TaxTMI 
TaxTMI 
1981 (10) TMI 146
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....x Act, 1954 (hereinafter referred to as "the Act"), and levying interest under section 11B of the Act amounting to Rs. 85,910.50 and a further penalty of Rs. 1,34,205 under section 7AA of the Act read with section 9(2) of the Central Sales Tax Act and levying interest of Rs. 2,07,174 under section 11B of the Act read with section 9(2) of the Central Sales Tax Act in respect of the assessment year 1974-75. The circumstances under which the above orders came to be passed are these: The assessee has a cement manufacturing factory in the State of Rajasthan at Lakheri. The cement manufactured at that factory is sold partly in the State of Rajasthan and partly outside that State. The invoices of sales are, however, made and issued at Ahmedabad and other places. The sales tax returns relating to the sales were filed under the Act and under the Central Sales Tax Act at Kota before the assessing authority for the period between August 1, 1973, and July 31, 1974, i.e., the assessment year 1974-75. In those returns, the assessee had not included in the taxable turnovers the freight charges paid in respect of the goods in question in the bona fide belief that the freight charges were not li....
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.... charges which were declared as components of sale price by this Court in Hindustan Sugar Mills' case(1) on August 22, 1978. The explanation of the assessee for not including the freight charges in the taxable turnover was, as mentioned earlier, that there was a doubt about its liability to pay sales tax thereon as the very same question was pending adjudication before this Court and that on the facts and in the circumstances of the case, the assessee could not be held guilty of filing false returns before the assessing authority. It was pleaded that since the non-inclusion of the freight charges in the taxable turnover was a result of bona fide belief of the assessee that they were not liable to be included in the taxable turnover, the assessing authority should have in its discretion not imposed the penalties particularly having regard to the fact that within two months after the judgment of this Court in Hindustan Sugar Mills' case [1979] 43 S.T.C. 13 (S.C.); [1979] 1 S.C.R. 276., the assessee had filed the revised returns including the freight charges in the taxable turnover and paid the sales tax payable in respect of them even before the assessing authority had passed the ord....
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....lf of the State Government, showing the deposit of the full amount of tax due on the basis of return in the Government treasury or bank concerned. (2A) Notwithstanding anything contained in sub-section (2), the State Government may by notification in the official Gazette require any dealer or class of dealers specified therein, to pay tax at intervals shorter than those prescribed under sub-section (1). In such cases, the proportionate tax on the basis of the last return shall be deposited at the intervals specified in the said notification in advance of the return. The difference, if any, of the tax payable according to the return and the advance tax paid shall be deposited with the return and the return shall be accompanied by the treasury receipt, or receipts of any bank authorised to receive money on behalf of the State Government, for the full amount of tax due shown in the return. (3) If any dealer discovers any omission, error, or wrong statement in any returns furnished by him under sub-section (1), he may furnish a revised return in the prescribed manner before the time prescribed for the submission of the next return but not later. (4) Every deposit of tax made u....
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....iced, provides that every deposit of tax made under sub-section (2) shall be deemed to be provisional subject to necessary adjustments in pursuance of the final assessment of tax made for any year under section 10. Clause (a) of section 11B of the Act authorises the levy of interest on the amount of tax not paid in accordance with sub-sections (2) and (2A) of section 7 of the Act. The expression "prescribed" is defined in section 2(1) of the Act. It states that in the Act unless the context otherwise requires, "prescribed" means prescribed by Rules made under the Act. Section 26 of the Act empowers the State Government to make rules to carry out the purposes of the Act and in particular and without prejudice to the generality of the foregoing power, such rules may provide for all matters expressly required or allowed by the Act to be prescribed We have seen earlier that section 7(1) of the Act requires the returns to be filed in the prescribed manner, in respect of the prescribed periods and within the prescribed time. Sub-section (5) of section 26 of the Act lays down that all rules made under that section shall be published in the official Gazette and upon such publication shall ....
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....to take any cognisance of the return. Rule 25 of the Rules which is framed under the Act should be read as a part of the Act itself in view of the express provision contained in sub-section (5) of section 26 of the Act, which declares that all rules made under section 26 shall on publication in the official Gazette have effect, as if enacted in the Act. That this should be the effect of a rule framed under a statute containing a provision similar to the provision in section 26(5) of the Act can be gathered from a decision of the House of Lords in Institute of Patent Agents v. Joseph Lockwood [1894] A.C. 347 at 360., in which Lord Herschell, L.C., observed at page 360 thus: "I own I feel very great difficulty in giving to this provision that they 'shall be of the same effect as if they were contained. in this Act', any other meaning than this, that you shall for all purposes of construction or obligation or otherwise treat them exactly as if they were in the Act. No doubt there might be some conflict between a rule and a provision of the Act. Well, there is a conflict some times between two sections to be found in the same Act. You have to try and reconcile them as best you may. ....
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.... section 7(2) of the Act on the basis of the return. (2) A registered dealer who files a true and proper return and pays tax on the basis of such return within the time allowed. (3) A registered dealer who does not file any return at all as required by section 7(1) and pays no tax under section 7(2) of the Act. (4) A registered dealer who files a true return but does not pay the full amount of tax as required by section 7(2) and (5) A registered dealer who files a return but wrongly claims either the whole or any part of the turnover as not taxable and pays under section 7(2) of the Act that amount of tax, which according to him is payable, on the basis of the return. In the case of a registered dealer falling under class (1) no question of payment of interest would arise as the amount of tax paid by him at the time of filing the return is much more than what is actually due and payable by him under the Act. The extra tax paid by him becomes refundable after the regular assessment is completed in view of section 7(4) of the Act. In the case of a registered dealer falling under class (2) also no question of payment of interest arises as there is no shortfall in paymen....
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.... courts while interpreting the provisions of a taxing statute between charging provisions which impose the charge to tax and machinery provisions which provide the machinery for the quantification of the tax and the levying and collection of the tax so imposed. While charging provisions are construed strictly, machinery sections are not generally subject to a rigorous construction. The courts are expected to construe the machinery sections in such a manner that a charge to tax is not defeated. The above rule of construction of a taxing statute has been adopted by this Court in India United Mills Ltd. v. Commissioner of Excess Profits Tax, Bombay [1955] 27 I.T.R. 20 (S.C.); [1955] 1 S.C.R. 810., in which section 15 of the Excess Profits Tax Act came up for consideration. The court observed in that case thus: "That section is, it should be emphasised, not a, charging section, but a machinery section. And a machinery section should be so construed as to effectuate the charging sections." The above principle was followed by this Court in Gursahai Saigal v. Commissioner of Income-tax, Punjab(1), in which it was observed thus: "Now it is well-recognised that the rule of constructio....
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....63] 3 S.C.R. 893., are interesting. That was a case in which an assessee who was charged with interest under sub-section (8) of section 18A of the Indian Income-tax Act, 1922, had questioned his liability to pay interest. His contention was that interest payable under sub-section (8) of section 18A of that Act had to be calculated in the manner laid down in sub-section (6) thereof. Since sub-section (6) of section 18A of the Act provided that where in any year an assessee had paid tax under sub-section (2) or sub-section (3) thereof on the basis of his own estimate and the tax so paid was less than eighty per cent of the tax determined on the basis of regular assessment simple interest at the rate of six per cent per annum from the 1st day of January in the financial year in which the tax was paid up to the date of the said regular assessment should be payable by the assessee and as he had not paid any tax at all, it was urged that it was not possible to calculate interest in the manner laid down in sub-section (6). The court rejected the contention of the assessee following the decision of the Privy Council and the House of Lords referred to above that the words "from the 1st d....
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....of opinion that this view is in conformity with the legislative intention in enacting section 11B of the Act. We have carefully gone through the decision of five learned Judges of this Court in State of Rajasthan v. Ghasilal [1965] 16 S.T.C. 318 (S.C.); [1965] 2 S.C.R. 805., and we are humbly of opinion that it is distinguishable from the present case. In Ghasigal's case [1965] 16 S.T.C. 318 (S.C.); [1965] 2 S.C.R. 805., this Court was concerned with the question of sustainability of penalties imposed under the Act and not interest leviable under section 11B. The relevant facts in that case were these: The respondent therein who was a dealer within the meaning of the Act filed a writ petition in the High Court of Rajasthan challenging the making of assessment on his turnover for the year 1955-56 on the ground that the Rules which had been published on March 28, 1955, were invalid. On January 9, 1958, the High Court passed an interim order stating that "the petitioner will keep proper accounts and file the prescribed returns but he shall not be assessed till further orders". While the petition was pending in the High Court, Ordinance No. 5 of 1959 was promulgated on November 6, 1....
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....ajasthan filed two appeals which were disposed of by this Court by the judgment rendered in the above case. The judgment of this Court depended upon the true construction of clause (b) of section 16(1) of the Act, which read: "16. (1) If any person- (a).......; or (b) has without reasonable cause failed to pay the tax due within the time allowed; or (c) has without reasonable cause failed to furnish the return of his turnover, or failed to furnish it within the time allowed; or ........................... the assessing authority may direct that such person shall pay by way of penalty, in the case referred to in clause (a) in addition to the fee payable by him, a sum not exceeding Rs. 50 and in the case referred, to in clause (b), in addition to the amount payable by him, a sum not exceeding half of that amount, and that in cases referred to in clauses (c) and (d), in addition to the tax payable by him, a sum not exceeding half the amount of tax determined; in the case referred to in clause (e), in addition to the tax payable by him a sum not exceeding double the amount of tax, if any, which would have been avoided if the taxable turnover as returned by such per....
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....viding for levy of penalty for failure to furnish returns has been inserted in the Act by Rajasthan Act 11 of 1969. Section 7AA reads thus: "7AA. Penalty for failure to furnish returns.-If the assessing authority in the course of any proceedings under this Act, is satisfied that any dealer has without reasonable cause failed to furnish the return under sub-section (1) of section 7 within the time allowed, he may direct that such dealer shall pay by way of penalty, in addition to the amount of the tax, if any, payable by him, a sum equal to two per cent of the tax, for every month during which the default continued but not exceeding in the aggregate fifty per cent of the tax." Section 16(1) as it now stands does not deal with levy of penalty for not filing the prescribed return as it is provided by section 7AA set out above. It is also to be pointed out that sub-section (2A) was inserted in section 7 by Rajasthan Act 13 of 1963 providing that notwithstanding anything contained in sub- section (2) of section 7 the State Government may by notification in the official Gazette require any dealer or class of dealers specified therein to pay tax at intervals shorter than those presc....
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.... section 7 of the Act and the Rules framed thereunder, even though, it becomes due when return is filed under section 7(2) or ascertained under section 10. That a tax can become payable even before assessment is also clear from the observations of Sikri, J. (as he then was), in Ghasilal's case [1965] 16 S.T.C. 318 (S.C.); [1965] 2 S.C.R. 805., to the effect that "Section 3, the charging section, read with section 5, makes tax payable, i.e., creates a liability to pay the tax.......... But till the tax payable is ascertained by the assessing authority under section 10, or by the assessee under section 7(2), no tax can be said to be duo within section 16(1)(b) of the Act, for till then there is only a liability to be assessed to tax." (emphasis Here italicised. added) We are of opinion that either by delaying the filing of the return or not filing it at all or by filing a return wrongly claiming that a certain part of the turnover is not taxable or by not disclosing a part of the taxable turnover in the return an assessee cannot escape the liability to pay interest under section 11B(a) on the amount of tax withheld, as a consequence of his own action or inaction, from the last dat....
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....s per returns within the time as aforesaid, at the rate of one and a quarter per cent per month from the date by which he was required to pay the tax by or under the provisions of this Act for a period of three months and at one and a half per cent per month thereafter until the date of payment; (b) Where any registered dealer or any other dealer has furnished a revised return as provided under sub-section (3) of section 7, which revised return shows that amount of tax larger than that already paid is payable, such dealer shall be liable to pay interest on the excess amount of tax at such rate and for such period as provided in clause (a) of this sub-section as if such amount of tax payable as per the revised return was the amount of tax payable according to the original return......................." It was contended that as clauses (a) and (b) of sub-section (1) of section 11B extracted above were declaratory in character and merely explained what the legislature meant by enacting section 11B as it stood before the substitution, the assessee was liable to pay interest on the amount of tax payable in respect of freight charges under clause (b) of sub-section (1) of th....
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....S.T.C. 487 (S.C.). The assessee paid up for each quarter the full amount of tax calculated on the basis of the return submitted by it and the receipt for such payment was filed along with the return. The amount of tax paid by the assessee obviously did not include tax on the amount of freight, since according to the assessee the amount of freight did not form part of the sale price and was accordingly not shown in the returns as forming part of the taxable turnover. Subsequently, however, the question whether the amount of freight formed part of the sale price and was therefore includible in the taxable turnover of the assessee so as to be exigible to tax came up for consideration before this Court in Hindustan Sugar Mills Limited v. State of Rajasthan [1979] 43 S.T.C. 13 (S.C.); [1979] 1 S.C.R. 276. and it was held by this Court that by reason of the provisions of the Cement Control Order, 1967, which governed the transactions of sale of cement entered into by the assessee with the purchasers, the amount of freight formed part of the sale price within the meaning of the first part of the definition of that term contained in section 2(p) of the State Act and section 2(h) of the Cen....
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....xable turnover in the original returns and for not paying the tax in respect of such freight charges is unsustainable" and that the two orders of assessment in so far as they levy penalty on the assessee are liable to be quashed and set aside. I entirely agree with the view taken by him and I do not think I can usefully add anything to what he has said. The next question that arises for consideration is whether the assessee was liable under section 11B of the State Act to pay interest on the tax in respect of the amount of freight for the period between the date of filing of the original return and the date when such tax was actually paid while filing the revised return. The contention of the revenue was that the assessee was so liable and this contention was sought to be supported by relying on section 2, sub- sections (1) and (2), read with section 11B of the State Act. The same provisions with section 9, sub-section (2), of the Central Act were also relied upon for the purpose of sustaining the revenue's claim for interest under the Central Act. The determination of the question before us therefore really turns on the true interpretation of section 7, sub-sections (1) and (2)....
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.... such notice, or in the absence of such specification, within 30 days from the date of service of such notice, the dealer shall be liable to pay simple interest on such amount at one per cent per month from the day commencing after the end of the said period for a period of three months and at one and a half per cent per month thereafter during the time he continues to make default in the payments: Provided that, where, as a result of any order under this Act, the amount, on which interest was payable under this section, has been reduced, the interest shall be reduced accordingly and the excess interest paid, if any, shall be refunded: Provided further that no interest shall be payable under this section on such amount and for such period in respect of which interest is paid under the provisions of sections 11 and 14." These are the two sections which fall for construction but in order to arrive at their true meaning and legal effect it is necessary to refer to a few other provisions of the State Act. Section 3 is the charging section and it creates the liability to pay tax. That is the normal function of a charging section in a taxing statute. But, of itself, it do....
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.... the notice of demand and if no such date is specified, then within thirty days from the date of service of the notice. So long the assessee pays up the amount of the tax assessed within the time specified in the notice of demand or within thirty days from the date of service of the notice, as the case may be, he would not be in default and hence section 11B, clause (b), provides that the assessee would be liable to pay interest on the tax assessed only if the amount of such tax is not paid within the period specified in the notice of demand or in the absence of such specification, within thirty days from the date of service of such notice and then too, the liability to pay interest would commence not from the date of the assessment, but from "the day commencing after the end of the said period", that is, the period specified in the notice of demand or thirty days from the date of service of such notice, as the case may be. Thus even after the assessment is made and the tax payable by an assessee is determined, the assessee is not liable to pay interest on the amount of such tax until after the period specified in the notice of demand or in the absence of such specification, thirty....
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....d the same at the time of filing the original returns, and since the assessee failed to do so, section 11A, clause (a), was attracted and the assessee was liable under that provision to pay interest on the tax on the amount of freight which remained unpaid until the filing of the revised returns. This argument, plausible though it may seem, is in my opinion unsustainable. It is plainly contrary to the language of sub-section (2) of section 7 read with section 11B and is opposed to the scheme of the State Act. It is also inconsistent with the decision of a Bench of five judges of this Court in State of Rajasthan v. Ghasilal [1965] 16 S.T.C. 318 (S.C.); [1965] 2 S.C.R. 805. Indeed I fail to see how in the face of this decision, the Court can possibly accept the argument of the revenue. The language used in sub-section (2) of section 7 is "full amount of tax due on the basis of return". The "return" referred to is obviously the return filed by the assessee under sub-section (1) of section 7. Now it is true that when sub-section (1) of section 7 requires an assessee to file a return, the return filed must be correct and proper. If the return is not correct and proper, the assessing ....
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.... revenue would thus be that the tax payable under sub-section (2) of section 7 would be the full amount of the tax as assessed, because that would represent the tax due on the basis of a correct and proper return and the assessee would have to deposit at the time of filing the return an amount equivalent to the amount of the tax as assessed. If the assessee fails to do so, then apart from the liability to pay interest under section 11B, clause (a), the assessee would expose himself to penalty under section 16, sub-section (1), clause (n), which provides inter alia that any person, who falls to comply with any requirement of the provisions of the State Act, the requirement under sub-section (2) of section 7 being to deposit the full amount of tax due on the basis of return, shall be liable to penalty in "a sum not exceeding Rs. 1,000 and in the case of continuing default, a further penalty not exceeding Rs. 50 for every day of such continuance". This is a consequence which it is difficult to believe could ever have been contemplated by the legislature. The legislature could never have intended that the assessee should be liable, on pain of imposition of penalty, to deposit an amount....
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....during the period specified in the notice of demand or in the absence of such non-specification during the period of thirty days from the date of service of such notice. Such a conflict could never have been intended by the legislature. It is a well-settled rule of interpretation that a statute must be so construed as not to create any repugnance between its different provisions, for it is a basic assumption underlying every interpretational exercise that the legislature must be supposed not to have intended to contradict itself. The court must always prefer that interpretation which avoids repugnancy between two provisions of a statute and gives full meaning and effect to both. Therefore, on this principle of interpretation also the construction canvassed on behalf of the revenue cannot be accepted, as it would create a direct conflict between the provisions of clauses (a) and (b) of section 11B. The only way in which clauses (a) and (b) of section 11B can be read harmoniously and full meaning and effect can be given to them is by construing them as dealing with distinct matters or situations. The tax payable under sub-section (2) of section 7 dealt with in clause (a) of section 1....
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....om the date of service of such notice expires that the amount of tax as assessed becomes payable by the assessee and its payment can be enforced by the revenue. What becomes payable by the assessee under sub-section (2) of section 7 is merely the tax due on the basis of the return actually filed by the assessee, that is, on the basis of self-assessment. This position seems to be clear beyond doubt on an examination of the scheme of taxation contained in the State Act and no authority is needed in support of it, but if any authority were needed, it is to be found in the decision of a Bench of five Judges of this Court in State of Rajasthan v. Ghasilal [1965] 16 S.T.C. 318 (S.C.); [1965] 2 S.C.R. 805. There the question was whether the assessee could be said to have failed, without reasonable cause, to pay the tax due within the time allowed, when he paid the tax due on the basis of the quarterly returns at the time of filing those returns, but the returns were filed long after the due dates for filing the same had expired. The argument of the revenue was that the tax became due from the assessee under section 3 which is the charging section and the assessee could not withhold ....
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....h is ultimately found to be taxable at the time of regular assessment and who pays tax under section 7(2) of the Act on the basis of the return. (2) A registered dealer who files a true and proper return and pays tax on the basis of such return within the time allowed. (3) A registered dealer who does not file any return at all as required by section 7(1) and pays no tax under section 7(2) of the Act. (4) A registered dealer who files a true return but does not pay the full amount of tax as required by section 7(2) and (5) A registered dealer who files a return but wrongly claims either the whole or any part of the turnover as not taxable and pays under section 7(2) of of the Act that amount of tax, which according to him is payable, on the basis of the return. The learned Judge has observed that if the construction contended for on behalf of the assessee were accepted, registered dealers failing within categories (3), (4) and (5) would be outside the provision enacted in sub-section (2) of section 7 read with section 11B, clause (a), and no interest would be payable by them under that provision and that would make clause (a) of section 11B "either unworkable or mean....
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....ccept the conclusion reached by my learned brother Venkataramiah, J., that a registered dealer falling within category (3) who does not file any return at all as required by sub-section (1) of section 7 would still be liable to pay the amount of tax and if he does not pay the same before the due date for filing the return has expired, he would be liable to pay interest under section 11B, clause (a). That would be plainly contrary to the decision in State of Rajasthan v. Ghasilal [1965] 16 S.T.C. 318 (S.C.); [1965] 2 S.C.R. 805., which, being a decision of five Judges of this Court, is binding upon us. So also with regard to registered dealers falling within category (4), I cannot agree with the view taken by my learned brother Venkataramiah, J. He has reasoned that if a registered dealer files a return but does not pay the full amount of the tax due on the basis of the return filed by him, the assessing authority would be entitled to ignore the return under sub-rule (4) of rule 25 and when the return is not taken cognizance of, there would be no return on the basis of which interest can be computed. This reasoning is, in my opinion, fallacious and if I may say so witho....
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....assessing authority chooses not to take cognizance of the return, it would proceed to assess the assessee as if no return had been filed by him, but that would not relieve the assessee of the obligation attaching to him under sub-section (2) of section 7 of depositing, at the time of filing the return, the amount of the tax due on the basis of the return actually filed nor would it condone the breach of such obligation. If the assessee does not pay the full amount of the tax due on the basis of the return as required by sub- section (2) of section 7, he would be liable to pay interest under section 11B, clause (a), irrespective of whether the assessing authority chooses to act upon the return or declines to take cognizance of it. The argument which has appealed to my learned brother Venkataramiah, J., that if the construction put forward on behalf of the assessee were accepted, sub-section (2) of section 7 would fail in its application to a registered dealer falling within category (4) is therefore in my opinion not a valid argument and, with the greatest respect, I must confess my inability to accept it. On the construction contended for on behalf of the assessee, the case of a re....
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....est under sub-section (8) of section 18A of the Indian Income-tax Act, 1922, which provided that "where, on making the regular assessment, the Income-tax Officer finds that no payment of tax has been made in accordance with the foregoing provisions of this section, interest calculated in the manner laid down in sub-section (6) shall be added to the tax as determined on the basis of the regular assessment". The argument of the assessee was that since sub-section (6) of section 18A provided that where in any year an assessee has paid tax under sub-section (2) or sub-section (3) on the basis of his own estimate and the tax so paid is less than 80 per cent of the tax determined on the basis of the regular assessment, simple interest at the rate of 6 per cent per annum from the first day of January in the financial year in which the tax was paid up to the date of such regular assessment shall be payable by the assessee and since no payment of tax had been made by the assessee at all in that case it was not possible to calculate interest in the manner laid down in sub-section (6) and no interest could therefore be charged to the assessee under sub-section (8) of section 18A. This argumen....