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V. Lakshminarayana K.V. Raghavendra Rao and Co. and ors. Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Tax Revision Case Nos. 10, 12 to 17, 28, 30, 31 and 32 of 1971
Judge
Reported in[1973]30STC368(AP)
AppellantV. Lakshminarayana K.V. Raghavendra Rao and Co. and ors.
RespondentState of Andhra Pradesh
Appellant Advocate G.V.R. Mohan Rao and ;T. Raman, Advs.
Respondent Advocate P. Venkatarama Reddy, Adv. for ;the Fifth Government Pleader
DispositionPetition dismissed
Excerpt:
.....the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the..........authorities, as also before the tribunal, that their agents only are liable, and not they, the principals, in view of the express provisions of section 11 of the act.3. their plea having been rejected by the taxing authorities and the tribunal, they have raised this question in these revision petitions, which is common to all these petitions filed under section 22(1) of the act.4. thus, the only question of law which arises for our consideration is whether in view of section 11 of the act, additional tax payable under section 5-a in respect of sales effected by an agent on behalf of the principal can be assessed or levied against the principal ?5. before we scrutinise section 11 of the act in this regard, we would clarify the settled position of law that the additional tax on.....
Judgment:

K.V.L. Narasimham, C.J.

1. The petitioners in all these cases are resident-dealers who sold goods through their local commission agents, and have submitted certificates in respect of the said turnover to the effect that the tax due on the sales effected on their behalf has been paid by the commission agents. To the extent of the tax due under Section 5 of the Andhra Pradesh General Sales Tax Act (hereinafter to be referred to as the Act), they have been exempted from paying the tax in view of the certificates. But, in respect of the additional tax on the turnover payable under Section 5-A of the Act at the rate of 1 /4th paisa on every rupee of the turnover of Rs. 3,00,000 or more, the petitioners, who are the principals, have been assessed.

2. The petitioners have contended before the taxing authorities, as also before the Tribunal, that their agents only are liable, and not they, the principals, in view of the express provisions of Section 11 of the Act.

3. Their plea having been rejected by the taxing authorities and the Tribunal, they have raised this question in these revision petitions, which is common to all these petitions filed under Section 22(1) of the Act.

4. Thus, the only question of law which arises for our consideration is whether in view of Section 11 of the Act, additional tax payable under Section 5-A in respect of sales effected by an agent on behalf of the principal can be assessed or levied against the principal ?

5. Before we scrutinise Section 11 of the Act in this regard, we would clarify the settled position of law that the additional tax on turnover under Section 5-A of the Act is of the same character as the tax under Section 5 : vide Addepalli Surya Ramachandra Rao & Co. v. The State of Andhra Pradesh and Ors. [1969] 24 S.T.C. 133.

6. A further point which needs mention is that the principals are primarily liable to tax on their turnover, and Section 11 of the Act is only a convenient mode of collection of tax: vide Irri Veera Raju and Ors. v. Commercial Tax Officer, Tadepalligudem, and Anr. [1967] 20 S.T.C. 501.

7. We would now peruse Section 11, which is in the following terms:

Section 11. Liability of resident principal and his agent to pay tax.- The tax or penalty due under this Act, in respect of a transaction of sale or purchase effected by any agent on behalf of a principal who is a resident of the State shall be assessed or levied and collected from the agent, in every case where such principal would be otherwise liable to pay such tax or penalty in respect of that transaction. Where the agent has paid the tax or penalty in respect of such transaction he may, without prejudice to his other rights to recover from his principal such tax or penalty, retain out of the moneys payable to the principal, a sum equal to the amount of tax or penlaty so paid by him:

Provided that the tax or penalty assessed or levied on or due from the agent, may be recovered by the assessing authority from the principal, instead of from the agent.

Explanation.-Box the purposes of this section the expression 'agent' shall have the meaning assigned to the expression 'dealer' in Sub-clause (iv) of Clause (e) of Sub-section (1) of Section 2.

8. The learned counsel, Sri G.V.R. Mohan Rao, relies on the express language of the section and in particular the use of word 'shall' and seeks to interpret the section as mandatory. He would therefore say that the tax shall be assessed or levied and collected from the agent only. No doubt, prima facie it appears so, but there are other considerations bearing on the question of interpretation of this provision-whether it is mandatory or directory only. There are numerous cases where the word 'shall' has been construed as merely directory. Lord Esher, M. R., observed that the word ' 'shall' is not always obligatory. It may be directory' : vide In re Lord Thurlow; Ex parte Official Receiver [1895] 1 Q B. 724 at 729 (A.I.R. 1961 S.C. 1480 at 1485).

9. This rule of interpretation has been adopted by the Supreme Court in Sainik Motors v. State of Rajasthan A.I.R. 1961 S.C. 1480. It is not so interpreted if the context or the intention otherwise demands. The same rule of interpretation is evident from Raza Buland Sugar Co., Ltd., Rampur v. The Municipal Board, Rampur A.I.R. 1965 S.C. 895. This is what occurs at page 899 :

The question whether a particular provision of a statute which on the face of it appears mandatory-inasmuch as it uses the word 'shall' as in the present case-or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making, the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the Legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.

10. Now, bearing these principles of interpretation if we read the provision, we see that the latter part of Section 11 says that where the agent has paid such tax, he could recover the same from his principal. It is also very significant to see the proviso, which contemplates the recovery of tax from the principal instead of from the agent. It says that what is due from the agent may be recovered from the principal instead of from the agent. We recall that the effect of a qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment or to qualify something enacted therein, which but for the proviso would be within it. [Vide Craies on Statute Law (6th Edition) at page 217 under the caption 'construction of provisos'.] The section and the proviso would bear out a reasonable interpretation that the tax, which shall be assessed or levied and collected from the agent, could still be recovered by the assessing authority from the principal instead of from the agent. The express language of the section provides for the agent who has paid tax to recover it from the principal. This section has to be read in the context of the principal's primary liability, and the recovery from the agent being only 'a convenient mode of collection of tax'. Can it therefore be said that by use of the word 'shall' in Section 11, the agent alone was made exclusively liable for the assessment, levy and collection of the tax It is abundantly clear to us that the principal himself is not exonerated and he continues to be primarily liable. Further, we agree with the learned Government Pleader that Section 11 is a machinery to effectuate the charging Sections 5 and 5A; and the purpose of the machinery is to effectuate the charging sections, (vide Commissioner of Income-tax, Bengal v. Mahaliram Ramjidas [1940] 8 I.T.R. 442 at 448.) The provision has to be interpreted in a way that the machinery is workable. We also think that there is some force in the contention of the learned Government Pleader that if the principals are sought to be exempted under Section 11, there would be likely tax evasion as the business carried on through the agents may not reach the turnover exigible to additional tax, whereas a principal through his agents would be carrying on business reaching a turnover exigible to such tax. There has been some amount of debate as to the distinct legal meaning attributable to the terms 'assessment', 'levy' and 'collection', but for the purpose of this case, it is not necessary to discuss that aspect of the matter. Having regard to the accepted rules of interpretation, the provisions of the enactment which impose a primary liability on the principal, and that Section 11 has been interpreted as 'a convenient mode of collection of tax', we are of the view that 'shall' in the section shall be construed only as directory and not as mandatory. In this view, we cannot possibly accede to the contention of Sri G.V.R. Mohan Rao that under Section 11 the principal cannot be assessed for the additional tax under Section 5-A. The learned counsel has submitted that in these cases the agents have, in fact, paid additional tax under Section 5-A, but it is a matter for verification by the taxing authorities. In view of the submission, we would, while upholding the assessments made on the principals, direct that the Assistant Commissioner of Commercial Taxes, Guntur, may receive proof of such payment and revise the assessments, if necessary, accordingly. In the result, the point raised before us is held against the petitioner-principals and they will have only the limited relief as stated by us for adducing proof of payment by their agents on the various transactions in regard to the additional tax under Section 5-A. The revision cases are otherwise dismissed with costs. Advocate's fee Rs. 50 in each.


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