Sun Paper Mills Ltd. Vs Union of India and others

Nainar Sundaram, J.@mdashThese writ appeals are directed against the orders of the learned single Judge in a batch of writ petitions, where the appellant herein, who was the petitioner in the writ petitions, questioned the notices issued by the third respondent for revision of the assessments for the years 1975-76 to 1981-82. The respondents herein were the respondents in the writ petitions. It is better, we refer to the parties as per their nomenclature in the writ petitions. The petitioner is a company incorporated under the Companies Act, 1956 and is carrying on business of manufacture and sale of newsprint paper to various newspaper concerns throughout India for the past about three decades. Suffice it to state at this juncture that the petitioner for all these assessment years was assessed to sales tax in respect of sales of white printing paper to the newspaper concerns on the basis that the concession notification dated 12th November, 1965, published in the Fort St. George Gazette dated 24th November, 1965, hereinafter referred to as "the concession notification" (the details of which we will have occasion to refer to later because there is a controversy built over the said details) applied. By the notices, impugned in the writ petitions, there is a move to reopen the assessments on the ground that the concession notification had been withdrawn by the withdrawal notification dated 20th March, 1967, published in the Fort St. George Gazette, dated 22nd March, 1967. The said notification hereinafter referred to as "the withdrawal notification". The learned single Judge, who dealt with the writ petitions, dismissed them, opining that the petitioner can take objections by filing comprehensive replies to the impugned notices and even otherwise on examining the materials on record there is no infirmity in the impugned notices. The learned single Judge dealt with the matter very briefly in the following manner :

"The point that arises for determination in these petitions is whether the relief prayed for in these writ petitions can be granted.

Even at the outset, it has to be stated that when there is proper remedy available for the petitioner to put forth its objections by way of reply to the notices of revisions issued by the third respondent, the petitioner has come forward with these writ petitions. Whatever it wants to say by way of objections, it can be done by filing comprehensive replies to the notices. On the other hand, and far from doing so, to invoke the extraordinary jurisdiction of this Court under article 226 of the Constitution, is not called for. Anyhow, these petitions have been admitted. And this Court, at this stage, on examining the material on record, does not find any infirmity in the notices issued by the third respondent, since they have been issued only under the relevant provisions of the Act. For this reason, all these writ petitions are dismissed."

As noted earlier, these writ appeals are directed against the orders of the learned single Judge. Dr. D. Pal, the learned counsel for the petitioner, canvassed before us two points, coveting interference in appeals at our hands. It must be stated that the second of the points was not taken in the affidavits filed in support of the writ petitions and the same has been taken only before us in these writ appeals by taking out the appropriate applications for permission to raise additional grounds.

2. The first point gets projected as follows in the affidavit filed in support of the writ petitions : The exercise of delegated legislation is conditional upon the publication thereof. There must be due publication of the withdrawal notification in exercise of the delegated legislative power, which alone will be in the letter and spirit of the statutory provision enabling the exercise of such power. Neither the public, nor even the authorities were aware of the issuance of the withdrawal notification in the year 1967, whereby the concession notification of the year 1965 was withdrawn. It must be stated that the power of delegated legislation has not been properly exercised and cannot be given effect to. There was no publication of the withdrawal notification to the best of the information received by the petitioner. The withdrawal notification merely sets out the number, the page. Part and Section of the Fort St. George Gazette in which the concession notification was published. The withdrawal notification did not set out the commodity or goods with respect to which the concession notification was issued and the withdrawal notification does not set out any further particulars. Without such particulars, it would be impossible for anyone to know as to what the scope and content of the withdrawal notification are. This is made clear from the very fact that the authorities themselves did not know about the withdrawal notification. The respondents in their counter-affidavit, with regard to this grievance of the petitioner, would only say that no more particulars need be published, as contended by the petitioner.

3. To assess the grievance of the petitioner to find out as to whether it is a tenable one or not, it becomes necessary to extract both the notifications. The concession notification runs as follows :

"REVENUE DEPARTMENT

Rate of tax on white printing paper under Central Sales Tax Act.

(G.O.P. No. 3117, Revenue, 12th November, 1965)

III No. 601 of 1965. - In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), the Governor of Madras hereby directs that the tax payable by any dealer in the State of Madras under clause (b) of sub-section (2) of section 8 of the said Act in respect of sales by him of white printing paper to the newspaper concerns in the course of inter-State trade or commerce shall be calculated at the rate of 2 per cent.

C. P. Kelu Erady,
Joint Secretary to Government."

The withdrawal notification is in the following terms :

"REVENUE DEPARTMENT

Cancellation of certain notifications relating to reduction in rate of tax u/s 8(5) of Central Sales Tax Act.

(G.O.P. No. 642, Revenue, 20th March, 1967).

III No. 169 of 1967. - In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), the Governor of Madras hereby cancels, with effect on and from the 1st April, 1967, the Revenue Department Notifications, published in the Fort St. George Gazette, as detailed below :

 
-------------------------------------------------------------------
Number of the      Page, Part and Section   Date of  the Fort St.
notification.      of the Fort St. George   George Gazette in
                   Gazette, in which the    which the notification
                   notification was         was published.
                   published.
--------------------------------------------------------------------
     (1)                 (2)                      (3)
-----------------------------------------------------------------
1.  S.R.O. No. A.    Page 756 of Part I       27th May, 1959
    3147 of 1959
2.  S.R.O. No. A.    Page 1423 of Part I      30th September, 1959
    5929 of 1959
3.  II-1 No. 1606    Page 541 of Part Il,     12th October, 1960
    of 1960          Section I
4.  II-1 No. 2665    Page 902 of Part II,     7th December, 1960
    of 1960          Section I
5.  II-1 No. 5376    Page 1852 of Part II,    29th November, 1961
    of 1961          Section I
6.  II-1 No. 4156    Page 1690 of Part II,    5th September, 1962
    of 1962          Section I
7.  II-1 No. 5420    Page 2291 of Part II,    21st November, 1962
    of 1962          Section I
8.  Ill No. 118      Page 349 of Part III     13th February, 1963
    of 1963
9.  Ill No. 122      Page 373 of Part III     13th February, 1963
    of 1963
10. Ill No. 601      Page 2442 of Part III    24th November, 1965.
    of 1965
-----------------------------------------------------------------

K. S. Sivasubrahmanyan,
Secretary to Government."

4. The question as to whether the legislation, in the shape of notification, is law, within the meaning of article 304 of the Constitution of India is no longer res integra. In Kailash Nath and Another Vs. State of U.P. and Others, , it was held that the notification having been made in accordance with the power conferred by the statute, has statutory force and validity, and, therefore, exemption is as if contained in the Act itself. In The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, , the court relied on a passage from "Maxwell On the Interpretation of Statutes" and held that the rule framed in the absence of any specific provision in the Act, shall be deemed to be a part of the Act itself. In Jayantilal Amrit Lal Shodhan Vs. F.N. Rana and Others, , the notification by the President under article 258(1) of the Constitution was held to have the force of law and there is profuse discussion with regard to the functions of Government, executive, legislative and judiciary. In Narinder Chand Hem Raj and Others Vs. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and Others, , it was held that the exercise of the power is legislative whether it is by the Legislature or by its delegate. In State of Tamil Nadu Vs. Hind Stone and Others, , the Supreme Court relied on and adopted the dictum in The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, . In State of U.P. and Others Vs. Renusagar Power Co. and Others, , it was held that the power to grant exemption is quasi-legislative. In Video Electronics Pvt. Ltd. and Another and Weston Electronics Ltd. and Another Vs. State of Punjab and Another, , the case law on the subject was adverted to and it was held that the notification issued under the U.P. Sales Tax Act, 1948, is in exercise of the legislative power.

5. With regard to the power of withdrawal of the notification, the provisions of the General Clauses Act - section 21 of the Central Act and section 15 of the Tamil Nadu Act - lay down that the exercise of that power should be done in the like manner and subject to the like sanction and conditions, governing the very exercise of the power to issue the notification. The power to exempt is expressed in section 8(5) of the Central Sales Tax Act and it empowers the State Government, if it is satisfied that it is necessary so to do in the public interest, by notification in the Official Gazette to direct the exemption. Notification in the Official Gazette is the manner and method in which the power of exemption could be exercised. We have to take it that the power of withdrawal also should be exercised in the like manner and method. Even otherwise, natural justice requires that before a law can become operative, it must be promulgated and published. It must be broadcast in some recognisable way, so that all men may know what it is. It would be against the principles of natural justice to permit the subjects of the State to be punished or penalised or be subject to obligations and deprivation of rights, by laws of which they could not have acquired knowledge. In Harla Vs. The State of Rajasthan, , the above principle has been countenanced. In State of Maharashtra Vs. Hans George, , Rajagopala Ayyangar, J., who spoke for the majority, observed as follows :

"Where there is a statutory requirement as to the mode or form of publication and they are such that, in the circumstances, the court holds to be mandatory, a failure to comply with those requirements might result in there being no effective order, the contravention of which could be the subject of prosecution ....."

In Hansraj Gordhandas Vs. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat and Others, , it has been countenanced that the operation of the notification has to be judged not by the object, which the rule-making authority had in mind but by the words which it has employed to effectuate the legislative intent. One of us (Nainar Sundaram, J.) in Asia Tobacco Company Ltd. Vs. Union of India and Others, , had occasion to consider the question as to whether the bare printing of the Official Gazette containing the withdrawal notification and without the Official Gazette being made available to the public would amount to an effective notification. The case law on the subject was adverted to and the answer was given in the negative. It was observed as follows :

"The intendment of the notification in the Official Gazette is that in the case of either grant or withdrawal of exemption, the public must come to know of the same. ''Notify'', even according to the ordinary dictionary meaning would be ''to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform''."

The pronouncement in Asia Tobacco Company Ltd. Vs. Union of India and Others, has been confirmed by a Bench of this Court in Union of India v. Asia Tobacco Co. Ltd. (W.A. Nos. 1051 - 1053 of 1984, judgment dated 10th July, 1989).

6. Now let us examine whether by a perusal of the withdrawal notification, the citizen could be stated to have been put on notice of the withdrawal of the concession notification. The intendment of the notification is to take note : to give notice to; and to inform. This act of notification should not be shrouded in ambiguity. On the other hand, clarity must be inherent in it. The Revenue already declared that a concern like the petitioner would have to bear the burden of the tax liability only at a particular rate and that was a concessional rate. If that concession had got to be withdrawn, it should have been withdrawn in clear terms by making clear and specific references to all the relevant details. The concession notification bears the caption "rate of tax on white printing paper under Central Sales Tax Act". It further refers to G.O.P. No. 3117, Revenue, 12th November, 1965. We are told by Mr. C. Natarajan, the learned counsel appearing for the respondents, that the expansion of the words "G.O.P." is "Government Order Press". The concession notification further quotes "III No. 601 of 1965". In the body of the concession notification, the specific statement is that in respect of sales by the dealer in the State of Madras under clause (b) of sub-section (2) of section 8 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956) of white printing paper to the newspaper concerns in the course of inter-State trade or commerce, the tax payable by him shall be calculated at the rate of 2 per cent. There was no ambiguity in granting the concession. The same characteristic or quality must inhere the withdrawal notification. Coming to the withdrawal notification, it is an omnibus one. It has taken in as many as ten items. Item 10 in the withdrawal notification is stated to refer to sales of white printing paper to the newspaper concerns in the course of inter-State trade or commerce. But, there is no such specific reference to the above relevant detail in the body of the withdrawal notification. It does not bear a caption referring to the rate of tax on white printing paper under Central Sales Tax Act, as done in the concession notification. It bears a general caption "cancellation of certain notifications relating to reduction in rate of tax u/s 8(5) of Central Sales Tax Act". In column (1) opposite item 10, there is a reference to "III No. 601 of 1965". In column (2), page 2442 of Part III of Fort St. George Gazette is given. In column (3), the date of the said Gazette is given as 24th November, 1965. It is one among the ten items. By the withdrawal notification, the concession granted is taken away. If we are to countenance the withdrawal notification, as having been done in the like manner and method as the concession notification, certainly we will be permitting a watering down of the statutory and legal obligations with regard to exercise of the power of the withdrawal of a notification, which is legislative in character. The draftsman of the withdrawal notification could not do a cursory or a glossarist or a casual work of it; and the act of the authority approving the draft, for sending it to the publishing authority, cannot also be complemented and commended. It must be remembered that the rights of the citizen are being dealt with. By withdrawal of the concession notification, a benefit, enjoyed by the citizen is being deprived to him. While that could be done, it must be done in the like manner and method as law enjoins the conferment of it to be done. There cannot be a mutilation of the concept of "in the like manner and method". If the authority indulges in that, that act must be ignored as ineffectual and inoperative. Dr. D. Pal, the learned counsel for the petitioner, in this connection also drew our attention to section 28 of the Central General Clauses Act, 1897, to say that in any instrument made under any Central Act, any enactment may be cited by reference to the title or short title conferred thereon, and he would say that this rule stands violated in the case of the withdrawal notification. We see force and reason in this submission of the learned counsel for the petitioner.

7. It is true there is a communication relating to the withdrawal notification by the Board on 31st March, 1967, to the Deputy Commissioners. But, this inter-communication would not suffice the concept of due notification. A similar contention was repelled by the Supreme Court in State of Madhya Pradesh v. Ram Ragubir Prasad by pointing out "contextually speaking, we are satisfied that publication means more than mere communication to concerned officials or departments". But, in the instant case, even the departmental officials could not and did not comprehend that an event like the withdrawal notification did happen. They were oblivious to the withdrawal notification; and year after year; assessment of the petitioner was made on the basis that the concession notification applied to it. There is no dispute over the same. Dr. D. Pal, the learned counsel for the petitioner, also places before us authors and publishers of repute of books on sales tax law, Central and State, to show that they also made known to the public that the concession notification alone governed and there was no withdrawal of it. This endeavour was only to impress upon us that nobody was made wiser of the withdrawal notification and every one proceeded on the ground that the concession notification governed.

8. Mr. C. Natarajan, the learned counsel for the respondents, would submit that when the law requires that certain tax to be collected, it cannot be given up and any assurance by the State that it would not be collected also would not bind it whenever it chose to collect it, and a concession can always be withdrawn without violating the rule of promissory estoppel and in the instant case, no promissory estoppel could be pleaded. In this connection, the learned counsel for the respondents, placed reliance on the following pronouncements :

(1) Mathra Prashad and Sons Vs. State of Punjab, ,

(2) Shri Bakul Oil Industries and Another Vs. State of Gujarat and Another, , and

(3) Sohanlal Shantilal and Bros. Vs. Union of India (UOI), .

Nobody need take exception to the proposition advanced by the learned counsel for the respondents. But, here the contention raised on behalf of the petitioner is that when the State exercises the power of withdrawal of a concession, the conferment of which was done by due notification, the same could be done only in the like manner and method and there cannot be abrasion of the same, which, if done, must be frowned upon by the court and must stand ignored, as totally ineffective. What has happened in the instant case is nothing short of the abrasion of "in the like manner and method" of exercising the power of withdrawal. There was lack of clarity and hence the withdrawal notification could not be stated to have been done by due notification. It should be held that there was no withdrawal notification at all on facts and in the eye of law. Our finding on the first point enables the petitioner to succeed in the with petitions. Yet, for completion we shall proceed to deal with the second point.

9. The second point has been raised, as already noted, only in the additional grounds now taken before us. The same stands projected as follows : section 8(5) of the Central Sales Tax Act confers upon the State Government the power to grant exemption or concession if the State Government is satisfied that it is necessary so to do in the public interest. Such exemption could be accorded only by notification in the Official Gazette and subject to such conditions as may be specified therein. Even though the said provision does not expressly confer a power to withdraw or cancel the exemption or concession; assuming that such a power is implied, by reason of the provisions of the General Clauses Act, the said power can be exercised only in the like manner and subject to the like sanction and conditions. The withdrawal notification does not even prima facie disclose that the State Government is satisfied that it is necessary so to do in the public interest to withdraw the concession granted earlier. As such the conditions for the exercise of the power of withdrawal have not been satisfied and hence the withdrawal notification is illegal, invalid and without jurisdiction, power and authority or in excess of them. There is no material on which the State Government was and/or could be stated to have been satisfied that it was necessary in the public interest to withdraw the concession. There is a counter-affidavit filed on behalf of the respondents answering the second point raised in the additional grounds.

10. Here again, we must advert to the provisions of the General Clauses Act, Central and State, and they contemplate that the power of withdrawal could be exercised only subject to the like sanction and conditions. Section 8(5) of the Act lays down the conditions for granting the exemption or concession. The State Government can grant exemption or concession if it is satisfied that it is necessary so to do in the public interest. There should be public interest and the State Government must be satisfied about it. It has been countenanced in Kamla Prasad Khetan Vs. The Union of India (UOI), that it is open to the court to find out as to whether the amending order complied with the like conditions under which the original order was made. In substance, the power to cancel, modify or vary must be exercised within the limits prescribed by the provision conferring the said power. The concession notification in the instant case specifically refers to public interest. The withdrawal notification does not refer to public interest at all. There were citations by both the sides as to how far this Court could go into this question. The learned counsel for the petitioner would place reliance on the following pronouncements : In M.A. Rasheed and Others Vs. The State of Kerala, , the principles countenanced run as follows :

"Where powers are conferred on public authorities to exercise the same when ''they are satisfied'' or when ''it appears to them'', or when ''in their opinion'' a certain state of affairs exists; or when powers enable public authorities to take ''such action as they think fit'' in relation to a subject-matter, the courts will not readily defer to the conclusiveness of an executive authority''s opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.

Where reasonable conduct is expected the criterion of reasonableness is not subjective, but objective. The onus of establishing unreasonableness however, rests upon the person challenging the validity of the Acts.

Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts'' own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis."

In Baldev Raj Chadha Vs. Union of India (UOI) and Others, , it has been recognised as follows :

"When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of ''public interest'' justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well-settled in administrative law and founded on constitutional obligations. The Court is confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest. The appropriate authority, not the court, makes the decision, but, even so, a caveat is necessary to avoid misuse."

In Commissioner of Income Tax, Bombay and Others Vs. Mahindra and Mahindra Limited and Others, , our attention to the following passage has been drawn :

"By now, the parameters of the court''s power of judicial review of administrative or executive action or decision and the grounds on which the court can interfere with the same are well-settled and it would be redundant to recapitulate the whole catena of decisions of this Court commencing from The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, on the point. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same. This Court in one of its later decisions in Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, , has observed thus : ''It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.'' Suffice it to say that the following passage appearing at pages 285-86 in Prof. de Smith''s treatise : Judicial Review of Administrative Action (4th Edition) succinctly summarises the several principles formulated by the court in that behalf thus :

''The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it : it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories; failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires. Nor, is it possible to differentiate with precision the grounds of invalidity contained within each category.''"

The learned counsel for the petitioner also drew our attention to a number of notifications u/s 8(5) of the Central Sales Tax Act, 1956, in and by which the earlier notifications were cancelled and in them there is specific reference to the State Government having been satisfied that it is necessary to do so in the public interest.

11. On behalf of the respondents, their learned counsel would like us to be guided by the ratio in the following pronouncements : The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., :

"A neat definition of what ''tax'' means has been given by Latham, C.J. of the High Court of Australia in - Matthews v. Chicory Marketing Board 60 CLR 263 .

''A tax'', according to the learned Chief Justice, ''is a compulsory exaction of money by public authority for public purposes enforceable by law and is not a payment "for services rendered"''

This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the tax-payer''s consent and the payment is enforced by law vide - Lower Mainland Diary v. Crystal Dairy Ltd. [1933] AC 168.

The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which, when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of ''quid pro quo'' between the tax-payer and the public authority .............."

In Bakul Cashew Company v. Sales Tax Officer [1977] 40 STC 178, a Bench of the High Court of Kerala accepted the statement that the power to tax has to be presumed to be in public interest, and as the cancellation of the exemption would result in subjecting the exempted categories to taxation, the test of public interest would stand satisfied.

12. Whatever be the angle from which we can test the withdrawal notification, the basic element which should not be lost sight of, is the satisfaction of the "like conditions" and in the instant case "public interest". The withdrawal notification by itself is not portent on this subject. As noted earlier, it does not refer to any public interest and the State Government having been satisfied with it. It is as bald as baldness could be on the relevant aspects. What is sought to be pressed forth before us that reasons which are nothing short of public interest alone weighed with the State in making the withdrawal notification is, the proceedings of the Board dated 31st March, 1967. Paragraph 2 of the said proceedings alone is relevant and it needs extraction, as follows :

"Items 2 to 5 and 8 to 10 in para 1 above.

The general multi-point rate of tax under the Madras General Sales Tax Act, 1959 has been increased from 2 per cent to 2 1/2 per cent with effect from 1st December, 1965. The rate of Central sales tax payable under sub-section (1) of section 8 of the Central Sales Tax Act, 1956, against production of ''C'' or ''D'' forms has also been increased from 2 per cent to 3 per cent with effect from 1st July, 1966. Under sub-section (2-A) of section 8 of the Central Sales Tax Act, 1956, if under the Madras General Sales Tax Act, 1959, the sale or purchase of any goods by a dealer is exempt from tax generally or subject to tax generally at a rate which is lower than 3 per cent the tax payable under Central Sales Tax Act, 1956, on the sale of such goods being nil, or as the case may be, is to be calculated at a lower rate. The rate of tax payable under the Madras General Sales Tax Act, 1959, in respect of the goods mentioned in para 1 above is less than 3 per cent. Therefore, by virtue of the provisions in sub-section (2-A) of section 8 of the Central Sales Tax Act, 1956, tax payable on the inter-State sales of these goods [but for the notifications issued u/s 8(5) of the Act] will also be less than 3 per cent. In view of the changes in the rates of tax payable under the local Sales Tax Act and the Central Sales Tax Act, 1956, the Government consider that there is no need to continue the lower rates of tax admissible under the notifications issued under sub-section (5) of section 8 of the Central Sales Tax Act, 1956 and that the notifications should be cancelled."

It deals with items 2 to 5 and 8 to 10 of the withdrawal notification. This proceedings set down and refers to the reasons for withdrawal. Mr. C. Natarajan, the learned counsel for the respondents, declared before and assured us that these proceedings of the Board correctly sum up and reflect the proceedings preceding the withdrawal notification and nothing need be supplemented to it from such preceding proceedings. If this is the position, we must straightway say that the reasons set out in the proceedings dated 31st March, 1967, are alien and foreign to the question. They do not and they cannot refer to item 10 of the withdrawal notification, namely, withdrawal of the concessional rate given to sales of white printing paper to the newspaper concerns in the course of inter-State trade or commerce to a dealer in the State of Madras under clause (b) of sub-section (2) to section 8 of the Central Sales Tax Act, 1956. Apparently, item 10 has been put in the hotch-potch without any application of mind. There is no reference to section 8(2)(b) of the Act at all in the proceedings dated 31st March, 1967. It refers only to section 8(1) of the Central Sales Tax Act, 1956. As rightly contended by Dr. D. Pal, the learned counsel for the petitioner, obviously there has been non-application of mind. Having given reasons, which are not tenable, the respondents cannot ask the Court to go into the field of assumptions and presumptions. Under these circumstances, we are obliged to answer the second point also in favour of the petitioner.

13. There was one aspect which Dr. D. Pal, the learned counsel for the petitioner, urged, which, in fairness to him, we must advert to, and that is that in the instant case, there was an order made by the Appellate Assistant Commissioner (C.T.), Tirunelveli, on 28th October, 1977, for the assessment year 1975-76 settling the question in favour of the petitioner and in fact, that was implemented by the assessing officer and in the said circumstance, assuming that the Appellate Assistant Commissioner committed a mistake; yet, the assessing officer could not initiate revision proceedings. In this connection, the learned counsel for the petitioner drew our attention to the decision of the Supreme Court in Commissioner of Income Tax, New Delhi Vs. Rao Thakur Narayan Singh, . There is no need for us to strain on this aspect, since our sustaining the two points, raised by the learned counsel for the petitioner, enables the petitioner to succeed. The learned single Judge, who dealt with the matter, was more guided by the fact that the petitioner could answer the impugned notices and proceed further. But, here we find a case where the impugned notices suffer infirmities, which go to the root of the matter, and to which infirmities, this Court, when its attention has been drawn, cannot shut its eyes and decline to exercise the powers intended to remedy such situations.

14. In the said circumstances, we are obliged to interfere in writ appeal. Accordingly, these writ appeals are allowed; the orders of the learned single Judge are set aside; and the writ petitions, out of which these writ appeals arise, will stand allowed, as prayed for. No costs.

The oral leave asked for to appeal to the Supreme Court of India is declined by us, since we have only applied the well laid down principles of the Supreme Court of India on the two questions argued before us and in our view, we have not departed from the principles countenanced by the pronouncements of the Supreme Court of India.

15. Writ appeals allowed.