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State of Orissa Vs. Sahu and Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case Number S.J.C. Nos. 54 and 55 of 1973
Judge
Reported in[1975]35STC211(Orissa)
AppellantState of Orissa
RespondentSahu and Co.
Appellant Advocate The Standing Counsel (S.T.)
Respondent Advocate B.K. Mohanty and ; Ch. P.K. Misra, Advs.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........payment of such amount.by orissa act 15 of 1968, the following was added to sub-section (2) :or a crossed bank draft or a crossed cheque covering such amount and drawn in favour of the prescribed authority.sub-section (8) of that section provides :a rebate of one per centum on the amount of tax payable by a dealer shall be allowed, if such tax is paid by the dealer on or before the due date of payment.rule 36 of the orissa sales tax rules, 1947 (hereinafter referred to as the rules), makes provision for payment of tax before furnishing return thus :before furnishing to the sales tax officer or assistant sales tax officer a return or a revised return in form iv or a return in form iv-a for any return period, the dealer shall pay into the government treasury or by postal money order to.....
Judgment:

R.N. Misra, J.

1. The Sales Tax Appellate Tribunal has, at the instance of the State, referred the following question for determination of this court under Section 24(1) of the Orissa Sales Tax Act of 1947 (hereinafter referred to as the Act) :

Whether, on the facts and in the circumstances of the case, rebate under Section 13(8) of the Orissa Sales Tax Act, 1947, is admissible ?

We are concerned with the years ending 1967-68 and 1968-69. There is no dispute about the quantum of turnover and the assessment of tax. The entire dispute is confined to the claim of rebate as provided in Section 13(8) of the Act. The assessee's claim in regard to that rebate was rejected by the assessing officer and the rejection was upheld in the first appeal. The Tribunal has, however, deleted the additional demand by holding that the assessee was entitled to the rebate.

2. It is appropriate that we refer to the statutory provisions dealing with the question of rebate first:

13. Payment and, recovery of tax and penalty.-(1) Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals as may be prescribed.

(2) Before any dealer furnishes the returns required by Sub-section (1) of Section 11, he shall, in the prescribed manner, pay into a Government treasury the full amount of tax due from him under this Act according to such returns and shall furnish, along with the returns, a receipt from such treasury showing the payment of such amount.

By Orissa Act 15 of 1968, the following was added to Sub-section (2) :or a crossed bank draft or a crossed cheque covering such amount and drawn in favour of the prescribed authority.

Sub-section (8) of that section provides :

A rebate of one per centum on the amount of tax payable by a dealer shall be allowed, if such tax is paid by the dealer on or before the due date of payment.

Rule 36 of the Orissa Sales Tax Rules, 1947 (hereinafter referred to as the Rules), makes provision for payment of tax before furnishing return thus :

Before furnishing to the Sales Tax Officer or Assistant Sales Tax Officer a return or a revised return in form IV or a return in form IV-A for any return period, the dealer shall pay into the Government treasury or by postal money order to the Treasury Officer or through a crossed cheque or crossed bank draft drawn in favour of the Treasury Officer on the branch of the State Bank of India of that place where the Government treasury is situated the amount of tax or composition money shown in the return as payable by him for that period....

Certain modifications had been made in 1969 to this rule, but we are not concerned with them in view of the fact that the periods for which the dispute has arisen are anterior to the amendments. The assessee in this case has made the returns by the due dates and while doing so made payment of the admitted tax by cheque drawn on the United Bank of India. The Sales Tax Officer has been of the view that Rule 36 which provides the method of payment as required under Section 13(2) of the Act having not been complied with the assessee has not earned the rebate provided under Section 13(8) of the Act. The assessee's stand has been that within the time allowed by law he had furnished the return and enclosed a crossed cheque in respect of the admitted tax due. There was some delay on the part of the Sales Tax Officer in collecting the cheque, but that cannot be the consideration for disentitling the assessee of the rebate admissible under Section 13(8) of the Act.

3. Under the scheme of the law the admitted tax becomes payable within thirty days from the end of the return period. A grace period of a fortnight is admissible thereafter for filing of the return failing which the dealer exposes himself to be visited with penalty. Rebate as provided in Section 13(8) of the Act represents a matter of public policy. It is an encouragement to the taxpayer to make payment of the public dues (sales tax) in time and those that pay in time as required under the law become entitled to a rebate as provided in Section 13(8) of the Act. Admittedly the payment referred to in Section 13(8) must be in terms of Sub-section (2) of Section 13. Section 13 deals with a particular subject in the statute, namely, payment and recovery of tax and penalty. Sub-section (2) deals with the procedure and further prescription is made in Rule 36. It is well-settled that to get a benefit conferred by statute, which prescribes the procedure for becoming entitled to the benefit, the act must be done following the procedure indicated in the statute. If the law requires that the payment has to be made in a particular manner and by an appointed date, entitlement to the rebate can be earned only by complying with the particular requirements.

4. Mr. Mohanty for the assessee has taken the stand that where payment is made by a crossed cheque it need not be in favour of the Treasury Officer and also on a branch of the State Bank of India of that place where the treasury is situated. According to Mr. Mohanty that requirement is with reference to a crossed bank draft. We cannot agree with Mr. Mohanty's construction of Rule 36. According to us, different modes have been prescribed in that rule. They are : (1) payment into the Government treasury, (2) payment by postal money order to the Treasury Officer, (3) payment through a crossed cheque drawn in favour of the Treasury Officer on the branch of the State Bank of India of that place where the Government treasury is situated, and (4) payment by crossed bank draft drawn in favour of the Treasury Officer on the branch of the State Bank of India of that place where the Government treasury is situated. To accept the construction of Mr. Mohanty would lead to uncertainty. There would be no indication in the rule as to in whose favour the crossed cheque has to be drawn. As the crossed cheque and the bank draft have reference to the bank, the rule-making authority has put both the clauses together. It would, therefore, follow that the requirements of Section 13 and Rule 36 put together would be that the tax due must be paid on or before the due date by one of the four modes indicated above. Then only the entitlement under Section 13(8) of the Act to rebate would be acquired.

5. The delay on the part of the Sales Tax Officer to encash the cheque in the facts of this case is of no material consequence and the Tribunal has unnecessarily dilated upon it.

6. Our answer to the question referred, therefore, shall be :

On the facts and in the circumstances of the case, rebate under Section 13(8) of the Act was not admissible.' We make no direction as to costs.

B.K. Ray, J.

7. I agree.


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