Bpl Soft Energy Systems Ltd. and anr. Vs. State of Karnataka - Court Judgment

Excerpt:
- order 26, rule 10-a: [s. abdul nazeer,j] appointment of a commissioner for scientific investigation rejection of application challenge as to - suit filed by the plaintiff for partition and separate possession of the suit schedule properties - defendants 1 & 2 pleaded prior partition of the properties as per ex.d1.- denial of signature on ex.d1, by defendant no.3 - whether the case involves a question which requires scientific investigation which cannot be conducted before the court - held, admittedly, the suit filed by the plaintiff is for partition and separate possession of the suit schedule properties. it is the case of the plaintiff as also defendant no.3 that the properties are their ancestral properties. however, defendant nos. 1 and 2 contend that there is a prior partition of the properties as per the memorandum of partition ex.d1 dated 29.4.1999. defendant no.3 in her evidence has denied her signature on the said document.-whether the signature in dispute is the signature of defendant no.3 or not has to be answered by an expert after comparing the same with the admitted signature. this question has to be scientifically analyzed, examined and considered by an expert and then, he has to give his opinion after scientifically testing the same. the burden is on defendant nos. 1 and 2 to establish that the disputed signature is of defendant no.3.therefore, the court below was not right in rejecting the application filed by defendant nos. 1 and 2. order 26, rule 10-a r/w section 151: [n.k. patil,j] application under - allegation of the husband/respondent against his wife/petitioner that she is suffering from paranoid schizophrenia - divorce petition by the husband/respondent rejection of petitioners application seeking experts second opinion challenge as to held, it is crystal clear from the relevant provisions of the act that, paranoid schizophrenia is one of the grounds but not the only ground for divorce. the said disease should be exhaustively examined, proved and certified by expert doctors in the field of psychiatry. therefore, taking into account the paramount consideration and welfare of the children and also the seriousness of the alleged disease, alleged to have been suffered by the petitioner, the matter is required to be referred to the expert opinion at nimhans hospital, bangalore to have a second opinion. once that is done, the litigants would know their fate, where they stand and that would enable them to take right and conscious decision and get ready to face the consequences. impugned order is not justified and the same is liable to be set aside. - by the said notification, the state government has varied certain conditions prescribed under the notification dated june 19, 1991 (first notification). in the notification dated august 28, 1993 the state government has inserted clause (g) after clause (f) of the notification dated june 19, 1991. the said clause is as under :(g) to tiny/small-scale industrial units whose investment in fixed assets has taken place on or after 12th july, 1993 and to medium/ large scale industrial units which are in the process of establishment' and have not opted for availing concessions under this notification before 30th september, 1993.'a reading of the aforesaid clause would clearly indicate that the industrial units falling under clause (g) of the notification dated august 28, 1993 are also ineligible for exemption under the notification dated june 19, 1991. 18. the state government in exercise of the powers conferred on it under section 11-a of the karnataka tax on entry of goods ac if there is mere reference to a provision of one statute in another without incorporation, then unless a different intention clearly appears, section 8(1) of the general clauses act would apply and the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. 24. the law on the issue posed before us, in our opinion, is well-settled. time and again, the courts have observed that if there is mere reference to a provision of one statute in another without incorporation, then unless a different intention clearly appears, section 8(1) of the general clauses act would apply and the reference would be construed as reference to the provision as may be in force from time to time in the former statute.orderh.l. dattu, j.1. since common questions of law and facts are involved in all these petitions, they are clubbed together, heard and disposed of by this common order.2. these petitions are filed against the orders passed by the karnataka appellate tribunal, bangalore in sta no. 571 of 2001 and sta nos. 709, 329 and 330 of 2003 dated january 23, 2004. these petitions relate to the assessment years 1997-98, 1998-99 and 1999-2000 respectively.3. the facts stated by the petitioner are :the petitioner is a company incorporated under the provisions of the companies act, 1956. it is also a dealer registered under the provisions of the karnataka tax on entry of goods act, 1979 (hereinafter for the sake of brevity referred to as 'the act'). the petitioner is engaged in the manufacture of dry manganese dioxide batteries (dmd batteries). it has its manufacturing unit at somana-halli, maddur taluk, which falls under zone-ii of the notification issued by the state government. a reference to the notification will be made at the appropriate stage.4. before establishing its manufacturing unit at somanahalli, maddur taluk, the petitioner-company had approached the state government for grant of incentive and exemption under the provisions of the karnataka tax on entry of goods act, 1979 and also under the provisions of the karnataka sales tax act, 1957. pursuant to the request so made, the state government had issued a notification/government order in no. ci.92.spi. 1997 dated june 25, 1997, inter alia, granting exemption from payment of entry tax on raw materials and component parts for a period of six years from the date of commencement of commercial production. in the notification/government order, it was made clear that the petitioner-company should make an investment of a sum of rs. 111 crores, to claim benefit under the notification dated june 25, 1997.5. after obtaining the said exemption from the state government, the petitioner-company has established its manufacturing unit at somanahalli, maddur taluk. but for various reasons, the petitioner-company could not make investment of a sum of rs. 111 crores, as envisaged under the notification dated june 25, 1997. therefore, the petitioner-company was ineligible to claim the 'tax holiday' under the aforesaid notification.6. for the assessment year 1997-98, initially, the assessing authority had passed an order under the provisions of the entry tax act, granting exemption from payment of entry tax on raw materials, components and machinery parts brought into the local area (somanahalli) for use in the manufacture of dmd batteries. subsequently, the assessing authority had initiated reassessment proceedings and had passed the order and in that, has levied entry tax on the causing of entry of raw materials and components into the local area, on the ground that the petitioner-company could not have availed tax exemption, since it did not fulfil the primary condition stipulated in the notification dated june 25, 1997 and it was also held by the assessing authority that since government order/notification dated june 25, 1997 had been specifically issued granting entry tax exemption to the petitioner-company subject to fulfilling certain conditions, the petitioner-company is ineligible to seek exemption under general notification no. fd 11 cet 93(111) dated march 31, 1993. the assessing authority while framing the reassessment order under section 6 of the act, had also levied penalty under section 6(2) of the act.7. aggrieved by the aforesaid order passed by the assessing authority, the assessee had preferred the first appeal before the deputy commissioner of commercial taxes (appeals) in kteg.ap. 25/ 02-03. the first appellate authority by his order dated march 18, 2003 had partly allowed the appeal filed by the assessee.8. for the assessment years 1998-1999 and 1999-2000, the assessing authority had also passed reassessment orders under section 6(1) of the act and also had levied penalty under section 6(2) of the act. aggrieved by the said order, the assessee had filed first appeals before the first appellate authority in appeal nos. kteg. ap.24/02-03 (1998-1999) and 25/02-03 (1999-2000), who by his order dated january 20, 2003 had rejected the appeals so filed.9. the assessee aggrieved by the orders passed by the assessing authority under sections 6(1) and 6(2) of the act and also under section 5(5) of the act for the assessment years 1997-1998 to 1999-2000, had filed appeals before the karnataka appellate tribunal and they were registered as sta nos. 571 of 2001, 709, 329 and 330 of 2003. the tribunal by its common order dated january 23, 2004 had allowed sta no. 571 of 2001, and had partly allowed sta no. 709 of 2003 and had rejected sta nos. 329 and 330 of 2003 for the assessment years 1997-1998, 1998-1999 and 2000-2001. in its order, the tribunal has concluded that the assessee is not entitled to the benefit of the notification no. fd 11 cet 93(111) dated march 31, 1993; insertion of clause (g) to the explanation to kst notification no. fd 239 csl 90(1) dated june 19, 1991 will apply to notification no. fd 11 cet 93(111) dated march 31, 1993; no penalty can be imposed under section 5(5) of the act on the assesses-company for the relevant assessment years.10. the assessee being aggrieved by the aforesaid orders of the karnataka appellate tribunal, is before this court in these revision petitions filed under section 15-a of the act, on the ground that the appellate tribunal has erroneously decided the questions of law raised and canvassed before them.11. the questions of law raised for our consideration and decision in these revision petitions are :i. whether the insertion of clause (g) to the notification no. fd 239 csl 90(i) dated june 19, 1991 is applicable for constructing and understanding notification no. fd 11 cet 1993(iii) dated march 31, 1993?ii. whether the assessment order passed by the assessing authority is only for the purchase of raw materials for levy of entry tax and not taking into taxable goods brought to the local area determined under the assessment order originally is lawful?iii. whether the petitioner is entitled to benefit of entry tax exemption under notification no. fd 11 cet 93(iii) dated march 31, 1993?iv. whether the order passed by the tribunal is opposed to law?12. contentions canvassed are :the learned senior counsel sri naganand appearing for the petitioner-company contended that the notification issued by the state government in exercise of its powers under section 11a of the act, specifically provides for incorporation of conditions stipulated in the notification issued by the state government under the provisions of the karnataka sales tax act, 1957 dated june 19, 1991 and therefore, the conditions imposed in the earlier notification gets embedded into the later notification issued by the state government under the provisions of section 11-a of the act, and therefore, since it is legislation by incorporation, any amendments made subsequently cannot be read into the earlier notification, and if it is understood in any other manner, it leads to chaotic situation. according to the learned senior counsel, the disentitlement prescribed in clause (g) inserted in the explanation (iii) to the notification dated june 19, 1991 is applicable only to the said notification and not to the notification dated march 31, 1993 issued under the kteg act and therefore, the authorities under the act were not justified in applying clause (g) inserted in the explanation with effect from september 23, 1993 by notification dated august 28, 1993. alternatively, it is contended that the authorities under the act and the tribunal were not right in holding that the petitioner-company is ineligible to claim exemption from payment of entry tax on the raw materials and component parts brought into the local area in terms of the notification no. fd 11 cet 93(iii) dated march 31, 1993. the learned senior counsel also submits that, if two views are possible, the one view that is beneficial to the assessee requires to be considered and adopted and benefit should be given to the assessee. in support of these contentions, the learned senior counsel has relied on the observations made by the apex court in the case of state of maharashtra v. madhavrao damodar patil : [1968]3scr712 , mahindra and mahindra ltd. v. union of india : [1979]2scr1038 and gauri shankar gaur v. state of u.p. : air1994sc169 .13. while submitting that, if two views are possible, the one view which is beneficial to the assessee requires to be adopted, the learned senior counsel relies on the observation made by the apex court in the case of union of india v. onkar s. kanwar : 2002ecr275(sc) . these are the only submissions made by the learned senior counsel in aid of the relief sought in these revision petitions.14. per contra, sri anand, the learned government advocate appearing for the revenue would contend that, the notification issued by the state government under the provisions of the entry tax act dated march 31, 1993, makes a reference to the conditions and procedures prescribed in the notification no. fd 239 csl 90(i) dated june 19, 1991 issued under section 8-a of the sales tax act, which requires to be followed for taking the benefit of the notification issued under section 11-a of the entry tax act. therefore, the said explanation cannot be said as a legislation by way of incorporation and it is only a legislation by reference. in aid of his submissions, the learned government advocate relied on the observations made by the apex court in the case of state of madhya pradesh v. m. v. narasimhan : 1975crilj1639 , mariyappa v. state of karnataka : [1998]1scr988 and state of kerala v. attesee (agro industrial trading corporation) [1989] 72 stc 1.15. the notifications which are relevant for the purpose of the case are :the first notification that is issued by the state government is under the provisions of sub-section (1) of section 8-a of the karnataka sales tax act, 1957. the said notification is dated june 19, 1991 and is gazetted on june 21, 1991. the notification exempts the tax payable in respect of the goods manufactured and sold by an industrial unit mentioned in column no. 2 and located in the zones specified in column no. 3 of the table appended to the notification. the notification also provides the extent of sales tax exemption and the period of exemption to such industrial units.16. explanation i appended to the said notification defines the meaning of the expressions 'tiny industrial unit', 'small-scale industrial unit', 'medium scale industrial unit' and 'large scale industrial unit', for the purpose of the notification.explanation ii appended to the said notification provides conditions which require to be complied with by an industrial unit for claiming exemption from payment of tax under the notification.explanation iii provides that industrial units falling under category (a) to (f) of the explanation are not eligible for claiming exemption under the notification.17. the state government in exercise of its powers conferred by sub-section (3) of section 8-a of the karnataka sales tax act has issued another notification dated august 28, 1993 and the same was gazetted on september 23, 1993. the notification has been given effect to from the date of its publication in the karnataka gazette. by the said notification, the state government has varied certain conditions prescribed under the notification dated june 19, 1991 (first notification).in the notification dated august 28, 1993 the state government has inserted clause (g) after clause (f) of the notification dated june 19, 1991. the said clause is as under :'(g) to tiny/small-scale industrial units whose investment in fixed assets has taken place on or after 12th july, 1993 and to medium/ large scale industrial units which are in the process of establishment' and have not opted for availing concessions under this notification before 30th september, 1993.'a reading of the aforesaid clause would clearly indicate that the industrial units falling under clause (g) of the notification dated august 28, 1993 are also ineligible for exemption under the notification dated june 19, 1991.18. the state government in exercise of the powers conferred on it under section 11-a of the karnataka tax on entry of goods act, 1979, has issued notification no. fd 11 cet 93(iii) dated march 31, 1993 exempting with effect from april 1, 1993, the tax payable under the provisions of the entry tax act on the entry of raw materials, component parts and inputs and machinery into a local area for the use in the manufacture of an intermediate or finished product by the new industrial units mentioned in column no. 2 and located in the zones notified in column no. 3 of the table appended to the notification. explanations (1), (2) and (3) are appended to the notification providing for the meaning of the expressions 'a new industrial unit', and 'industrial units' which are disentitled for claiming benefit under the notification, and the procedure for claiming benefit under the notification.19. explanation (1) to the notification envisages that for the purpose of understanding the meaning of the expression 'a new industrial unit', the meaning assigned in the notification issued under sub-section (1) of section 8-a of the karnataka sales tax act, 1957 dated june 19, 1991 requires to be followed.explanation (2) to the notification says that the notification dated march 31, 1993 issued under the provisions of the entry tax act shall not apply to a unit to which the provisions of notification dated june 19, 1991 issued under sub-section (1) of section 8-a of the act is not made applicable.explanation (3) to the notification provides for the procedure for claiming exemption under the notification. it is stated that the procedure prescribed in the notification dated june 19, 1991 shall be mutatis mutandis would apply.20. in our opinion, before considering the contentions canvassed by the learned counsel for the parties, it would be useful to notice the gist of the case laws on which reliance was placed by the learned counsel.where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter. the effect of incorporation is as if provision incorporated were written out in the incorporating statute and were a part of it. legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter, there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute.if there is mere reference to a provision of one statute in another without incorporation, then unless a different intention clearly appears, section 8(1) of the general clauses act would apply and the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. but if a provision of one statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the later statute.21. now the question before us is to find out to which category the present case belongs to?22. the facts are not in dispute before us. the questions that require to be considered and decided by this court are, whether the explanation appended to the notification issued by the state government under the provisions of the entry tax act is legislation by incorporation or legislation by citation? and whether the authorities under the act and the tribunal were justified in concluding that in view of insertion of clause (g) in the notification dated june 19, 1991 by notification dated august 28, 1993 with effect from september 23, 1993 the petitioner-company is disentitled to claim benefit under the notification no. fd 11 cet 93(111) dated march 31, 1993 issued under section 11-a of the entry tax act?23. the state government in exercise of the powers conferred on it by section 11-a of the karnataka tax on entry of goods act, 1979, has issued another notification dated march 31, 1993 with effect from april 1, 1993, exempting the tax payable under the act on the entry of raw materials, component parts and inputs and machinery and its parts into a local area for use in the manufacture of an intermediate or finished product by a new industrial unit mentioned in column (2) of the notification located in the zones specified in column (3) of the notification. explanations (1) to (3) are provided in the notification. these explanations make a reference to the notification no. fd 239 csl 90(i) dated june 19, 1991 issued by the state government under section 8-a of the karnataka sales tax act, 1957, for the purpose of understanding the meaning of the expression 'a new industrial unit'; to exclude certain industrial units from the purview of the notification; and lastly, the procedure for claiming exemption under the notification.24. the law on the issue posed before us, in our opinion, is well-settled. time and again, the courts have observed that if there is mere reference to a provision of one statute in another without incorporation, then unless a different intention clearly appears, section 8(1) of the general clauses act would apply and the reference would be construed as reference to the provision as may be in force from time to time in the former statute. but if a provision of one statute is incorporated in another, subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the later statute.25. the legislation by incorporation and legislation by reference is explained by the apex court in the case of gauri shankar gaur v. state of u.p. : air1994sc169 . in that, the court has stated :'31. it would thus be clear that in case of legislation by incorporation the former act becomes an integral part and parcel of the later act, as if it was written with ink and printed in the later act. its validity including the provisions incorporated thereunder would be judged with reference to the power of the legislature enacting the later act. it is not by reference. logically when provisions in the former act were repealed or amended, they do not, unless expressly made applicable to the subsequent act, be deemed to be incorporated in it. the later act is totally unaffected by any amendment or repeal. it would be subject to the exceptions enumerated hereinbefore. the statute being distinct and different each is to be judged with reference to its own source that emerges from its scheme, language employed and purpose it seeks to achieve.32. if a later act merely makes a reference to the earlier act or existing law, it is only by way of reference and all amendments, repeals, new law subsequently made will have effect unless its operation is saved by section 8(1) of the general clauses act or void under article 254 of the constitution.'26. the supreme court in the case of state of maharashtra v. sant joginder singh kishan singh : [1995]2scr242 , has observed that 'the legislation by reference is different from the legislation by incorporation. if the state legislature adopts the central act, then amendments made subsequently to the central act becomes applicable and that does not happen when legislation is by incorporation of specific provisions of the central act'.27. in the present case, the state government while issuing notification dated march 31, 1993 under section 11-a of the entry tax act, has adopted by citation the meaning of the expression 'industrial area', 'the industrial units which do not fall under the purview of the notification', 'procedure for claiming exemption from payment of entry tax', as envisaged in the notification no. fd 239 csl 90(1) dated june 19, 1991. the state government subsequently in exercise of its powers under sub-section (3) of section 8-a of the kst act has varied with effect from the date of notification, the notification dated june 19, 1991 by inserting clause (g) to the earlier notification after clause (f) of the earlier notification. by this clause, the state government has included one more category of industrial units, which are not eligible for exemption from payment of sales tax. they are, tiny/small-scale industrial units, whose investment in fixed assets has taken place on or after july 12, 1993 and the medium/ large scale industrial units, which are in the process of establishment and have not opted for availing concessions under this notification before september 30, 1993. this is an amendment made to the earlier notification. since the state government has adopted the earlier notification dated june 19, 1991 while issuing notification under section 11-a of the kteg act, then the amendments made to the earlier notification becomes applicable, and this would not have happened, if it were to be legislation by incorporation. accordingly, in our view, the tribunal was justified in rejecting the request of the assesses-company to grant benefit under notification no. fd 11 cet 93(iii) dated march 31, 1993, since petitioner-company admittedly a large scale industrial unit, but had not opted for availing concession under this notification before september 30, 1993.28. the other contention canvassed by sri naganand, learned senior counsel is that, when there are two views, the one view which is beneficial to the assessee requires to be adopted. this legal issue need not be considered by us in the facts and circumstances of the present case, since in our view, there is only one view that is possible in understanding the purpose, object and construction of the notifications cited before us.29. sri naganand, learned senior counsel, would also submit, that, if clause (g) of the notification is put against the petitioner-company, it would lead to absurd results. therefore, a harmonious construction requires to be adopted in considering the notifications referred by us in earlier paragraphs of our order. in our opinion, in view of our answer to the primary legal issue canvassed by the learned senior counsel for petitioner-company, this submission pales into insignificance.30. in the result, in our view, the tribunal was justified in conforming the order passed by the authorities under the act. accordingly, petitions are rejected and in the facts and circumstances of the case, parties are directed to bear their own costs. ordered accordingly.

Judgment:
ORDER

H.L. Dattu, J.

1. Since common questions of law and facts are involved in all these petitions, they are clubbed together, heard and disposed of by this common order.

2. These petitions are filed against the orders passed by the Karnataka Appellate Tribunal, Bangalore in STA No. 571 of 2001 and STA Nos. 709, 329 and 330 of 2003 dated January 23, 2004. These petitions relate to the assessment years 1997-98, 1998-99 and 1999-2000 respectively.

3. The facts stated by the petitioner are :

The petitioner is a company incorporated under the provisions of the Companies Act, 1956. It is also a dealer registered under the provisions of the Karnataka Tax on Entry of Goods Act, 1979 (hereinafter for the sake of brevity referred to as 'the Act'). The petitioner is engaged in the manufacture of dry manganese dioxide batteries (DMD batteries). It has its manufacturing unit at Somana-halli, Maddur Taluk, which falls under Zone-II of the notification issued by the State Government. A reference to the notification will be made at the appropriate stage.

4. Before establishing its manufacturing unit at Somanahalli, Maddur Taluk, the petitioner-company had approached the State Government for grant of incentive and exemption under the provisions of the Karnataka Tax on Entry of Goods Act, 1979 and also under the provisions of the Karnataka Sales Tax Act, 1957. Pursuant to the request so made, the State Government had issued a Notification/Government Order in No. CI.92.SPI. 1997 dated June 25, 1997, inter alia, granting exemption from payment of entry tax on raw materials and component parts for a period of six years from the date of commencement of commercial production. In the notification/Government order, it was made clear that the petitioner-company should make an investment of a sum of Rs. 111 crores, to claim benefit under the notification dated June 25, 1997.

5. After obtaining the said exemption from the State Government, the petitioner-company has established its manufacturing unit at Somanahalli, Maddur Taluk. But for various reasons, the petitioner-company could not make investment of a sum of Rs. 111 crores, as envisaged under the notification dated June 25, 1997. Therefore, the petitioner-company was ineligible to claim the 'tax holiday' under the aforesaid notification.

6. For the assessment year 1997-98, initially, the assessing authority had passed an order under the provisions of the Entry Tax Act, granting exemption from payment of entry tax on raw materials, components and machinery parts brought into the local area (Somanahalli) for use in the manufacture of DMD batteries. Subsequently, the assessing authority had initiated reassessment proceedings and had passed the order and in that, has levied entry tax on the causing of entry of raw materials and components into the local area, on the ground that the petitioner-company could not have availed tax exemption, since it did not fulfil the primary condition stipulated in the notification dated June 25, 1997 and it was also held by the assessing authority that since Government order/notification dated June 25, 1997 had been specifically issued granting entry tax exemption to the petitioner-company subject to fulfilling certain conditions, the petitioner-company is ineligible to seek exemption under general notification No. FD 11 CET 93(111) dated March 31, 1993. The assessing authority while framing the reassessment order under Section 6 of the Act, had also levied penalty under Section 6(2) of the Act.

7. Aggrieved by the aforesaid order passed by the assessing authority, the assessee had preferred the first appeal before the Deputy Commissioner of Commercial Taxes (Appeals) in KTEG.AP. 25/ 02-03. The first appellate authority by his order dated March 18, 2003 had partly allowed the appeal filed by the assessee.

8. For the assessment years 1998-1999 and 1999-2000, the assessing authority had also passed reassessment orders under Section 6(1) of the Act and also had levied penalty under Section 6(2) of the Act. Aggrieved by the said order, the assessee had filed first appeals before the first appellate authority in Appeal Nos. KTEG. AP.24/02-03 (1998-1999) and 25/02-03 (1999-2000), who by his order dated January 20, 2003 had rejected the appeals so filed.

9. The assessee aggrieved by the orders passed by the assessing authority under Sections 6(1) and 6(2) of the Act and also under Section 5(5) of the Act for the assessment years 1997-1998 to 1999-2000, had filed appeals before the Karnataka Appellate Tribunal and they were registered as STA Nos. 571 of 2001, 709, 329 and 330 of 2003. The Tribunal by its common order dated January 23, 2004 had allowed STA No. 571 of 2001, and had partly allowed STA No. 709 of 2003 and had rejected STA Nos. 329 and 330 of 2003 for the assessment years 1997-1998, 1998-1999 and 2000-2001. In its order, the Tribunal has concluded that the assessee is not entitled to the benefit of the Notification No. FD 11 CET 93(111) dated March 31, 1993; insertion of Clause (g) to the Explanation to KST Notification No. FD 239 CSL 90(1) dated June 19, 1991 will apply to Notification No. FD 11 CET 93(111) dated March 31, 1993; no penalty can be imposed under Section 5(5) of the Act on the assesses-company for the relevant assessment years.

10. The assessee being aggrieved by the aforesaid orders of the Karnataka Appellate Tribunal, is before this Court in these revision petitions filed under Section 15-A of the Act, on the ground that the Appellate Tribunal has erroneously decided the questions of law raised and canvassed before them.

11. The questions of law raised for our consideration and decision in these revision petitions are :

I. Whether the insertion of Clause (g) to the Notification No. FD 239 CSL 90(I) dated June 19, 1991 is applicable for constructing and understanding Notification No. FD 11 CET 1993(III) dated March 31, 1993?

II. Whether the assessment order passed by the assessing authority is only for the purchase of raw materials for levy of entry tax and not taking into taxable goods brought to the local area determined under the assessment order originally is lawful?

III. Whether the petitioner is entitled to benefit of entry tax exemption under Notification No. FD 11 CET 93(III) dated March 31, 1993?

IV. Whether the order passed by the Tribunal is opposed to law?

12. Contentions canvassed are :

The learned Senior Counsel Sri Naganand appearing for the petitioner-company contended that the notification issued by the State Government in exercise of its powers under Section 11A of the Act, specifically provides for incorporation of conditions stipulated in the notification issued by the State Government under the provisions of the Karnataka Sales Tax Act, 1957 dated June 19, 1991 and therefore, the conditions imposed in the earlier notification gets embedded into the later notification issued by the State Government under the provisions of Section 11-A of the Act, and therefore, since it is legislation by incorporation, any amendments made subsequently cannot be read into the earlier notification, and if it is understood in any other manner, it leads to chaotic situation. According to the learned Senior Counsel, the disentitlement prescribed in Clause (g) inserted in the Explanation (III) to the notification dated June 19, 1991 is applicable only to the said notification and not to the notification dated March 31, 1993 issued under the KTEG Act and therefore, the authorities under the Act were not justified in applying Clause (g) inserted in the Explanation with effect from September 23, 1993 by notification dated August 28, 1993. Alternatively, it is contended that the authorities under the Act and the Tribunal were not right in holding that the petitioner-company is ineligible to claim exemption from payment of entry tax on the raw materials and component parts brought into the local area in terms of the Notification No. FD 11 CET 93(III) dated March 31, 1993. The learned Senior Counsel also submits that, if two views are possible, the one view that is beneficial to the assessee requires to be considered and adopted and benefit should be given to the assessee. In support of these contentions, the learned Senior Counsel has relied on the observations made by the apex Court in the case of State of Maharashtra v. Madhavrao Damodar Patil : [1968]3SCR712 , Mahindra and Mahindra Ltd. v. Union of India : [1979]2SCR1038 and Gauri Shankar Gaur v. State of U.P. : AIR1994SC169 .

13. While submitting that, if two views are possible, the one view which is beneficial to the assessee requires to be adopted, the learned Senior Counsel relies on the observation made by the apex Court in the case of Union of India v. Onkar S. Kanwar : 2002ECR275(SC) . These are the only submissions made by the learned Senior Counsel in aid of the relief sought in these revision petitions.

14. Per contra, Sri Anand, the learned Government Advocate appearing for the Revenue would contend that, the notification issued by the State Government under the provisions of the Entry Tax Act dated March 31, 1993, makes a reference to the conditions and procedures prescribed in the Notification No. FD 239 CSL 90(I) dated June 19, 1991 issued under Section 8-A of the Sales Tax Act, which requires to be followed for taking the benefit of the notification issued under Section 11-A of the Entry Tax Act. Therefore, the said Explanation cannot be said as a legislation by way of incorporation and it is only a legislation by reference. In aid of his submissions, the learned Government Advocate relied on the observations made by the apex Court in the case of State of Madhya Pradesh v. M. V. Narasimhan : 1975CriLJ1639 , Mariyappa v. State of Karnataka : [1998]1SCR988 and State of Kerala v. Attesee (Agro Industrial Trading Corporation) [1989] 72 STC 1.

15. The notifications which are relevant for the purpose of the case are :

The first notification that is issued by the State Government is under the provisions of Sub-section (1) of Section 8-A of the Karnataka Sales Tax Act, 1957. The said notification is dated June 19, 1991 and is gazetted on June 21, 1991. The notification exempts the tax payable in respect of the goods manufactured and sold by an industrial unit mentioned in column No. 2 and located in the zones specified in column No. 3 of the table appended to the notification. The notification also provides the extent of sales tax exemption and the period of exemption to such industrial units.

16. Explanation I appended to the said notification defines the meaning of the expressions 'tiny industrial unit', 'small-scale industrial unit', 'medium scale industrial unit' and 'large scale industrial unit', for the purpose of the notification.

Explanation II appended to the said notification provides conditions which require to be complied with by an industrial unit for claiming exemption from payment of tax under the notification.

Explanation III provides that industrial units falling under category (a) to (f) of the Explanation are not eligible for claiming exemption under the notification.

17. The State Government in exercise of its powers conferred by Sub-section (3) of Section 8-A of the Karnataka Sales Tax Act has issued another notification dated August 28, 1993 and the same was gazetted on September 23, 1993. The notification has been given effect to from the date of its publication in the Karnataka Gazette. By the said notification, the State Government has varied certain conditions prescribed under the notification dated June 19, 1991 (first notification).

In the Notification dated August 28, 1993 the State Government has inserted Clause (g) after Clause (f) of the notification dated June 19, 1991. The said Clause is as under :

'(g) to tiny/small-scale industrial units whose investment in fixed assets has taken place on or after 12th July, 1993 and to medium/ large scale industrial units which are in the process of establishment' and have not opted for availing concessions under this notification before 30th September, 1993.'

A reading of the aforesaid Clause would clearly indicate that the industrial units falling under Clause (g) of the notification dated August 28, 1993 are also ineligible for exemption under the notification dated June 19, 1991.

18. The State Government in exercise of the powers conferred on it under Section 11-A of the Karnataka Tax on Entry of Goods Act, 1979, has issued Notification No. FD 11 CET 93(III) dated March 31, 1993 exempting with effect from April 1, 1993, the tax payable under the provisions of the Entry Tax Act on the entry of raw materials, component parts and inputs and machinery into a local area for the use in the manufacture of an intermediate or finished product by the new industrial units mentioned in column No. 2 and located in the zones notified in column No. 3 of the table appended to the notification. Explanations (1), (2) and (3) are appended to the notification providing for the meaning of the expressions 'a new industrial unit', and 'industrial units' which are disentitled for claiming benefit under the notification, and the procedure for claiming benefit under the notification.

19. Explanation (1) to the notification envisages that for the purpose of understanding the meaning of the expression 'a new industrial unit', the meaning assigned in the notification issued under Sub-section (1) of Section 8-A of the Karnataka Sales Tax Act, 1957 dated June 19, 1991 requires to be followed.

Explanation (2) to the notification says that the notification dated March 31, 1993 issued under the provisions of the Entry Tax Act shall not apply to a unit to which the provisions of notification dated June 19, 1991 issued under Sub-section (1) of Section 8-A of the Act is not made applicable.

Explanation (3) to the notification provides for the procedure for claiming exemption under the notification. It is stated that the procedure prescribed in the notification dated June 19, 1991 shall be mutatis mutandis would apply.

20. In our opinion, before considering the contentions canvassed by the learned Counsel for the parties, it would be useful to notice the gist of the case laws on which reliance was placed by the learned Counsel.

Where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter. The effect of incorporation is as if provision incorporated were written out in the incorporating statute and were a part of it. Legislation by incorporation is a common legislative device employed by the Legislature, where the Legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter, there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute.

If there is mere reference to a provision of one statute in another without incorporation, then unless a different intention clearly appears, Section 8(1) of the General Clauses Act would apply and the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. But if a provision of one statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the later statute.

21. Now the question before us is to find out to which category the present case belongs to?

22. The facts are not in dispute before us. The questions that require to be considered and decided by this Court are, whether the Explanation appended to the notification issued by the State Government under the provisions of the Entry Tax Act is legislation by incorporation or legislation by citation? And whether the authorities under the Act and the Tribunal were justified in concluding that in view of insertion of Clause (g) in the notification dated June 19, 1991 by notification dated August 28, 1993 with effect from September 23, 1993 the petitioner-company is disentitled to claim benefit under the Notification No. FD 11 CET 93(111) dated March 31, 1993 issued under Section 11-A of the Entry Tax Act?

23. The State Government in exercise of the powers conferred on it by Section 11-A of the Karnataka Tax on Entry of Goods Act, 1979, has issued another notification dated March 31, 1993 with effect from April 1, 1993, exempting the tax payable under the Act on the entry of raw materials, component parts and inputs and machinery and its parts into a local area for use in the manufacture of an intermediate or finished product by a new industrial unit mentioned in column (2) of the notification located in the zones specified in column (3) of the notification. Explanations (1) to (3) are provided in the notification. These Explanations make a reference to the Notification No. FD 239 CSL 90(I) dated June 19, 1991 issued by the State Government under Section 8-A of the Karnataka Sales Tax Act, 1957, for the purpose of understanding the meaning of the expression 'a new industrial unit'; to exclude certain industrial units from the purview of the notification; and lastly, the procedure for claiming exemption under the notification.

24. The law on the issue posed before us, in our opinion, is well-settled. Time and again, the courts have observed that if there is mere reference to a provision of one statute in another without incorporation, then unless a different intention clearly appears, Section 8(1) of the General Clauses Act would apply and the reference would be construed as reference to the provision as may be in force from time to time in the former statute. But if a provision of one statute is incorporated in another, subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the later statute.

25. The legislation by incorporation and legislation by reference is explained by the apex Court in the case of Gauri Shankar Gaur v. State of U.P. : AIR1994SC169 . In that, the court has stated :

'31. It would thus be clear that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of the Legislature enacting the later Act. It is not by reference. Logically when provisions in the former Act were repealed or amended, they do not, unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act is totally unaffected by any amendment or repeal. It would be subject to the exceptions enumerated hereinbefore. The statute being distinct and different each is to be judged with reference to its own source that emerges from its scheme, language employed and purpose it seeks to achieve.

32. If a later Act merely makes a reference to the earlier Act or existing law, it is only by way of reference and all amendments, repeals, new law subsequently made will have effect unless its operation is saved by Section 8(1) of the General Clauses Act or void under Article 254 of the Constitution.'

26. The Supreme Court in the case of State of Maharashtra v. Sant Joginder Singh Kishan Singh : [1995]2SCR242 , has observed that 'the legislation by reference is different from the legislation by incorporation. If the State Legislature adopts the Central Act, then amendments made subsequently to the Central Act becomes applicable and that does not happen when legislation is by incorporation of specific provisions of the Central Act'.

27. In the present case, the State Government while issuing notification dated March 31, 1993 under Section 11-A of the Entry Tax Act, has adopted by citation the meaning of the expression 'industrial area', 'the industrial units which do not fall under the purview of the notification', 'procedure for claiming exemption from payment of entry tax', as envisaged in the Notification No. FD 239 CSL 90(1) dated June 19, 1991. The State Government subsequently in exercise of its powers under sub-section (3) of Section 8-A of the KST Act has varied with effect from the date of notification, the notification dated June 19, 1991 by inserting Clause (g) to the earlier notification after Clause (f) of the earlier notification. By this clause, the State Government has included one more category of industrial units, which are not eligible for exemption from payment of sales tax. They are, tiny/small-scale industrial units, whose investment in fixed assets has taken place on or after July 12, 1993 and the medium/ large scale industrial units, which are in the process of establishment and have not opted for availing concessions under this notification before September 30, 1993. This is an amendment made to the earlier notification. Since the State Government has adopted the earlier notification dated June 19, 1991 while issuing notification under Section 11-A of the KTEG Act, then the amendments made to the earlier notification becomes applicable, and this would not have happened, if it were to be legislation by incorporation. Accordingly, in our view, the Tribunal was justified in rejecting the request of the assesses-company to grant benefit under Notification No. FD 11 CET 93(III) dated March 31, 1993, since petitioner-company admittedly a large scale industrial unit, but had not opted for availing concession under this notification before September 30, 1993.

28. The other contention canvassed by Sri Naganand, learned Senior Counsel is that, when there are two views, the one view which is beneficial to the assessee requires to be adopted. This legal issue need not be considered by us in the facts and circumstances of the present case, since in our view, there is only one view that is possible in understanding the purpose, object and construction of the notifications cited before us.

29. Sri Naganand, learned Senior Counsel, would also submit, that, if Clause (g) of the notification is put against the petitioner-company, it would lead to absurd results. Therefore, a harmonious construction requires to be adopted in considering the notifications referred by us in earlier paragraphs of our order. In our opinion, in view of our answer to the primary legal issue canvassed by the learned Senior Counsel for petitioner-company, this submission pales into insignificance.

30. In the result, in our view, the Tribunal was justified in conforming the order passed by the authorities under the Act. Accordingly, petitions are rejected and in the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.