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Hira Lal JaIn and Co. Vs. the Sales Tax Officer 12 and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Nos. 51, 84, 212, 215, 216 and 244 of 1980
Judge
Reported in[1982]50STC85(All)
AppellantHira Lal JaIn and Co.
RespondentThe Sales Tax Officer 12 and anr.
DispositionPetition dismissed
Excerpt:
- - state of maharashtra 1975 uptc 378 (sc), the question arose as to whether the provisions of the state act relating to penalty for delayed payment of tax could be resorted to for purposes of imposition of penalty for a like act under the central sales tax act. these provisions in some cases are also for failure to submit return or failure to register. the context of the whole sales tax law of the state as well as that of the law contained in the central act must be taken into account. after considering the provisions of the central act as well as the state acts relating to penalties, one is irresistibly driven to the conclusion that provisions relating to penalties are special and specific provisions in each act......are the only provisions for penalty available against the dealers under the central act. each state sales tax act contains provisions for penalties. these provisions in some cases are also for failure to submit return or failure to register. it is rightly said that those provisions cannot apply to dealers under the central act because the central act makes similar provisions. the central act is a self-contained code which by charging section creates liability for tax and which by other sections creates a liability for penalty and imposes penalty. section 9(2) of the central act creates the state authorities as agencies to carry out the assessment, reassessment, collection and enforcement of tax and penalty payable by a dealer under the act.8. beg, j., as he then was gave a separate.....
Judgment:

C.S.P. Singh, J.

1. The petitioner submitted his quarterly returns for the assessment ear 1975-76 for purposes of assessment under the Central Sales Tax Act. The Sales Tax Officer by order dated 21st March, 1980, assessed the turnover at Rs. 2,30,350, and imposed tax of Rs. 8,324.05. He found that an amount of Rs. 2,123 had been deposited by the dealer, and an amount of Rs. 6,201.05 remained unpaid. He accordingly directed a demand notice to be issued for the sum. The dealer in the course of the assessment had taken up the stand that a larger amount of tax had been paid by him, but the Sales Tax Officer found that there was nothing on the record to substantiate this allegation. He, however, directed that on the dealer furnishing proof of payment of a larger amount of tax, he would be given benefit of it. A direction was given for charging two per cent interest on the shortfall of tax on the admitted turnover as from 9th September, 1976.

2. The petitioner has challenged the imposition of interest on various grounds. The first ground taken is that the Sales Tax Officer did not give credit for the amount of tax deposited by him. There is a clear direction in the order of the Sales Tax Officer that in case the assessee furnishes proof of payment of larger amount of tax, he would be given relief to that extent. This being so, we do not consider it proper to go into this question specially in view of the fact that the payment of a larger amount of tax than that disclosed in the order of the Sales Tax Officer, has been denied in the counter-affidavit. The counsel also challenged the vires of Section 8(1) of the U. P. Sales Tax Act, but for the reasons given in Karsandas and Brothers v. State of U. P. [Writ Petition No. 247 of 1980 (Tax)] [1982] 50 STC 82 decided by us we negative this contention. As regards the challenge to Section 8(1) based on Article 19 and Article 31 of the Constitution, no argument has been addressed to us on this score.

3. The main contention is that inasmuch as there is no provision in the Central Sales Tax Act for the charge of interest the Sales Tax Officer had no jurisdiction to impose interest on the balance amount of arrears of tax by resort to Sections 8(1) and 8(1-B) of the U. P. Sales Tax Act. This contention has to be tested with reference to Section 9(2) of the Central Sales Tax Act. Section 9(2) was amended by the Central Sales Tax (Amendment) Act, 1976 (Act No. 103 of 1976), and came into force on 9th September, 1976. Section 6(b) of the Amendment Act was in the following terms :

6. (b) In Sub-section (2), before the words 'compounding of offences', the words 'charging or payment of interest,' shall be inserted and shall be deemed always to have been inserted.

4. Section 9(4) which purports to be a validating provision was to the following effect:

9. (4) Any interest charged or paid or purporting to have been charged or paid, and any proceeding, act or thing taken or done or purporting to have been taken or done for charging or paying any interest, under the provisions of the general sales tax law of any State read with Section 9 of the principal Act, before the commencement of this Act, shall be deemed to be and to have always been as validly charged, paid, taken or done as if the amendment made by Clause (b) of Section 6 had been in force when such interest was charged or paid or when such proceeding, act or thing was taken or done.

Explanation.-For the purposes of this section, 'general sales tax law' shall have the same meaning as in the principal Act.

5. The counsel for the assessee contended that the interest charged under Sections 8(1) and 8(1-B) of the U. P. Sales Tax Act cannot be charged for assessments made under the Central Sales Tax Act notwithstanding the amendment effected in the Central Act by Act No. 103 of 1976 for the reason that there is no specific provision in the Central Sales Tax Act for charge of interest on admitted unpaid arrears of tax. In this connection he drew our attention to the cases of Khemka and Co. (Agencies) Pvt. Ltd. v. State of Maharashtra 1975 UPTC 378 (SC), Commissioner of Sales Tax, U.P. v. Sada Nand Arya, Coal Depot, Aligarh 1979 UPTC 816 and Beni Ram Modi Chand v. Sales Tax Officer, Fatehgarh [1969] 23 STC 423.

6. The standing counsel on the other hand contended that as after the retrospective amendment effected in Section 9(2), and in view of Section 9(4) of the Amendment Act, the principles laid down in the cases relied upon by the petitioner do not apply.

7. In Khemka and Co. (Agencies) Pvt. Ltd. v. State of Maharashtra 1975 UPTC 378 (SC), the question arose as to whether the provisions of the State Act relating to penalty for delayed payment of tax could be resorted to for purposes of imposition of penalty for a like act under the Central Sales Tax Act. A. N. Ray, C. J., with whom Khanna, J., agreed, observed in page 385 (pages 581, 582 of 35 STC) of the Reports:

Penalty is not merely sanction. It is not merely adjunct to assessment. It is not merely consequential to assessment. It is not merely machinery. Penalty is in addition to tax and is a liability under the Act. Reference may be made to Section 28 of the Indian Income-tax Act, 1922, where penalty is provided for concealment of income. Penalty is in addition to the amount of income-tax. This court in Jain Brothers v. Union of India : [1970]77ITR107(SC) said that penalty is not continuation of assessment proceedings and that penalty partakes of the character of additional tax.

* * *For the foregoing reasons we are of opinion that the provisions in the State Act imposing penalty for non-payment of income-tax (sic) within the prescribed time is not attracted to impose penalty on dealers under the Central Act in respect of tax and penalty payable under the Central Act. There is no lack of sanction for payment of tax. Any dealer who would not comply with the provisions for payment of tax would be subjected to recovery proceedings under the Public Demands Recovery Act. A penalty is a statutory liability. The Central Act contains specific provisions for penalty. Those are the only provisions for penalty available against the dealers under the Central Act. Each State Sales Tax Act contains provisions for penalties. These provisions in some cases are also for failure to submit return or failure to register. It is rightly said that those provisions cannot apply to dealers under the Central Act because the Central Act makes similar provisions. The Central Act is a self-contained code which by charging section creates liability for tax and which by other sections creates a liability for penalty and imposes penalty. Section 9(2) of the Central Act creates the State authorities as agencies to carry out the assessment, reassessment, collection and enforcement of tax and penalty payable by a dealer under the Act.

8. Beg, J., as he then was gave a separate but concurring judgment observed in page 392 (page 597 of 35 STC):

It has to be remembered that Section 9(2) of the 1956 Act, which corresponds to Section 9(3) after 1958, begins with 'subject to the other provisions of this Act and the Rules made thereunder, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall....' In other words, the powers of the State Sales Tax Officers are specifically limited by the provisions of the Central Act. They cannot go beyond these provisions. The next part of Section 9(2) of the 1956 Act further emphasises this aspect by making it clear that these powers are exercisable only 'for this purpose'. In other words, they are not authorised to collect dues for purposes extraneous to the Central Act. We may then go to the last part of Section 9(2) of the 1956 Act, which is strongly relied upon on behalf of the States concerned, to urge that the State provisions relating not merely to collection of taxes but imposition of penalties are incorporated by reference into the provisions of the Central Act. In this debatable area, I think the true meaning can only .be found by considering the provisions as a whole. The context of the whole sales tax law of the State as well as that of the law contained in the Central Act must be taken into account.

After considering the provisions of the Central Act as well as the State Acts relating to penalties, one is irresistibly driven to the conclusion that provisions relating to penalties are special and specific provisions in each Act. They are not part of the 'general sales tax law' of either the State or of the Union. If the provisions relating to penalties, such as those found in the Central Act and the State Acts, are really special provisions which can be invoked in the special circumstances given in each statute, we must interpret the reference to penalties in the concluding portion of Section 9(2), preceding the proviso, to relate only to the special provisions relating to penalties provided for specifically in the Central Act.

9. In the case of Beni Ram Moot Chand v. Sales Tax Officer [1969] 23 STC 423, it was held that interest charged under Section 8(1-A) is supplementary tax, and such interest on the arrears of the Central Sales Tax Act cannot be charged notwithstanding Section 9(3) of the Central Act.

10. So far as these judgments are concerned they undoubtedly support the contention of the petitioner. The question arises as to whether on account of retrospective amendment effected in Section 9(2) of the Central Sales Tax Act by the Central Sales Tax (Amendment) Act, 1976, the position has changed. We have already extracted Section 9(2) of the Central Sales Tax Act and have also quoted Section 6(b) and Section 9(4) of the Central Sales Tax (Amendment) Act, 1976 (Act No. 103 of 1976). Now Section 9(4) of the amending Act validates charge of interest under the provisions of the State law, and seeks to rest the validity of such charge on the amendment effected in Section 9(2) by Section 6(b) of the Amendment Act. It is settled that a validating Act in order to be effective must not only declare certain acts to have been validly done, but must also obliterate the lacuna and fill up the omission in the statute so as to protect the validity of the purported action. One has, therefore, to look at Section 9(2) as amended in order to be as to whether the validating Act has achieved the purpose. The part of Section 9(2) which begins with the words 'and the provisions of such law, including provisions relating to...charging or payment of interes...shall apply accordingly', seems to achieve this result.By the amendment, the provisions for charging or payment of interest which are to be found in Sections 8(1) and (1-B) of the State law, have been adopted by the Central statute. The word 'charging' introduced in Section 9(2) of the Central Act, permits the charging provisions of Section 8(1) and (1-B) to have full play. In this view of the matter it is not necessary to consider as to whether the decisions relating to penalty, which have been referred to earlier can be distinguished on the ground that the provisions for imposition of penalty under the State Act are inapplicable, inasmuch as Section 10 of the Central Sales Tax Act contains an exhaustive enumeration of the grounds on which penalty can be imposed.

11. We, accordingly, dismiss the petition and discharge the stay order. Parties to bear their own costs. This order will also govern Writ Petition No. 51 of 1980, Writ Petition No. 84 of 1980, Writ Petition No. 212 of 1980, Writ Petition No. 215 of 1980 and Writ Petition No. 216 of 1980.


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