TaxTMI 
TaxTMI 
2018 (7) TMI 1766
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....or short) provided for completion of assessment on the filing of return by the assessee. Section 25 of the KVAT Act provided for assessment of escaped turnover, under which at the instances of escapement as enumerated there under, the assessing authority may "proceed to determine, to the best of its judgment, the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction in respect of which has been wrongly made or input tax credit that has been wrongly availed of and assess the tax payable on such turnover or disallow the input tax credit wrongly availed of, after issuing a notice on the dealer and after making such enquiry as it may consider necessary". However, this had to be done within five years from the close of the assessment year. 3. In the present appeal, the assessment years were 2005-06 and 2006-07, the close of which occur on 31.3.2006 and 31.3.2007. The issue before the learned Single Judge was whether notices could be issued after the five year period as stipulated in Section 25 of the KVAT Act. The learned Single Judge refused to exercise discretion under Arti....
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....axes) appearing for the State would contend that the Full Bench has gone into areas where it ought not to have gone into, especially when the reference order confined itself to the sustainability of Tirur Medical Stores (supra). We do not see any such digression of issue by the Full Bench, especially since there was no further findings entered on the unreasonable delay that could occur in the wake of interpretation agreed to by the Full Bench. The Full Bench merely opined that, in any event, it would not be proper for this Court to bring out a structured time frame for completion of assessment and termed it to be the task of the legislature. 8. As far as the confirmation of Tirur Medical Stores (supra), it was specifically the point of reference by the Division Bench. The learned Special Government Pleader (Taxes) would argue that in the facts of the aforesaid case, there was no reason for such a reference order. That was a matter which the State should have urged before the Full Bench and after having suffered an order in the reference, cannot now raise it again before the Division Bench. Again, as we noticed the reference would have normally been unnecessary; but for the amendme....
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....t to permit the assessments to be completed, in the extended period. 12. Indian Performing Rights Society Ltd. was concerned with the question as to whether Section 62 of the Copyright Act, 1957 and Section 134(2) of the Trade Marks Act, 1999, non-obstante clauses, provided a departure from Section 20 of the Civil Procedure Code, in the matter of jurisdiction for institution of suits. There the appellant/plaintiff, on a cause of action which arose in Mumbai, where both the plaintiff and defendant ordinarily reside and carry on business; chose to institute the suit in Delhi for reason only of the plaintiff having a branch office in Delhi. Reading the provisions, the recommendations of the Joint Committee of the two Houses and the Parliamentary debates, the intention discernible was held to aid the injured, intending to initiate an action for infringement or passing off under either of the enactments and to drag the infringer to that Court which is most suited and convenient for the injured. It was held so in para 22: "22. If the interpretation suggested by the appellant is accepted, several mischiefs may result, intention is that the plaintiff should not go to far flung places th....
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....e? 3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th - The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. [Bengal Immunity Co. v. State of Bihar (supra)]." 13. The sine quo non for invoking the mischief rule is that the material words are capable of bearing two or more constructions and only if it is so capable, then the four tests can be applied. It is not as if the rule has to be applied in all cases where the legislature attempts to cure a defect in statute or provide for something which was earlier not available. Then the Courts will have to first speculate on the intention and apply the rule to remedy the perceived ills without reference to the words employed. This would be missing the woods for the trees. When the words of the statute are clear and unambiguous and the plain and na....