Skip to content


Commissioner of Sales Tax Vs. Bombay Company Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSales Tax Reference No. 168 of 1976
Judge
Reported in[1979]43STC261(Bom)
ActsBombay Sales Tax Act, 1959 - Sections 7, 21, 21(1), 21(2), 22, 33, 33(3), 33B(2), 35, 35(1), 36, 36(2), 36(2) and 61(1); Uttar Pradesh Trade Tax Act, 1948 - Sections 3 and 3D
AppellantCommissioner of Sales Tax
RespondentBombay Company Pvt. Ltd.
Appellant AdvocateR.A. Dada, Adv. and ;N.H. Gursahani, Government Pleader
Respondent AdvocateP.V. Surte, ;S.P. Surte and ;C.B. Nikale, Advs.
Excerpt:
.....in such holding. - - 5,000 imposed by the sales tax officer and confirmed by the assistant commissioner of sales tax was bad in law and the tribunal set aside the imposition of the said penalty. up to 30th june, 1965, sub-section (2) of section 36 of the said act read thus :(2) if, while assessing the amount of tax due from a dealer under section 33, it appears to the commissioner that such dealer -(a) has wilfully failed to apply for registration as required by section 22; or (b) has, without reasonable cause, failed to comply with the notice under sub-section (3) of section 33; or (c) has concealed the particulars of any transaction or deliberately furnished inaccurate particulars of any transaction liable to tax, the commissioner may, after giving the dealer on opportunity of..........bombay sales tax act, 1959 (hereinafter referred to as 'the said act'), made at the instant of the commissioner of sales tax. the question referred to us for our determination is as follows : 'having regard to the facts and circumstances of the case, whether the tribunal was justified in law in holding that the penalty was not legally leviable under the provisions of section 36(2)(c) of the bombay sales tax act, 1959 ?'2. the facts giving rise to this reference are as follows : the assessee, a private limited company, is a dealer registered under the said act. in respect of the assessment period 1st august, 1964, to 31st march, 1965, the assessee was assessed on 13th august, 1969, by the sales tax officer, a ward, bombay. later on the said sales tax officer found that certain deductions.....
Judgment:

Kania, J.

1. This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as 'the said Act'), made at the instant of the Commissioner of Sales Tax. The question referred to us for our determination is as follows :

'Having regard to the facts and circumstances of the case, whether the Tribunal was justified in law in holding that the penalty was not legally leviable under the provisions of section 36(2)(c) of the Bombay Sales Tax Act, 1959 ?'

2. The facts giving rise to this reference are as follows : The assessee, a private limited company, is a dealer registered under the said Act. In respect of the assessment period 1st August, 1964, to 31st March, 1965, the assessee was assessed on 13th August, 1969, by the Sales Tax Officer, A Ward, Bombay. Later on the said Sales Tax Officer found that certain deductions were wrongly allowed in computing the taxable turnover of the assessee in respect of sales effected against form 14. The Sales Ta Officer, therefore, issued a notice of reassessment in form 28. Although the date does not appear on the record it is common ground that this notice was issued on 4th March, 1970. On 20th October, 1970, the Sales Tax Officer passed an order of reassessment under section 35 of the said Act and imposed on the assessee a penalty of Rs. 5,000 under section 36(2)(c) of the said Act. The assessee preferred an appeal against the said order, but the same was dismissed by the Assistant Commissioner of Sales Tax. The assessee then went by way of second appeal to the Sales Tax Tribunal. The Tribunal allowed the said appeal holding that the penalty of Rs. 5,000 imposed by the Sales Tax Officer and confirmed by the Assistant Commissioner of Sales Tax was bad in law and the Tribunal set aside the imposition of the said penalty. It is from this decision of the Tribunal that the aforesaid question has been referred to us.

3. In order to appreciate the controversy raised before us, it is necessary to bear in mind the provisions of sub-section (2) of section 36 of the said Act, as it stood at the relevant time. The period under assessment was from 1st August, 1964, to 31st July, 1965, as already stated earlier. Up to 30th June, 1965, sub-section (2) of section 36 of the said Act read thus :

'(2) If, while assessing the amount of tax due from a dealer under section 33, it appears to the Commissioner that such dealer -

(a) has wilfully failed to apply for registration as required by section 22; or

(b) has, without reasonable cause, failed to comply with the notice under sub-section (3) of section 33; or

(c) has concealed the particulars of any transaction or deliberately furnished inaccurate particulars of any transaction liable to tax,

the Commissioner may, after giving the dealer on opportunity of being heard, by order in writing, impose upon the dealer by way of penalty, in addition to any tax assessed under section 33, a sum not exceeding one and one-half times the amount of the tax.'

4. By Maharashtra Act 29 of 1965 this sub-section was amended with effect from 1st July, 1965. It is not necessary to set out here in full the said sub-section as amended. It is sufficient to notice that by the said amendment the word 'deliberately' used in clause (c) of sub-section (2) of section 36 was substituted by the word 'knowingly' and an explanation was added to the said sub-section. That explanation runs as follows :

'Explanation. - Where a dealer furnishing returns has been assessed by the Commissioner under sub-section (3) or (4) of section 33 or reassessed under clause (b) of sub-section (1) of section 35 and the total amount of tax paid by the dealer for any year is found to be less than eighty per cent. of the amount of tax as so assessed or reassessed then, for the purpose of clause (c), he shall be deemed to have concealed the turnover, or knowingly furnished inaccurate turnover liable to tax, unless he proves to the satisfaction of the Commissioner that the payment of a lesser amount of tax was not due to gross or wilful neglect on his part.'

5. Sub-section (2) of section 36 of the said Act has been again amended as from 1st September 1969, but it is not necessary to set out that amendment for the purpose of this reference. The submission of Mr. Dada, the learned counsel for the department, is that the expression 'assessing' used in the opening part of sub-section (2) of section 36 of the said Act, both before and after the amendment thereof by the said Maharashtra Act 29 of 1965, is an expression of wide import and would include within its ambit the process of reassessment under section 35 of the said Act. It was further submitted by him that the explanation to section 36(2) of the said Act, which has been introduced by the said Maharashtra Act 29 of 1965, indicates that a wide meaning has to be given to the said expression 'assessment' so as to include therein the process of reassessment under section 35 of the said Act. It was urged by him that unless this is done, the expression 'or reassessed under clause (b) of sub-section (1) of section 35' used in the explanation would be rendered redundant, because in spite of the same, the provisions of sub-section (2) of section 36 of the said Act would not come into play at all in a case of reassessment under section 35 of the said Act. We find it difficult to accept these submissions of Mr. Dada. If the word 'assessing' had stood by itself in the opening part of sub-section (2) of section 36 of the said Act, it might have been possible to urge with some justification that the said word should be given a wide import so as to include the process of reassessment within its ambit, although we express no opinion as to whether such a contention would be ultimately upheld. In the present case, however, the expression used in the opening part of sub-section (2) of section 36 of the said Act, both before and after its amendment on 1st July, 1965, is 'while assessing the amount of tax due from a dealer under section 33,'. This makes it clear beyond any doubt that what is intended to be referred to is the process of assessment under section 33 of the said Act. Now, as far as reassessment is concerned, that topic has been dealt with in a different section of the said Act, viz., section 35 of the said Act. If the legislative instant wa to give a wider meaning to the word 'assessing' in the opening part of sub-section (2) of section 36 of the said Act, as urged by Mr. Dada, it is inconceivable that there would have been referred to section 33 in the manner aforestated. The notions of assessment and reassessment are distinct under the said Act and have been dealt with by different sections, viz., section 33 and 35 respectively. In these circumstances, it is clear that when reference has been made to section 33 in connection with the word 'assessing' in the opening part of sub-section (2), the legislative intention must have been to confine the scope of the provision to assessment under section 33 of the said Act. The main contention of Mr. Dada was based on the circumstances that if the word 'assessing' is not interpreted in the manner canvassed for by him, the expression 'or reassessed under clause (b) of sub-section (1) of section 35' used in the explanation to section 36(2) of the said Act would be rendered redundant, as we have already set out earlier. It was urged by him that it was possible to extend the scope of the main provision by an explanation to the same. In support of this submission, Mr. Dada referred us to the decision of the Supreme Court in Hira Lal Rattan Lal v. Sales Tax Officer : [1973]2SCR502 . The facts in that case are significant. Section 3 of the Uttar Pradesh Sales Tax Act, 1948, provided for the levy of multi-point sales tax. Section 3-D provided for a single point tax at the stage of first purchase by a dealer in respect of food grains and certain other goods and enabled the State Government to notify such goods. By a notification dated 1st October, 1964, 'food grains' were specified under section 3-D for single point tax at the stage of first purchase. The sales tax authorities sought to bring to tax, on the basis of section 3-D and the notification, the first purchases of processed or split food grains including dal on the ground that they constituted a separate item quite independent of the unprocessed or unsplit food grains. The Allahabad High Court, in Tilok Chand Prasan Kumar v. Sales Tax Officer, Hathras, District Aligarh [1970] 25 S.T.C. 118., held that such a levy was invalid. After that decision, the U.P. Sales Tax (Amendment and Validation) Act, 1970, replacing an Ordinance, was passed, and explanation II was added to section 3-D(1) providing that 'split or processed food grains ...... shall be deemed to be different from unsplit or unprocessed food grains' and that nothing in sub-section (1) 'shall be construed to prevent the imposition, levy or collection of the tax in respect of the first purchases of split or processed food grains merely because tax had been imposed, levied or collected earlier in respect of the first purchases of those food grains in their unsplit or unprocessed form'. Section 7 of the amending Act also validated earlier levies and declared notifications issued under section 3-D to be deemed to have been issued under the Act as so amended. The appellants challenged the validity of explanation II to section 3-D(1) of the Act of 1948 and section 7 of the amending Act of 1970 by way of writ petitions. These writ petitions were dismissed by the High Court. On appeal, the Supreme Court, inter alia, held that the legislature was competent to separate processed or split food grains from unsplit or unprocessed food grains and treat them as two separate and independent goods and that by enacting the amending Act, the legislature had not usurped judicial power but had only made its legislative intent clear. In our view, this decision is not really helpful to Mr. Dada at all. It is true that in a given case an explanation may enlarge the scope of the main provision to which it is attached, but such a thing is not to be readily inferred. In the aforesaid case before the Supreme Court, the explanation was one which gave an artificial definition and it is possible that such an explanation may enlarge the scope of the main provision to which it is attached by reason of the definition artifically given. The explanation to section 36(2) of the said Act, with which we are concerned, however, is not an explanation of this type at all but merely an explanation which enunciates a rule of evidence. In the case of such an explanation, it cannot be readily inferred that the intention of the legislature in introducing the explanation was to enlarge the scope of the main provision. Moreover, it may be noticed that even as far as this explanation is concerned, it has come into effect only from 1st July, 1965, and is not relevant at all to the consideration of the position in the first three quarters of the assessment period.

6. Mr. Dada next sought to place reliance upon the decision of a Division Bench of this Court in Commissioner of Income-tax v. Kishoresinh Kalyansinh Solanki : [1960]39ITR522(Bom) , where it was held that the words of section 33B(2)(b) of the Indian Income-tax Act, 1922, though wide in the abstract, must be read as used with reference to an order made by the Commissioner in revision suo motu and the period of limitation prescribed by the provision did not apply to an order passed by the Commissioner in pursuance of an order or direction of any higher authority. On this basis it was held that the rule of limitation prescribed by section 33B(2)(b) did not reach the second order passed by the Commissioner in that case as per the direction of the Appellate Tribunal. It has been held in that case that the true meaning of any passage in a statue is that which best harmonises with the object and each passage of the statute, and the court should ordinarily and as far as possible see that the interpretation it puts on a particular provision makes a consistent enactment of the whole statute. Where the main object and intention is clear, it must not be reduced to a nullity by the draftsman's unskilfulness. The court will read not only the particular provision but also allied and cognate provisions as forming a connected scheme and not treat them as detached provisions. This does not militate in any way against the well-established canon of construction that a fiscal enactment should be construed strictly and in favour of the subject. Even this case is not helpful in the decision of the case before us, before it is based on the interpretation of a different provision which came up for consideration in that case, viz., section 33B(2) of the Indian Income-tax Act, 1922. In order to appreciate the ratio of that case, it is necessary to bear in mind that following observations in the said judgment of the Division Bench :

'A casus omissus is not to be supplied because it is a strong thing to read words in a statute which are not there except in the case of clear necessity and when clear reason for it is to be found in the four corners of the statute itself. Nor should a casus omissus be readily inferred.'

7. This decision undoubtedly lays down that a particular provision in an Act must be read together with allied and cognate provisions as forming a connected scheme and should not be treated as a detached provision. The case equally makes it clear that it is not for the court to supply the omissions made by the legislature in drafting a particular Act. In the present case, what Mr. Dada's submission really amounts to is that after the expression 'while assessing the amount of tax due from a dealer under section 33' in sub-section (2) of section 36 of the said Act, we should read into the provision 'or under section 35' or to be more accurate, the words 'or while reassessing the amount of tax due from a dealer under section 35'. This, we are afraid, is clearly not permissible for us to do. Mr. Dada next relied upon the decision of the Supreme Court in Commissioner of Wealth-tax v. Kripashankar Dayashanker Worah : [1971]81ITR763(SC) . The question there related to the construction of section 21 of the Wealth-tax Act, 1957, as it stood before its amendment in 1964. In interpreting the said section the Supreme Court held that for the purpose of that section the trustee held the trust properties 'on behalf of' others within the meaning of section 21(1) of the Wealth-tax Act and the respondent was assessable to wealth-tax in respect of the trust properties. It was held that the conception that the trustee is holding the trust property on behalf of others may not be in conformity with the legal position as contemplated by the Trusts Act, but the legislature is competent in the absence of any restrictions placed on it by the Constitution to give its own meaning to the words used by it in a statute. Parliament while enacting section 21(2) of the Wealth-tax Act, 1957, proceeded on the basis that for the purposes of the Act the trustee is holding the trust property on behalf of the beneficiaries. It was observed that if the intention of the legislature was clear and beyond doubt then the fact that the provision could have been more artistically drafted cannot be a ground to treat any part of a provision as otiose, for so long as the intention of the legislature is clear and beyond doubt, the courts have to carry out that intention. This decision also is not of any assistance to Mr. Dada. The question in that case was not that any word should be read into section 21(2) of the Wealth-tax Act, but whether it was open to the legislature when enacting that section to have proceeded on the basis that for the purpose of the Wealth-tax Act the trustee is holding the trust property on behalf of the beneficiaries. This, it is clear, the legislature could undoubtedly do. The Supreme Court in that case was not called upon to read any words into a section as is required of us by Mr. Dada in the present case.

8. As against the aforesaid decisions relied on by Mr. Dada, reference can also be made to some decisions which support the view that it is not open to the court to read words into a statute which the legislature has omitted to put save and except in very exceptional cases. James, L.J., in delivering the opinion of the Judicial Committee in Dyke v. Elliott LR. 4 P.C. 184, has observed as follows :

'....... No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.'

9. In Magor and St. Mellons Rural District Council v. Newport Corporation [1952] A.C. 189 (H.L.), it has been held by the House of Lords that in the construction of a statute the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in any gaps disclosed. To do so is to usurp the power of the legislature. The principles laid down in these decisions will have to be borne in mind in interpreting the provisions of sub-section (2) of section 36 of the said Act, as it stood at the relevant time.

10. As we have already pointed out, in our view, the expression 'while assessing the amount of tax due from a dealer under section 33' used in sub-section (2) of section 36 of the said Act has been used so as to include within its scope only the process of assessment of tax under section 33 and not so as to include the process of reassessment under section 35 of the said Act. Merely by reason of the fact that there is reference to reassessment in the explanation a wider meaning cannot be given to the plain words of sub-section (2) of section 36 of the said Act, which we have referred to earlier. Apart from this, as we have already pointed out, for the first three quarters of the year in question the explanation, on which strong reliance was placed by Mr. Dada, was not even in existence. Even after the explanation was added, it appears to us that a larger meaning cannot be given to the word 'assessing' used in sub-section (2) of section 36 of the said Act as suggested by Mr. Dada because that would really involve adding of words in this sub-section. Moreover, if Mr. Dada's submission in this regard were correct, it would imply that at the time the explanation was enacted the legislative intent was to enlarge the scope of sub-section (2) of section 36. It this was so, one fails to see why the main portion of sub-section (2) of section 36 was not suitably amended.

11. It may be pointed out that prior to the amendment of section 35 of the said Act by Maharashtra Act 32 of 1972 it was required that before any proceedings under that section were initiated a notice containing all or any of the requisitions which may be included in a notice a under sub-section (3) of section 33 of the said act was required to be served on a dealer. It could, therefore, have been said that there was some similarity regarding the process of assessment under section 33 and the process of reassessment under section 35 of the said Act. However, by the said Maharashtra Act 32 of 1972 the provisions of section 35 of the Act have been amended retrospectively and it is now provided that all that is required for reassessment is that before reassessment a reasonable opportunity must be given to a dealer to be heard and the requirement of the notice as set out earlier has been deleted. In view of this, the process of reassessment under section 35 is now different at least in one important particular from the process of assessment under section 33 of the said Act and this further suggests that the expression 'while assessing the amount of tax due from a dealer under section 33' used in sub-section (2) of section 36 of the said Act cannot be interpreted so as to include the process of reassessment under section 35 as submitted by Mr. Dada.

12. There is also one other circumstance which lends support to the view we are taking as aforesaid. By Maharashtra Act 40 of 1969 sub-section (2) of section 36 of the said Act has been amended. The opening part of the said sub-section now reads thus :

'(2) If, while assessing or reassessing the amount of tax due from a dealer under any provisions of this Act or while passing any order in any appeal or revision proceedings, it appears to the Commissioner that such dealer -'

13. It, therefore, appears that the legislature itself has realised the omission which had remained earlier as a result of which reassessment proceedings under section 35 of the said Act were not covered by sub-section (2) of section 36 of the said Act.

14. Before parting with the case, we may mention one other matter. At the hearing of the second appeal before the Sales Tax Tribunal, the Government agent, who appeared on behalf of the department, accepted the position that the amendment to section 36(2)(c) of the said Act with effect from 1st September, 1969, to which we have already referred ealier, could not apply to the proceedings in question. In view of this, no submission has been made before us on the footing that, in the present case, the provisions of sub-section (2) of section 36 of the said Act as amended by Maharashtra Act 40 of 1969 have any applicability and we are not called upon to consider the validity of any such submission.

15. In the result, the question referred to us is answered in the affirmative. The applicant must pay to the respondent the costs of this reference.

16. Reference answered in the affirmative.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //