Commercial Tax Officer Vs. C.P.D. Computer Peripheral Devices Private Limited and ors. - Court Judgment

Excerpt:
- orderk. raviraja pandian, j.1. the review application is filed by the revenue to review the order dated july 24, 2006 made in w.p. no. 2816 of 2006. the said writ petition was filed by the first respondent/assessee against the order of the sales tax appellate tribunal made in t.a. no. 1320 of 2002 dated october 21, 2005 confirming the order of the lower authorities.2. before the division bench, it was contended by the assessee that the tamil nadu taxation special tribunal act (act no. 42 of 1992)(hereinafter called 'the 1992 act') was repealed by the tamil nadu taxation special tribunal (repeal) act, 2004 (act no. 34 of 2004)(hereinafter called 'the repeal act, 2004'). thereafter there is no forum for hearing the revision. hence, by way of judicial review, under article 226 of the.....

Judgment:
ORDER

K. Raviraja Pandian, J.

1. The review application is filed by the Revenue to review the order dated July 24, 2006 made in W.P. No. 2816 of 2006. The said writ petition was filed by the first respondent/assessee against the order of the Sales Tax Appellate Tribunal made in T.A. No. 1320 of 2002 dated October 21, 2005 confirming the order of the lower authorities.

2. Before the Division Bench, it was contended by the assessee that the Tamil Nadu Taxation Special Tribunal Act (Act No. 42 of 1992)(hereinafter called 'the 1992 Act') was repealed by the Tamil Nadu Taxation Special Tribunal (Repeal) Act, 2004 (Act No. 34 of 2004)(hereinafter called 'the repeal Act, 2004'). Thereafter there is no forum for hearing the revision. Hence, by way of judicial review, under Article 226 of the Constitution, writ petition is filed, which is maintainable. However, it was contended by the Revenue that in view of the repeal of the Special Tribunal Act, a revision would lie to the High Court under Section 38 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as 'the TNGST Act') as it stood prior to the 1992 Act. That contention was rejected by the Division Bench by observing as follows:.4. The effect of the abolition of the Special Tribunal has already been considered by a Division Bench of this Court in T.C. Nos. 37, 38 and 115 of 1998 (Mahashree Aruna Chemicals v. State of Tamil Nadu) by judgment dated April 1, 1999, which was followed by us in T.C. No. 38 of 2000, by judgment dated June 12, 2006 (between Tvl. Mhitraa Enterprises, 33, GVK Buildings, 10th Avenue, Chennai 83 and the State of Tamil Nadu).

5. Even though the orders sought to be challenged in those matters arose under the Central Sales Tax Act and here, the order sought to be challenged arises under the Tamil Nadu General Sales Tax Act, the issues raised are one and the same, namely, the effect of abolition of the Special Tribunal. In the judgment in T.C. No. 38 of 2000 dated June 12, 20061, it is held as follows:

After the amendment by Act 42 of 1992, the Tamil Nadu General Sales Tax Act does not permit the revision of orders passed in relation to the matters arising under the Central Sales Tax Act. The assessee's remedy, therefore, can only be under the provision of the Constitution to the extent permissible.

6. We are therefore of the considered opinion that the writ petition filed by the assessee challenging the order of the Tamil Nadu Sales Tax Appellate Tribunal is maintainable in law....

3. In order to have some more clarity of the above observation, we refer the earlier proceedings. During the period when the 1992 Act was in force, revisions have been filed before this Court in T.C. Nos. 37, 38 and 115 of 1998 (Mahashree Aruna Chemicals v. State of Tamil Nadu) under Section 38 of the TNGST Act in respect of Central sales tax assessment against the order of the Appellate Tribunal. While dismissing the case, the Division Bench observed that after amendment by 1992 Act, the TNGST Act does not permit the revision of order passed in relation to the matters arising under the Central Sales Tax Act. The said order was passed on April 1, 1999. However, the 1992 Act, which was in force from December 22, 1995, was repealed by Act No. 34 of 2004 on and from July 13, 2005. The Tax Case Revision No. 38 of 2000, though filed in the year 2000, came to be disposed of on June 12, 20061, which is well after the date of repeal of Act No. 42 of 1992. But Tax Case Revision No. 38 of 2000 has been disposed of by following a decision dated April 1, 1999 made in T.C. Nos. 37, 38 and 115 of 1998 Mahashree Aruna Chemicals v. State of Tamil Nadu, which was rendered when the 1992 Act was in force. The effect of repeal of the 1992 Act has not been considered and a decision rendered in T.C. No. 38 of 2000 Mhitraa Enterprises v. State of Tamil Nadu. Thus, the reasons stated in the order, which is now sought to be reviewed, is not reflecting the correct position of fact and law. Hence, the present review petition is filed by the Revenue.

4. The maintainability of the review petition has not been disputed by either of the parties, rather both the parties argued on the merits to have the impugned order reviewed on the merits with reference to the relevant statutory provisions, which are obtaining during the relevant period.

5. The TNGST Act, 1959 was enacted to consolidate and amend the laws relating to the levy of a general tax on the sale or purchase of goods in the State of Tamil Nadu. Various terms have been defined under Section 2 of the Act. Sections 3, 3A, 3B, 3C, 3D, 3E, etc., are charging sections. Section 4 provided for levy of tax in respect of declared goods. Section 7A provided for levy of purchase tax. Section 11 provided for assessment of tax. Section 12 provided for procedure to be followed in assessment proceedings. Section 16 provided for revision of assessment on escaped turnover.

6. As against the assessment/revision of assessment made under the abovesaid provisions, the TNGST Act provided for appeal under Sections 31 and 31A to the Appellate Assistant Commissioner and Appellate Deputy Commissioner. Sections 32 and 34 provided for suo motu power as against the order of assessment and appellate order, respectively, by the authorities concerned. As against the order passed under Sections 31 and 31A, a further appeal was provided under Section 36 to the Tamil Nadu Sales Tax Appellate Tribunal. Section 37 provided for a statutory appeal to the High Court against the order passed by the Joint Commissioner of Commercial Taxes under Section 34. Section 38 provided a revision to the High Court as against the order passed under Sub-section (2), (3A) or (6) of Section 36 by the Appellate Tribunal. Section 39 provided that the appeals or revisions under Sections 37 and 38 are to be heard by a Division Bench of the High Court.

7. While that being so, after advent of Tribunalism, and after the judgment of S.P. Sampath Kumar v. Union of India AIR 1987 SC 386, approving the establishment of Tribunal under Articles 323A and 323B of the Constitution of India, with a view to ensure effective implementation of the TNGST Act, 1959, in regard to assessment, levy and collection of sales tax under the said Act, the Government passed the Tamil Nadu General Sales Tax (Seventh Amendment) Act, 1986 (Act No. 58 of 1986) for establishment of Special Appellate Tribunal as the highest hierarchy. Under Section 3 of the said Act, changes were made by fiction in the TNG ST Act, as if the TNG ST Act should have the effect as per the changes brought under the Act. The important change brought by the said Act was that wherever the term 'High Court' occurred in the TNGST Act it shall have the effect as if 'Special Appellate Tribunal' had been substituted. We need not dilate as to the changes made by the said Act in detail for the reason that the said Act No. 58 of 1986 was not at all notified by the Government for its implementation. As the Act was not notified, appeals and revisions were filed before the High Court only.

8. In the year 1992, the Government of Tamil Nadu enacted an Act called 'the Tamil Nadu Taxation Special Tribunal Act, 1992' (Act No. 42 of 1992) under Article 323B of the Constitution of India for adjudication or trial by a Special Tribunal of any disputes, complaints or offences with respect to the levy, assessment, collection and enforcement of any tax under any specified State Act and the matters connected therewith or incidental thereto under Section 6 of the Act. The other provisions up to Section 23 provided for constitution of the Tamil Nadu Taxation Special Tribunal and its functions and powers. Section 24 of the said Act provided among other things that the TNGST Act shall have effect as if, wherever the words 'High Court' occur, the words 'Special Tribunal' had been substituted, as if Section 39 had been omitted. The three State Acts over which the Special Tribunal Act was made applicable are the TNGST Act, 1959, Tamil Nadu Additional Sales Tax Act, 1970 and Tamil Nadu Sales Tax (Surcharge) Act, 1971.

9. The Tamil Nadu Taxation Special Tribunal Act, 1992 came into effect on December 22, 1995 and the Special Tribunal started functioning thereafter. All the writ petitions and tax cases that were pending before the High Court during that period were transferred to the Special Tribunal. The writ petitions so transferred were taken on file by the Special Tribunal as transferred original petitions and likewise tax case (appeals) and (revisions) were taken on file as transferred appeals and revisions. Fresh original petitions were filed under Section 6 and appeals and revisions under Sections 37 and 38 of the TNGST Act were filed before the Special Tribunal. The Special Tribunal so constituted lived for a short period and the 1992 Act was repealed by Act 34 of 2004 in toto from July 13, 2005.

10. As per Section 3 of the Act No. 34 of 2004, all the matters and proceedings pending before the Special Tribunal as on July 13, 2005 shall stand transferred to the High Court and the High Court shall proceed with such matters or proceedings from the stage at which they are transferred. The original petitions which were pending before the Tribunal were transferred to the High Court and renumbered as writ petitions and disposed of by the High Court. However, when the tax case appeals and revisions, which were transferred, were taken up for disposal, as said earlier, the High Court in T.C. No. 38 of 2000 Mhitraa Enterprises v. State of Tamil Nadu rejected the same on the ground that Sections 37 and 38 of the TNGST Act, which were amended by 1992 Act to have the effect as 'Special Tribunal' has not been re-amended as 'High Court' and as such, no revision was maintainable before the High Court.

11. In this factual position, the question to be decided in this case is, as to whether the High Court has jurisdiction to entertain tax case appeal or revision under Sections 37 and 38 of the TNGST Act after repeal of the 1992 Act?

12. Mr. Raman, learned Additional Advocate-General appearing for the State Government and Mr. Arvind Datar, the learned Senior Counsel appearing for the Revenue Bar has contended that after the repeal of the 1992 Act, as against the order of the Appellate Tribunal made under Section 36 of the TNGST Act, a revision would lie to the High Court. Section 42 of 1992 Act did not have the effect of bringing about the textual amendment to Sections 37 and 38 of the TNGST Act, 1959. The expression 'as if' used in Section 42 of 1992 Act is in the nature of a legal fiction and substitution of the words 'Special Tribunal' for the words 'High Court' did not actually take place. The intention of the Legislature, in having designed Section 24 in the manner as it found, is clear that Sections 37, 38 and 39 of the TNGST Act should remain in operation, but for the purpose of giving effect to the 1992 Act, the said provision stood eclipsed. The intention of the Legislature could be gathered from the repealing Act No. 34 of 2004, which provided that on and from the date of commencement of the repeal of the 1992 Act, all the matters and proceedings pending before the Special Tribunal shall stand transferred to the High Court and the High Court shall proceed to deal with such matter or proceeding from the stage at which it is transferred or from any earlier stage or de novo as the High Court may deem fit.

13. Per contra, it was contended by Mr. C. Natarajan, learned Senior Counsel for the assessee that the 1992 Act cannot be regarded as a standalone legislation. Section 24 of the Act provided that the TNGST Act, 1959 would have the effect subject to the modification. The modification is by inserting the term 'Special Tribunal' in the place of 'High Court'. After such modification, the High Court has no power to exercise its jurisdiction under Sections 37 and 38. The Legislature has also understood the amendment clearly. So, they introduced Section 38A for constitution of Sales Tax Settlement Commission, where Section 39 was originally placed. After repeal of the 1992 Act, rightly, the Legislature re-introduced Section 39 by Act No. 11 of 2005 (Ordinance No. 4 of 2005). He contended that the words 'shall have the effect as if' imply substitution and not just for the purpose of interpretation taking clue from the case of State of Bombay v. Salat Pragji Karamsi reported in : 1957CriLJ884 . He further contended that no right of appeal can be conferred except by express words. Unless there is amendment to the provision, the High Court cannot exercise the appellate or revisional jurisdiction under Sections 37 and 38 of the TNGST Act. The learned Senior Counsel relied on a decision of the Supreme Court in the case of State of Bombay v. Salat Pragji Karamsi reported in : 1957CriLJ884 to support his contention.

14. We heard the argument of the learned Counsel on either side and perused the materials on record.

15. In order to resolve the issue in this case, it is necessary to refer Section 24 of the 1992 Act, which reads as follows:

24. Tamil Nadu Act 1 of 1959 as subsequently modified to have effect subject to modifications.- The Tamil Nadu General Sales Tax Act, 1959 shall have effect as if,-

(1) in Section 2, after Clause (n), the following Clause had been inserted, namely:

(nn) 'Special Tribunal' means the Special Tribunal as defined in Clause (i) of Section 2 of the Tamil Nadu Taxation Special Tribunal Act, 1992;

(2) in Section 16,-

(a) in Sub-section (5), for the words 'High Court', the words 'Special Tribunal' had been substituted;

(b) in Sub-section (6), for the words 'Special Appellate Tribunal', the words 'Special Tribunal' had been substituted;

(3) in Section 32, in Sub-section (2), for the words 'High Courf wherever they occur, the words 'Special Tribunal' had been substituted;

(4) in Section 34, in Sub-section (2), for the words 'High Court' wherever they occur, the words 'Special Tribunal' had been substituted;

(5) in Section 36, in Sub-section (3), for the words 'High Courf wherever they occur, the words 'Special Tribunal' had been substituted;

(6) after Section 36, the following Section had been inserted, namely:

36A. Tribunals under Article 323B of the Constitution for sales tax matters.- It is hereby declared that the assessing authority referred to in Clause (c) of Section 2, the Appellate Assistant Commissioner referred to in Section 31, the Deputy Commissioner referred to in Sections 31A, 32 and 33, the Joint Commissioner of Commercial Taxes referred to in Sections 34 and 35, the Appellate Tribunal appointed under Section 30 and the Special Tribunal referred to in Clause (nn) of Section 2 shall be the hierarchy of Tribunals for the purposes of Clause (3)(a) of Article 323B of the Constitution for adjudication or trial of any dispute or complaint with respect to levy, assessment, collection and enforcement of sales tax matters arising under this Act7;

(7)in Section 37,-

(a) including the marginal heading, for the words 'High Court' wherever they occur, the words 'Special Tribunal' had been substituted.

(b) in Sub-section (1), for the words 'Board of Revenue', the words 'Joint Commissioner of Commercial Taxes' had been substituted;

(8) in Section 38, including the marginal heading, for the words 'High Court' wherever they occur, the words 'Special Tribunal' had been substituted;

(9) after Section 38, the following Section shall be inserted, namely:

38A. Special powers of revision by Special Tribunal.-(1) Notwithstanding anything contained in this Act, the Special Tribunal may, of its own motion or on application, call for and examine the record of the Appellate Assistant Commissioner, the Deputy Commissioner, the Joint Commissioner of Commercial Taxes or the Appellate Tribunal in respect of any proceeding under this Act to 'satisfy itself as to the regularity of such proceeding or the correctness or legality or propriety of any decision passed or order made therein, and if, in any case, it appears to the Special Tribunal that any such decision or order should be modified, annulled, reversed, or remitted for reconsideration, it may pass orders accordingly:

Provided that every application to the Special Tribunal for the exercise of the powers under this Section shall be preferred within such period as may be prescribed:

Provided further that the Special Tribunal may admit an application after the expiration of the prescribed period if it is satisfied that the party concerned had sufficient cause for not presenting it within such period:

Provided also that this Section shall not apply to any proceeding of the Joint Commissioner of Commercial Taxes under Section 34, or the Appellate Tribunal under Section 36, in respect of which, appeal under Section 37, or revision under Section 38, respectively, lies to the Special Tribunal.

(2) No order prejudicial to any person shall be passed under subsection (1), unless such person has been given an opportunity of making his representations.

(3) Notwithstanding that an application has been preferred under Sub-section (1), the tax shall be paid in accordance with the order against which the application has been preferred:

Provided that the Special Tribunal may, in its discretion, give such directions as it thinks fit in regard to the payment of the tax before the disposal of the application, if the applicant furnishes sufficient security to its satisfaction, in such form and in such manner as may be prescribed;

(10) Section 39 had been omitted;

(11) in Section 52, for the words 'High Court' the words 'Special Tribunal' had been substituted.

16. From the above, it is amply clear that the above provision of the 1992 Act did not have the effect of bringing a direct amendment to the provisions of the Act textually. The words used 'as if' are having a great significance. In Volume I of Stroud's Judicial Dictionary, 4th Edition, 1971, the words 'as if' have been defined as follows:

On the construction of an 'as if Clause 'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real consequences and incidences which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs 'per Lord Asquith of Bishopstone in East End Dwelling Co. Ltd. v. Finsbury Borough Council [1952] AC 109.

17. The word 'text', in its dictionary meaning, means 'subject or theme'. When an enactment amends the text of another, it amends the subject or theme of it, though sometimes it may expunge unnecessary words without altering the subject vide Jethanand Betab v. The State of Delhi reported in : 1960CriLJ160 .

18. The amendments are usually made to a statute or to statutory provisions by means of substitution, insertion or omission. If such amendments are made, they can be regarded as textual amendments. For example, the Finance Act, 1999 made certain extensive amendments to the Income-tax Act. Section 3 of the Finance Act, 1999 provides for amendment to Section 2 of the Income-tax Act. That amendment has been incorporated by means of substitution. For example, in Section 2 of the Income-tax Act, (a) in Clause (1B), in Sub-clause (iii), for the words 'nine-tenths', the words 'three-fourths' shall be substituted with effect from 1st day of April, 2000, etc. Section 7 of the Finance Act, 1999 provides for insertion of Section 10C, which provides that after Section 10B of the Income-tax Act, the following Section shall be inserted, namely:

10C. Special provision in respect of certain industrial undertakings in North-Eastern Region.- (1) Subject to the provisions of this section, any profits and gains derived by an assessee from an industrial undertaking, which has begun or begins to manufacture or produce any Article or thing on or after the 1st day of April, 1998, in any Integrated Infrastructure Development Centre or Industrial Growth Centre located in the North-Eastern Region (hereafter in this Section referred to as 'the industrial undertaking') shall not be included in the total income of the assessee....

19. Section 89 of the Finance Act, 1999 provides for omission of Tenth Schedule of the Income-tax Act which reads that 'The Tenth Schedule of the Income-tax Act shall be omitted with effect from the 1st day of April, 2000'. The 1992 Act did not make any amendment to the TNGST Act as aforesaid.

20. The amendments could be brought about by amending the parent Act itself or through another legislation or by incorporation or by reference or by use of legal fiction. The Tamil Nadu General Sales Tax (Seventh Amendment) Act, 1986 was of the first type whereby amendments were sought to be introduced by means of an amendment to the parent Act, i.e., the General Sales Tax Act itself. However, the 1992 Act is an independent legislation. Section 24 of the Act falls partly as amendment through another independent legislation and partly amendment by incorporation and partly by use of legal fiction. There is actually no amendment carried out to the TNGST Act, but by fiction of use of the words 'as if', Sections 37 and 38 have to be read as though the power of appeal and revision is vested upon the Special Tribunal and imagine so for the purpose of 1992 Act. No actual or real substitution of the word was carried out in the TNGST Act, but was to be imagined as if substituted for giving effect to the object of the 1992 Act, viz., for adjudication of the dispute by the special forum, i.e., the Special Tribunal, in matters arising under the specified State Act. So long as the 1992 Act remains in force, the words 'High Court' in Sections 37 and 38 of the TNGST Act stands eclipsed even while the words High Court actually remained intact in the TNGST Act. As regards Section 39 of the TNGST Act, the words used 'as if' had been omitted. Section 39 of the TNGST Act has to be imagined as omitted for the purpose of working of the 1992 Act. There is no effacement of the provision in reality from the statute book. The TNGST Act has to be read as if the words 'High Court' were not found in Section 39 for the purpose of simultaneous and smooth working of both the TNGST Act and the 1992 Act. The words used for inserting Section 38A in Section 24(9) of the 1992 Act are 'shall be inserted'. This has the effect of amending the TNGST Act by introducing a new provision to the Act itself. Now that the entire 1992 Act has been repealed in its entirety, the shadow or eclipse over the provision of Sections 37 and 38 of the TNGST Act stands removed with the result that the provisions begin to operate with full force in respect of dispute arising under the TNGST Act and the appellate and revisional power of the High Court stands re-activated.

21. The intention of the Legislature is clear and unambiguous as it did not intend to disturb the existing machinery available under the TNGST Act and at the same time avoid the anomaly of the existing two parallel legislations to decide and adjudicate the dispute that has arisen under the three specified Acts. For the purpose of achieving the above intention, the Legislature has consciously employed different expressions. Yet another object could be seen in designing or moulding Section 24 in the manner as introduced. The machinery provisions such as appeals and revisions under the TNGST Act have been adopted by Parliament for matters arising under the Central Sales Tax Act, 1956 Act by virtue of Section 9(2) of the Central Sales Tax Act, 1956. Had the State Legislature directly amended the TNGST Act as done by Act No. 58 of 1986, the consequential effect would have been that the parties would have been left without any remedy in respect of matters arising under the Central Sales Tax Act as the Special Tribunal was vested with the jurisdiction to decide only dispute arising under the three specified State Acts. In other words, the anomalous situation would have set in, which the Legislature wanted to avoid as the State is the beneficiary of the revenue collection under the Central Sales Tax Act. The provisions of Sections 37, 38 and 39 of the TNGST Act as it stood prior to 1992, which remained intact and was construed and read in terms of Section 24 of Act No. 42 of 1992 has now become operative and functional with full effect immediately on repeal of Act No. 42 of 1992. The eclipse created by 1992 Act has been now cleared. As consequence thereof, Sections 37, 38 and 39, as they stood prior to coming into force of the Special Tribunal Act (Act No. 42 of 1992) have automatically revived.

22. So far as the reliance of the decision of the Supreme Court by the learned Senior Counsel appearing for the assessee in the case of State of Bombay v. Salat Pragji Karamsi reported in : 1957CriLJ884 is concerned, we are not able to accept the contention to take a different view. The relevant facts of the said case are that Kutch before 1948 was an Indian State. The Maharao of Kutch handed over the governance of the State to the Dominion of India on June 1, 1948, and thus it became a centrally administered area. On July 31, 1949, the then Central Government issued under Section 4 of the Extra Provincial Jurisdiction Act (Act XLVII of 1947), an order called the Kutch (Application of Laws) Order, 1949. Under Clause 3 of the said order certain enactments were applied to Kutch with effect from the date of the commencement of the order. One of the enactments was the Bombay Act. Clause 4 of the said order is that the authorities and territories mentioned in the first column of the table hereunder extracted were references to the authorities and territories, respectively, mentioned opposite thereto in the second column of the said table.

Table1. Provincial Government, Governor or Chief The Chief Commissioner ofControlling Revenue Authority Kutch.2. Government The General Government orthe Chief Commissioner, asthe context may require.3. High Court Court of the Judicial Com-missioner, Kutch.4. Provinces of India, any pronvince of India or Kutch or any part thereof,any part thereof5. The province or presidency of Bombay or Kutch or any part thereof.any part thereof

and under Clause 6 of the said order, any court may construe the provisions of any enactment, rule, regulation, general order or bye-law applied to Kutch or any part thereof by the said order, with such modifications not affecting the substance as may be necessary or proper in the circumstances. On August 1, 1949, Kutch became a Chief Commissioner's Province under the States Merger (Chief Commissioner's Provinces) Order, 1949. Clause 2(1)(c) of the said order provided that from the appointed day, the parts of States specified in the Second Schedule to the order shall be administered in all respects as if they were a Chief Commissioner's Province, and shall be known as the Chief Commissioner's Province of Kutch. The Second Schedule gives the parts of the pre-1947 Indian States which were to comprise the Chief Commissioners Province of Kutch. Under Clause 4 of the Order all laws which were in force including orders made under Section 4 of the Extra Provincial Jurisdiction Act of 1947, were to continue in force until replaced. On January 1, 1950, the Merged State's Laws Act (Act 59 of 1949), came into force. By the said Act certain Central Acts were extended to the province of Kutch including the General Clauses Act (Act 10 of 1897). On January 26,1950, the Constitution of India came into force and Adaptation of Laws Order, 1950 was promulgated the same day. In the said factual matrix, when the question arises whether the Bombay Act had been validly extended to and was in force in the whole of Kutch because of the Kutch (Application of Laws) Order, 1949, the Supreme Court has observed as follows:.In Clause 4 of the Kutch (Application of Laws) Order, 1949, the words used are 'shall be construed as if reference therein....' In our opinion all that these words mean is 'shall be read as' and if that is how these words are understood then wherever in the Bombay Act the words 'Provincial Government' are used they have to be read as the 'Chief Commissioner of Kutch'; the word 'Government' has to be read as the 'Chief Commissioner of Kutch'; and the province or the 'Presidency of Bombay' as 'Kutch or any part thereof. If the Bombay Act is so read, then at the time when the Constitution came into force the words Provincial Government or Government or Province or Presidency of Bombay were no longer in the Act which had become applicable to the State of Kutch. On the other hand, the words there must be taken to be 'Chief Commissioner of Kutch', and 'Kutch or any part thereof, respectively....

23. We are of the considered view that the facts of the cited case are totally different than the one under consideration before us. There was no repeal of any of the order or Act in the cited decision so as to contend that the Provincial Government or Government or Province or Presidency of Bombay have come into existence again. However, in the case on hand, by means of 1992 Act, certain changes were brought out to the effect that wherever the words 'High Court' come in the TNGST Act, they shall have the effect as if the words 'Special Tribunal' had been substituted, i.e., had been repealed with effect from July 13, 2005. As already stated, the construing state of affairs which is not there in the statute or which is not real by means of the change incorporated in 1992 has automatically vanished and the original provision that stood prior to coming into force of the 1992 Act came into existence, because of the repeal of 1992 Act.

24. The intention and the scope of the repeal has been considered by the Supreme Court in a catena of decisions and the Supreme Court has uniformly held that the general rule of construction is that the repeal of a repealing Act does not revive anything repealed thereby. But the operation of this rule is not absolute. It is subject to the appearance of a 'different intention' in the repealing statute. 'Repeal' connotes abrogation or obliteration of one statute by another, from the statute book as completely 'as if it had never been passed'; when an Act is repealed, 'it must be considered (except as to transactions past and closed) as if it had never existed'. Repeal is not a matter of mere form but one of substance, depending upon the intention of the Legislature. If the intention indicated expressly or by necessary implication in the subsequent statute was to abrogate or wipe out the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by superadding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. Broadly speaking, the principal object of a repealing and amending Act is to 'excise deed matter, prune off superfluities and reject clearly inconsistent enactments' vide India Tobacco Co. Ltd. v. Commercial Tax Officer : [1975]2SCR612 .

25. However, in the case on hand, the 1992 Act has been repealed in its entirety and it is a case of total repeal or pro tanto repeal. As per Section 3 of the Repealing Act No. 34 of 2004, on and from the date of commencement of the repealing Act, all the matters and proceedings pending before the Tamil Nadu Taxation Special Tribunal on the said date shall stand transferred to the High Court and the High Court shall proceed to deal with such matter or proceeding from the stage at which it is transferred or from any earlier stage or de novo as the High Court may deem fit.

26. From the above, the intention of the Legislature is clear that on the coming into force of the repeal of Act No. 42 of 1992, the original provisions that were eclipsed during the currency of 1992 Act have again come into operation, in the sense, the superimposition of the words 'Special Tribunal' for the words 'High Court', faded out by giving way to the words 'High Court' and the High Court has jurisdiction to entertain appeal or revision filed under Sections 37 and 38 of the Act. By means of re-introduction of Section 39, the same has to be considered by a Division Bench of the High Court.

27. For the foregoing reasons, we are of the considered view that on and from the date of repeal of 1992 Act, the High Court will have jurisdiction to entertain appeal or revision under Sections 37 and 38 of the TNGST Act, 1959, as the provisions re-emerged as they stood prior to the coming into force of the 1992 Act. The order, which is impugned in this review application, has to be set aside and accordingly the same is set aside. Of course, we are having some reservation about the reasoning of the order dated April 1, 1999 made in T.C. Nos. 37, 38 and 115 of 1981. But we are not expressing any opinion on it in view of the subsequent development of repeal of 1992 Act. However, there is no order as to costs.