)  by\twhich  all  kinds  of  mineral\toils\nincluding  furnace oil were included in entry 47  and  Sales\nTax would be payable during the period from April 1, 1964 to\nNovember  30,  1965  at the rate of 6%\tand  the  rate\tfrom\nDecember 1, 1965 to June 17, 1967, had been fixed at 61% and\nwith effect from June 18, 1967, the rate had been fixed at 7\nper  cent  and\tSec.  4\t validated  all\t taxes)\t levied\t and\ncollected before the passing of the amending Act and no suit\nlay for the refund of any tax paid or collected.\nThe  appellants\t who are dealers in mineral  oils  including\nfurnace\t  oils\t filed\twrit   petitions   challenging\t the\nretrospective  imposition of a single point tax\t on  furnace\noil  and other non-lubricating oils for the period prior  to\nJanuary\t 5,  1968,  as violative of Art. 14 and\t 19  of\t the\nConstitution.\tThe High Court, however, dismissed the\twrit\npetitions.  Dismissing the appeals,\nHELD   :  (i)  The  legislative\t power\tconferred   on\t the\nappropriate legislatures to enact laws in respect of  topics\ncovered\t by  the several entries in the three lists  can  be\nexercised both prospectively and retrospectively.\nThe legislative power, in addition, includes the  subsidiary\nor auxiliary power to validate laws which have been found to\nbe invalid. if a law passed by a legislature is struck\tdown\nby the Court as being invalid for one infirmity or  another,\nit would be competent to the appropriate legislature\n55\nto  cure the said infirmity and pass a validating law so  as\nto  make  the provisions of the said earlier  law  effective\nfrom the date when it was passed. [59B]\nRai Ramkrishna & Ors. v. The State of Bihar,<\/a> [1964];  S.C.R.\n897, referred to.\n(ii) In the present, case, the amending Act was intended  to\ncure an infirmity as revealed by the judgment of the  Madras\nHigh  Court and to validate the past levy and collection  of\ntax in respect of all kinds of non-lubricating mineral oils,\nincluding furnace oils, with effect from April 1, 1964.\t For\nthis  purpose, the legislature split the original  entry  47\ninto two entries 47 and 47-A whereby, the sale of all  kinds\nof  mineral  oils were made liable to tax. it  is  axiomatic\nthat   the  Government\tneeds  revenue\tto  carry   on\t the\nadministration\tand fulfil its obligation to  the  citizens.\nFurther amending and validating Act to make \"small  repairs\"\nis  a  permissible  mode of legislation\t and  is  frequently\nresorted to in fiscal enactments. [61B]\nTherefore, the impugned provisions of the Amending Act are a\nvalid piece of legislation and do not contravene Art. 19  of\nthe Constitution.\nEnari  Chinna Krishana Moorthy v. State of Orissa  [1964]  7\nS.C.R. 185; M\/s.  J. K. Jute Mills Co. Ltd. v. The State  of\nU.P. and Anr. [1962] 2 S.C.R. 1; The Union of India v. Madan\nGopal Kabra,<\/a> [1954] S.C.R. 451; Jaora Sugar Mills (P)  Ltd.,\nv.  State  of  Madhya Pradesh & Ors.<\/a> [1966]  1\tS.C.R.\t523,\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 471-474 of
\n1969.\n<\/p>\n
Appeals\t by certificate from the judgment and  order,  dated
\nSeptember  27,\t1968  of  the  Madras  High  Court  in\tWrit
\nPetitions Nos. 283 to 286 of 1968.\n<\/p>\n
M.   C. Setalvad, Ravinder Narain, A. K. Verma, J. B.  Dada-
\nkanji and O. C. Mathur, for the appellants.
\nS.   T.\t Desai,\t A.  V. Rangam and A.  Subhashini,  for\t the
\nrespondents.\n<\/p>\n
The Judgment of the Court\t was delivered by
\nKHANNA, J.-This judgment would dispose of four civil appeals
\nNo. 471 to 474 of 1969 which have been filed on\t certificate
\ngranted\t by the Madras High Court and are directed  against
\nthe, common judgment of that court, whereby petitions  under
\narticle\t 226  of  the Constitution of  India  filed  by\t the
\nappellants  were  dismissed.   The  crucial  question  which
\narises\tfor  determination in these appeals is\twhether\t the
\nprovisions  of\tMadras General Sales Tax  (Third  Amendment)
\nAct,  1967  (Act No. 19 of 1967) are invalid on\t the  ground
\nthat they seek to impose sales tax with retrospective effect
\nin an unreasonable manner.\n<\/p>\n
According  to  entry  47 of First  Schedule  to\t the  Madras
\nGeneral\t Sales\tTax  Act,  1959\t (Madras  Act  1  of   1959)
\n(hereinafter referred to as the principal Act), the sale  of
\n“lubricating oils and
\n56<\/span>
\ngreases” was liable to sales tax at the point of first\tsale
\nin the State at 6 per cent.  With effect from April 1,\t1964
\nentry 47 was amended by Madras Act 7 of 1964 and instead  of
\nthe words “lubricating oils and greases” in that entry,\t the
\nfollowing words were substituted
\n\t      “Lubricating  oils, all kinds of mineral\toils
\n\t      (not  otherwise  provided\t for  in  this\tAct)
\n\t      quenching oils and greases”\n<\/p>\n
Till September 30, 1965, it is stated, the assessments\twere
\nmade  on the assumption that the amendment of entry  47\t had
\nmade  no  difference to sales of furnace oil and  they\twere
\nliable\tto multipoint tax at 2 per cent.  The  dealers\tpaid
\nand collected tax on that basis and the department  accepted
\nit.   The  Board  of Revenue, on being moved  by  a  dealer,
\npassed a resolution on August 28, 1965 wherein it  expressed
\nthe view that entry 47, as amended, included furnace oil and
\ntransformer off.  The dealers thereafter from September\t 14,
\n1965  started charging tax on furnace oils at the rate of  6
\nper cent on the first sale of those oils and the  assessment
\norders\twere  made  accordingly.  Furnace  oil,\t it  may  be
\nstated,\t  is  a\t non-lubricating  mineral  oil.\t  The\tview
\nexpressed  by the Board of Revenue that entry 47 as  amended
\nincluded  furnace  oil\twas challenged in  a  writ  petition
\nbefore\tthe  Madras  High Court.  The High  Court  gave\t its
\ndecision  on  August  2, 1967.\tThe title of  the  case\t is
\nBurmah\tShell Oil Storage and Distributing Company of  India
\nLimited, Madras 1 and Others v. The State of Madras, and  it
\nis  reported in (1968) 21 S.T.C. 227.  The High\t Court\theld
\nthat  having regard to the objects and reasons\tappended  to
\nMadras\tAct  7 of 1964 and the association  of\twords  which
\npreceded and followed the words “all kinds of mineral oils”,
\nthe  words “,III kinds of mineral oils” had only  a  limited
\nmeaning, namely, mineral oils which were lubricants.   Entry
\n47  as amended was, therefore, held not to  include  furnace
\noil.   Appeal against the said judgment, we have been  told,
\nis pending in this Court.\n<\/p>\n
The  above decision of the Madras High Court led to the\t en-
\nactment\t of the Madras General Sales Tax  (Third  Amendment)
\nAct,  1947 (Act No. 19 of 1967) (hereinafter referred to  as
\nthe amending Act).  The amending Act received the assent  of
\nthe  Governor on December 29, 1967 and was published in\t the
\nFort  St. George Gazette, Extraordinary on January 5,  1968.
\nSection\t 2  of the amending Act has recast entry 47  in\t the
\nFirst Schedule to the principal Act and has also inserted  a
\nnew entry 47-A.\t Section 2 reads as under
\n\t      “2.  Amendment of First Schedule to Madras Act
\n\t      1 of 1959.-In the First Schedule to the Madras
\n\t      General  Sales Tax Act, 1959 (Madras Act 1  of
\n\t      1959)   (hereinafter   referred  to   as\t the
\n\t      principal Act),-\n<\/p>\n
\t      57<\/span><\/p>\n
\t      a)    during the period commencing on the\t 1st
\n\t      April  1964 and ending with the 30th  November
\n\t      1965,  for  item 47 and the  entries  relating
\n\t      thereto, the following shall be deemed to have
\n\t      been substituted, namely :-\n<\/p>\n
\t     \"47       Lubricating   oils   (not   otherwise\n\t      provided for inDo\t   6\tthis Act), quenching\n\t      oils and greases.\n<\/pre>\n
     47-A All kinds  of\t mineral  oils\t(other\tthan   those
\n\t      failingDo\t 6″;  under   item   47\t  and\t not
\n\t      otherwise provided for in\t     this      Act),
\n\t      including furnace oil.\n<\/p>\n
(b)   during the period commencing on\tthe   1st   December
\n1965 and ending with the 17th June 1967, for item 47 and the
\nentries\t relating thereto, the following shall be deemed  to
\nhave been substituted, namely :-\n<\/p>\n
     “47  Lubricating oils (not otherwise provided for in Do   61\/
\n2\tthis
\n\t      Act), quenching oils and greases.\n<\/p>\n
     47-A All kinds  of\t mineral  oils\t(other\tthan   those
\n\t      falling Do 6 1\/2″;\tunder  item  47\t and
\n\t      not otherwise provided for in\t  this Act),
\n\t      including furnace oil.\n<\/p>\n
     (c)  with effect  on  and from the 18th  June1967,\t for
\n\t      item 47 and the entries relating thereto,\t the
\n\t      following\t  shall\t be  deemed  to\t have\tbeen
\n\t      substituted, namely :-\n<\/p>\n
     “47  Lubricating oils (not otherwise provided for Do  7
\n\t      in this Act), quenching oils and greases.
\n     47-A All kinds  of\t mineral  oils\t(other\tthan   those
\n\t      falling Do 7”. under item 47 and not otherwise
\n\t      provided for in\t\tthis Act), including
\n\t      furnace oil.\n<\/p>\n
It  would  thus appear that according to the  amendment\t the
\nsales  tax would be payable during the period from April  1,
\n1964 to, November 30, 1965 on items mentioned in entries  47
\nand 47-A at the rate of 6 per cent.  The rate for the period
\nfrom  December 1, 1965, to June 17, 1967 has been  fixed  at
\n61\/2  per cent and with effect from June 18, 1967  the\trate
\nhas been fixed at 7 per cent.  Section 4 of the amending Act
\nis the validating section and reads as under :\n<\/p>\n
\t      “4. Validation.-Notwithstanding anything\tcon-
\n\t      tained  in. any judgment, decree or  order  of
\n\t      any court or other authority, all taxes levied
\n\t      or collected or purporting to have been levied
\n\t      or  collected under the principal Act  on\t the
\n\t      sale  of the goods specified, in item 47-A  of
\n\t      the  First  Schedule to the principal  Act  as
\n\t      amended by this Act for the period  commencing
\n\t      on the 1st April 1964 and ending with the date
\n\t      of the publication of this Act in the Fort St.
\n\t      George  Gazette  shall  for  all\tpurposes  be
\n\t      deemed to be, and to have always been  validly
\n\t      levied or collected in accordance with law  as
\n\t      it section 2 had
\n\t      58<\/span>
\n\t      been in force at all material times when\tsuch
\n\t      tax was levied or collected and accordingly,-\n<\/p><\/blockquote>\n
\t       (a)  all acts, proceedings or things done  or
\n\t      taken  by any authority, officer or person  in
\n\t      connection with the levy or collection of such
\n\t      tax  shall, for all purposes, be deemed to  be
\n\t      and  to  have  always been done  or  taken  in
\n\t      accordance with law;\n<\/p><\/blockquote>\n
\t      (b)   no\tsuit  or other proceeding  shall  be
\n\t      maintained  or continued in any court for\t the
\n\t      refund of any tax so paid;\n<\/p><\/blockquote>\n
\t      (c)   no\tcourt  shall enforce any  decree  or
\n\t      order  directing\tthe  refund of\tany  tax  so
\n\t      paid.”\n<\/p><\/blockquote>\n
The  appellants, who are dealers in mineral  oils  including
\nfurnace\t oils,\tfiled writ petitions in the  High  Court  to
\nchallenge  the\tvalidity  of  the  amending  Act.   It\t was
\ncontended on their behalf that retrospective imposition of a
\nsingle\tpoint tax on furnace oil and  other  non-lubricating
\noils  for  the period prior to January 5, 1968\twas  illegal
\ninasmuch   as  it  violated  articles  14  and\t19  of\t the
\nConstitution.\t This  contention  of  the  appellants\t was
\nrepelled  by  the High Court and their writ  petitions,\t as
\nmentioned earlier, were dismissed.\n<\/p>\n
Mr.  Setalvad in appeal before us has assailed the  validity
\nof the provisions of sections 2 and 4 of the amending Act on
\nthe  ground  that  the\tretrospective  operation  of   those
\nprovisions  is\tviolative  of article 19 (1  )\t(g)  of\t the
\nConstitution   inasmuch\t as  it\t  constitutes\tunreasonable
\nrestriction on the right of the appellants to carry on their
\ntrade and business.  As against that Mr. Desai on behalf  of
\nthe respondents contends that there has been no unreasonable
\nrestriction  on the exercise of the right of the  appellants
\nand  the  impugned provisions cannot be struck down  on\t the
\nground\t that  the  legislature\t has   given   retrospective
\noperation   to\tthose  provisions.   In\t our  opinion,\t the
\ncontention of Mr. Desai is well founded.\n<\/p>\n
We  may at the outset state that though the legislature\t can
\npass  a law and make its provisions retrospective, it  would
\nbe relevant to consider the effect of the said retrospective
\noperation  of  the law both ‘in respect of  the\t legislative
\ncompetence of the legislature and the reasonableness of\t the
\nrestriction imposed by it.  It would thus be open to a party
\naffected  by  the provisions of an Act to contend  that\t the
\nretrospective operation of the Act so completely alters\t the
\ncharacter  of the tax imposed by it as to take\tout  outside
\nthe  limits  of\t the  entry  which  gives  the\t legislature
\ncompetence  to enact the law or it may be open to the  party
\nto contend in the alternative that the restrictions  imposed
\nby the Act are so unreasonable
\n59<\/span>
\nthat they should be struck down on the ground that they con-
\ntravene the fundamental rights granted under article 19 (  1
\n) (f and (g) of the Constitution.  At the same time, we have
\nto  bear ‘ in mind that the legislative power  conferred  on
\nthe  appropriate  legislatures to enact laws in\t respect  of
\ntopics covered by the several entries in the three lists can
\nbe exercised both prospectively and retrospectively.   Where
\nthe  legislature  can make a valid law, it may\tprovide\t not
\nonly   for  the\t prospective  operation\t of   the   material
\nprovisions  of\tthe said law, it can also  provide  for\t the
\nretrospective\toperation  of  the  said  provisions.\t The
\nlegislative  power, in addition, includes the subsidiary  or
\nauxiliary power to validate laws which have been found to be
\ninvalid.  If a law passed by a legislature is Struck down by
\nthe court as being invalid for one infirmity or another,  it
\nwould  be competent to the appropriate legislature  to\tcure
\nthe  said infirmity and pass a validating law so as to\tmake
\nthe  provisions\t of the said earlier law effective from\t the
\ndate when it   was  passed lsee Ramakrishna & Others v.\t The
\nState ofBihar (2)   .\n<\/p>\n
In  the light of what has been stated above, we can find  no
\nlegal infirmity in the provisions of the amending Act.\tAs a
\nresult\tof  the amendment made by Madras Act 7\tof  1964  in
\nentry  47 of the First Schedule to the principal Act,  sales
\ntax,  it appears, was intended to be levied on all kinds  of
\nmineral\t oils.\t The Madras High Court, however’,  took\t the
\nview   in  the\tcase  of  Burmah  Shell\t Oil   Storage\t and
\nDistributing Company of India Limited (supra) that the words
\n“at kinds of mineral oils” took colour from the words  which
\npreceded  and followed them and, as such, the  mineral\toils
\nmentioned  in  the  entry had  a  limited  meaning,  namely,
\nmineral\t  oils\twhich  were  lubricants.   Entry   47\twas,
\ntherefore, held not to include furnace oil which was a\tnon-
\nlubricant  mineral oil.\t It was with a view to get over\t the
\neffect\tof that decision and to prevent the refund of  sales
\ntax  already realised on the assumption that the words\t“all
\nkinds  of  mineral oils” also covered mineral oils  of\tnon-
\nlubricating  nature  that the amending Act was\tpassed.\t  It
\nwould  ‘be  pertinent  in  this\t context  to  reproduce\t the
\nstatement  of  Objects and Reasons appended  to\t the  Madras
\nGeneral Sales Tax (‘Third Amendment) Bill, 1967 as under:\n<\/p>\n
\t      “In  Tax\tCase  Nos. 108 to 110  of  1967\t the
\n\t      Madras  High  Court held that  the
\n\t      expression  “all kinds of mineral\t oils  (,not
\n\t      otherwise provided for in this Act)” occurring
\n\t      in  entry\t 47  of the First  Schedule  to\t the
\n\t      Madras General Sales Tax Act, 1959 (Madras Act
\n\t      1\t of 1959) as amended by the  Madras  General
\n\t      Sales Tax (Amendment) Act, 1964 (Madras Act  7
\n\t      of  1964) will cover only such of the  mineral
\n\t      oils as are lubricants
\n\t      (1)   [1964] 1 S.C.R. 897.\n<\/p><\/blockquote>\n
\t      6 0
\n\t      and  not\tfurnace\t oil, etc.,  which  are\t not
\n\t      lubricants.   It\tis, therefore,\tproposed  to
\n\t      make a separate entry in the First Schedule to
\n\t      the  Act so as. to cover all kinds of  mineral
\n\t      oils (other than those falling under entry  47
\n\t      and  not otherwise provided for in the  Act),
\n\t      including furnace oil the rate being the\tsame
\n\t      as for entry 47 and to validate the past\tlevy
\n\t      and collection of +ax in respect of all  kinds
\n\t      of mineral oils (other than lubricating  oils,
\n\t      quenching oils and greases) including  furnace
\n\t      oil  with\t effect from the  1st  April,  1964.
\n\t      Existing\tentry  47  is also  proposed  to  be
\n\t      amended  to cover only lubricating  oils\t(not
\n\t      otherwise provided for in the Act),  quenching
\n\t      oils and greases.”\n<\/p><\/blockquote>\n
It  would thus appear that the amending Act was intended  to
\ncure  an infirmity as revealed by the judgment of  the\tHigh
\nCourt and to validate the past levy and collection of tax in
\nrespect\t of  all  kinds\t of  non-lubricating  mineral  oils,
\nincluding furnace oils, with effect from April 1, 1964.\t The
\nlegislature  for-this  purpose split the original  entry  47
\ninto two entries, 47 and 47-A.\tThe new entry 47 related  to
\nlubricating  oils (not otherwise provided for in  the  Act),
\nquenching  oils\t and greases, while entry 47-A\tcovered\t all
\nkinds  of mineral oils (other than those falling under\titem
\n47  and not otherwise provided for in the  Act)\t including
\nfurnace oil.  The tax levied by entry 47-A, in our  opinion,
\nwas  not a fresh tax.  It seems, as mentioned earlier,\tthat
\nthe legislature had intended as a result of the change\tmade
\nin entry 47 by Act 7 of 1964 to levy tax on sale of  mineral
\noils  of  all kinds, including non-lubricants, at  the\trate
\nmentioned  in  that  entry.  As the  language  used  by\t the
\nlegislature in that entry was found by the High Court to  be
\nnot  appropriate  for levying tax on sale  of  non-lubricant
\nmineral oils, the amending Act was passed by the legislature
\nto  rectify and remove the defect in the language  found  by
\nthe  High  Court, so that the tax on sale  of  non-lubricant
\nmineral oils might be levied at the rate specified in  entry
\n47  from April 1, 1964 when Act 7 of 1964 came\tinto  force.
\nIt  is axiomatic that the Government needs revenue to  carry
\non  the\t administration\t and fulfil its\t obligation  to\t the
\nctizens.   For\tthat purpose it resorts\t to  taxation.\t The
\ntotal amount needed is a apportioned under different  heads.
\nThe  fiscal enactments brought on the statute book  in\tthat
\nconnection  are\t sometimes challenged by the  tax  payer  in
\ncourts\tof  law.   The\tcourts\tthen  scrutinise  the  legal
\nprovision to decide whether the levy of tax is legally valid
\nor suffers from some infirmity.\t In case the court conics to
\nthe  conclusion\t that the levy of tax is not  valid  as\t the
\nlegal  provision enacted for this purpose does\tnot  warrant
\nthe   levy  of\ttax  imposed  because  of  some\t defect\t  in
\nphraseology or other infirmity. the
\n\t\t\t     61<\/span>
\nlegislature  quite often passes an amending  and  validating
\nAct.   The  object  of such an enactment is  to\t remove\t and
\nrectify the defect in phraseology or lacuna of other  nature
\nand also to validate the proceedings, including\t realisation
\nof  tax, which have taken place in pursuance of the  earlier
\nenactment  which has been found by the Court to be  vitiated
\nby  an, infirmity.  Such an amending and validating  Act  in
\nthe  very  nature of things has a  retrospective  operation.
\nIts aim is to effectuate and carry out the object for  which
\nthe  earlier  principal\t Act  had  been\t enacted.   Such  an
\namending  and validating Act to make “small   a\t permissible
\nmode of legislation and is frequently resorted to in  fiscal
\nenactments.  As observed in 73 Harvard Law Review 692 at  p.
\n705 :\n<\/p>\n
\t      “It  is necessary that the legislature  should
\n\t      be   able\t to  cure  inadvertent\tdefects\t  in
\n\t      statutes\tor  their administration  by  making
\n\t      what  has\t been aptly called  ‘small  repairs’
\n\t      Moreover,\t the  individual who claims  that  a
\n\t      vested  right  has arisen from the  defect  is
\n\t      seeking a windfall since had the legislature’s
\n\t      or  administrator’s action had the  effect  it
\n\t      was  intended to and could have had,  no\tsuch
\n\t      right  would have arisen.\t Thus, the  interest
\n\t      in the retroactive during of such a defect  in
\n\t      the administration of government outweighs the
\n\t      individual’s  interest in benefiting from\t the
\n\t      defect.\t  The\tCourt  has   been   extremely
\n\t      reluctant to override the legislative judgment
\n\t      as to the necessity for retrospective taxation
\n\t      not only because of the paramount governmental
\n\t      interest\tin obtaining adequate revenues,\t but
\n\t      also because taxes are not in the nature of  a
\n\t      penalty or  a  contractual  obligation   but
\n\t      rather  a means of apportioning the costs.  of
\n\t      government among those who benefit from it.”\n<\/p><\/blockquote>\n
The   above  passage  was  quoted  with\t approval   by\t the
\nConstitution  Bench of this Court in the case  of  Assistant
\nCommissioner of Urban Land Tax and Others v. The  Buckingham
\n& Carnatic Co. Ltd.,<\/a> etc. (1)
\nThe  period from April 1, 1964 to September 13, 1965  during
\nwhich  the sales tax authorities charged multipoint  tax  on
\nsale  of furnace oil at the rate of 2 per cent was,  in\t our
\nopinion;  very short and did not give rise to some  kind  of
\nvested\tright in favour of the appellants.  It may  well  be
\nthat  the  matter  had not till then been  examined  by\t the
\nhigher\tauthorities.  It was only when the Board of  Revenue
\nwas moved that the opinion was expressed by the Board as per
\nresolution  dated  August  28, 1965 that  entry\t 47  covered
\nfurnace oil.\n<\/p>\n
(1)  [1970] 1 S.C.R. 268.\n<\/p>\n
62<\/span><\/p>\n
In  the case of Rai Ramkrishna & Others (supra)\t this  Court
\ndealt with the, validity of Bihar Taxation on Passengers and
\nGoods  (Carried by Public Service Motor Vehicles) Act,\t1961
\nin  the\t following  circumstances.   The  Bihar\t Legislature
\npassed\tthe Bihar Finance Act, 1950 on March 30, 1950.\t The
\nAct  levied a tax on passengers and goods carried by  public
\nservice motor vehicles in Bihar.  The appellants  challenged
\nthe validity of the Act and Its provisions were struck\tdown
\nby  this  Court.   The\trespondent  then  issued  the  Bihar
\nOrdinance  on  August  1,  1961.   By  that  Ordinance,\t the
\nprovisions of the Act of 1950 which had been struck down  by
\nthis   Court   were  validated\tand   brought\tinto   force
\nretrospectively from the date when the earlier, Act purport-
\ned to come into force.\tLater on, the provisions of the said
\nOrdinance  were\t incorporated  in  the\tBihar  Taxation\t  on
\nPassengers  and\t Goods\t(Carried  by  Public  Service  Motor
\nVehicles)  Act,\t 1961.\t As a result  of  the  retrospective
\noperation  of the Act of 1961, its material provisions\twere
\ndeemed\tto  have come into force from April  1,\t 1950.\t The
\nvalidity  of  the Act of 1961 was challenged on\t the  ground
\nthat  the retrospective operation of the provisions  of\t the
\nAct   changed  its  character  and  took  it   outside\t the
\nlegislative  competence of the legislature.  It was  further
\nargued that the retrospective operation was so\tunreasonable
\nthat  it  could not be saved under clauses (5)\tand  (6)  of
\narticle 19 of the Constitution.\t Both these contentions were
\nrepelled and it was held that the test of the length of time
\ncovered\t by the retrospective operation could not by  itself
\nbe treated as a decisive test.\n<\/p>\n
In  the\t case of Epari Chinna Krishna Moorthy  v.  Stale  of
\nOrissa<\/a>(1)  this Court dealt with the validity of the  Orissa
\nSales Tax Validation Act, 1961.\t The petitioner in that case
\nwas a merchant carrying on business in “bullion and  specie”
\nand  gold and silver ornaments.\t He was a registered  dealer
\nunder  the  Orissa  Sales Tax  Act,  1947.   The  petitioner
\nclaimed\t exemption from payment of sales tax in\t respect  of
\ncertain gold ornaments on the basis of a notification issued
\non July 1, 1949 under section 6 of that Act.  The sales\t tax
\nauthorities disallowed the petitioner’s claim who  thereupon
\nfiled  writ  petitions in the High Court.   The\t High  Court
\nupheld\tthe petitioner’s claim and issued  writs  directing.
\nthe  sales  tax officer to allow the petitioners  claim\t for
\nexemption.   After  the\t judgment of the  High\tCourt,\tthe
\nimpugned Act was passed by the legislature on August 1, 1961
\nand  was published on September 18, 1961.  Section 2 of\t the
\nimpugned Act sought to put a meaning on the notification  of
\nJuly  1, 1949 and stated that the notification shall  always
\nbe  deemed to have meant like that.  One of the\t contentions
\nraised in that case was that the retrospective operation  of
\nthe impugned section should
\n(1)  [1964] 7 S.C.R. 185.\n<\/p>\n
\t\t\t     63<\/span><\/p>\n
be  struck  down  as unconstitutional because  it  imposed
\nunreasonable  restrictions on the  petitioner’s\t fundamental
\nright  under  article 19 (1) (g).  This contention  did\t not
\nfind  favour  with  this Court and it was  observed  that  a
\nlegislation   could   not  be  struck  down   although\t the
\nretrospective operation might operate harshly in some cases.
\nIn  the case of M\/s J. K.  Jute Mills Co. Ltd. v. The  State
\nof  Uttar Pradesh and Another<\/a>(1) this Court referred to\t the
\nearlier\t case of The Union of India v. Madan Gopal  Kabra<\/a>(2)
\nand held that the power to make retrospective legislation in
\ncases  relating to tax on sale of goods was the same  as  in
\nthe case of income tax.\t It was observed :\n<\/p>\n
\t      “The  power  of a legislature to enact  a\t law
\n\t      with reference to a topic entrusted to it, is,
\n\t      as already stated, unqualified subject only to
\n\t      any  limitation imposed by  the  Constitution.
\n\t      In  the exercise of such a power, it  will  be
\n\t      competent for the legislature to enact a\tlaw,
\n\t      which is either prospective or  retrospective.
\n\t      In  the Union of India v. Madan Gopal<\/a>  (supra)
\n\t      it  was held by this Court that the  power  to
\n\t      impose tax on income under entry 82 of List  I
\n\t      in  Schedule VII to the Constitution,  compre-
\n\t      hended  the  power to impose  income-tax\twith
\n\t      retrospective  operation\teven  for  a  period
\n\t      prior to the Constitution.  The position\twill
\n\t      be  the same as regards laws imposing  tax  on
\n\t      sale of goods.”\n<\/p><\/blockquote>\n
Mr.  Setalvad has referred to the fact that  the  appellants
\ndid not realise the sales tax on the sale of furnace oil  at
\nthe  rate  of 6 per cent during at least some  part  of\t the
\nperiod\tfor which retrospective operation had been given  to
\nthe  amending  Act.  It is contended that this\tfact  should
\nweigh with this Court in striking down the provisions of the
\namending  Act.\tThere is, in our opinion, no force  in\tthis
\ncontention.  The fact that a dealer is not in a position  to
\npass  on  the  sales  tax to  others  does  not\t affect\t the
\ncompetence of the legislature to enact a law imposing  sales
\ntax retrospectively because that is a matter of\t legislative
\npolicy.\t A similar argument was advanced in the case of\t M\/s
\nJ.  K.\tJute Mills Co. Ltd. (supra) and was repelled in\t the
\nfollowing words:\n<\/p>\n
\t      “And then it is argued that a sales tax  being
\n\t      an indirect tax, the seller who pays that\t tax
\n\t      has  the right to pass it on to the  consumer,
\n\t      that  a  law which imposes a  sales  tax\tlong
\n\t      after  the sales had taken place deprives\t him
\n\t      of  that right, that  retrospective  operation
\n\t      is,  in consequence, an incident\tinconsistent
\n\t      with  the true character of a sales  tax\tlaw,
\n\t      and that the Validation Act is,
\n\t      (1) [1962] 2 S.C.R. 1.\n<\/p><\/blockquote>\n
\t      (2) [1954] S.C.R. 451.\n<\/p><\/blockquote>\n
\t      64<\/span><\/p>\n
\t      therefore, not a law in respect of tax on\t the
\n\t      sale of goods- as recognized, and it is  ultra
\n\t      vires  entry  54.\t  We see no  force  in\tthis
\n\t      contention.  It is no doubt true that a  sales
\n\t      tax   is,\t according  to\t accepted   notions,
\n\t      intended\tto  be passed on to the\t buyer,\t and
\n\t      provisions  authorising  and  regulating\t the
\n\t      collection of sales tax by the seller from the
\n\t      purchaser\t are, a usual feature of  sales\t tax
\n\t      legislation.   But  it is-  not  an  essential
\n\t      characteristic of a sales tax that the  seller
\n\t      must  have  the  right to pass it\t on  to\t the
\n\t      consumer, nor is the power of the\t legislature
\n\t      to  impose a tax on sales conditional  on\t its
\n\t      making a provision for sellers to collect\t the
\n\t      tax from the purchasers.\tWhether a law should
\n\t      be   enacted,   imposing\ta  sales   tax,\t  or
\n\t      validating  the imposition of sales tax,\twhen
\n\t      the seller is not in a position to pass it  on
\n\t      to  the  consumer, is a matter of\t policy\t and
\n\t      does   not  affect  the  competence   of\t the
\n\t      legislature.   This question is  concluded  by
\n\t      the decision of this Court in The Tata Iron  &
\n\t      Steel Co. Ltd. v. The State of Bihar<\/a>(1).”-\n<\/p><\/blockquote>\n
In the case of Jaora Sugar Mills (P) Ltd. v. State of Madhya
\nPradesh and Others<\/a>(1) this Court dealt with the validity  of
\nsection 3 of the Sugar Cess (Validation) Act, 1961  (Central
\nAct  38\t of 1961).. The said section concerned the  levy  of
\nsugar-cane  cess  and  provided that  “all  cesses  imposed,
\nassessed  or  collected or purported to have  been  imposed,
\nassessed  or  collected\t under\tany  State  Act\t before\t the
\ncommencement  of  this\tAct, shall be deemed  to  have\tbeen
\nvalidly imposed, assessed or collectedin  accordance  with
\nlaw as if the provisions of the said Act andof
\nnotifications, orders and rules issued or made thereunder in
\nso  far\t as  such  provisions  relate  to  the\t imposition,
\nassessment  and collection of such cess had Ben included  in
\nand have been part of the section and this section had\tbeen
\nenforced  at all material times when such cess was  imposed,
\nassessed  or collected”.  Earlier the State Act under  which
\nthe sugar-cane cess had been levied was found to be  invalid
\non the ground of want of legislative competence to deal with
\ntopics covered by it.  The attack on the validity of section
\n3  of  that  Act  was repelled and  it\twas  held  that\t the
\nParliament could, in exercise of its legislative competence,
\npass  a law retrospectively validating the collections\tmade
\nunder the State statutes.  The present case is on a stronger
\nfooting\t from the point of view of the respondents’  because
\nwe  are dealing in this case with retrospective\t legislation
\nmade  by the same legislature which had enacted the  eariler
\nlaw.  We are,
\n(1) [1958] S.C.R. 1355.\n<\/p>\n
(2) [1966] 1 S.C.R. 523.\n<\/p>\n
\t\t\t     65<\/span><\/p>\n
therefore, of the opinion that the impugned provisions are a
\nvalid piece of legislation and do not contravene article  19
\nof the Constitution.\n<\/p>\n
The appeals consequently fail and are dismissed with costs.
\nOne hearing fee.\n<\/p>\n
S.C.\t\t\t\t\t Appeals dismissed.\n48Sup.C.I.\/73\n66<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Krishnamurthi & Co. Etc vs State Of Madras & Anr on 5 September, 1972 Equivalent citations: 1972 AIR 2455, 1973 SCR (2) 54 Author: H R Khanna Bench: Khanna, Hans Raj PETITIONER: M\/S. KRISHNAMURTHI & CO. ETC. Vs. RESPONDENT: STATE OF MADRAS & ANR. DATE OF JUDGMENT05\/09\/1972 BENCH: KHANNA, HANS […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-215793","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. Krishnamurthi & Co. 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