1. Writ Petition No. 1446 of 1979 is filed for prohibiting the respondent from continuing the proceedings pursuant to the notice dated 2nd January, 1979, issued by him, and Writ Petitioner No. 1594 of 1979 is for the issue of writ of certiorari to quash the circular dated 26th August, 1978, of the respondent.
2. In Writ Petition No. 1446 of 1979, the petitioner has claimed as follows :
The petitioner-firm has been carrying on business in iron and steel for over twelve years, and right from the commencement it has been maintaining accounts in Gujarati language which has been accepted by authorities under the Tamil Nadu General Sales Tax Act, 1959 (hereinafter called the Act), as well as by the authorities under the Income-tax Act, 1961.
3. On 30th July, 1977, the respondent examined the books of account and found that they have been maintained in Gujarati language using Gujarati numerals. He held that use of Gujarati language was in order, but use of Gujarati numerals violated rule 26(1) of the Tamil Nadu General Sales Tax Rules, 1959 (hereinafter called the 'Rules'), besides being violation of rule 26(11) also, and levied a composition fee of Rs. 200.
4. The petitioner filed a revision petition to the Deputy Commissioner of Commercial Taxes, Madras, who held that rule 26(1) having been made within the scope of section 40(1) of the Tamil Nadu General Sales Tax Act, 1959, and the prescription in rule 26(11) being complimentary to section 40 of the Act; any violation of section 40 of the Act would attract the provisions of rule 26(1) also, and hence the petitioner had committed an offence punishable under section 45(2)(cc) of the Act. He set aside the composition order on the ground that the petitioner had not given his consent. Once again the respondent issued a notice on 2nd January, 1979, claiming that the petitioner had committed an offence by maintaining accounts by using Gujarati numerals, and therefore, it was open to him to compound the offence, failing which, prosecution would be launched. In the meanwhile, the Joint Commercial Tax Officer, Rattan Bazar Assessment Circle, had issued a general circular dated 26th August, 1978, requiring all dealers writing accounts in Gujarati, Marwari, Hindi, etc., languages other than English, to adopt only international numerals, failing which penal provisions would be enforced against them. The right to use Gujarati numerals having not been taken away under section 40(1) of the Act, rule 26, as amended in 1967, is beyond the rule-making power conferred under section 53 of the Act, and therefore, the petitioners are entitled to relief as claimed in these writ petitions.
5. In W.P. No. 1594 of 1979, it is the circular dated 26th August, 1978, which is challenged. Therefore the points involved in both the writ petitions are dealt with together.
6. Mr. K. Ramagopal, the learned counsel for the petitioner in both the writ petitions, would first contend that rule 26(1) as amended in 1967, requiring use of international numerals, is beyond the scope of section 40(1) of the Act, and therefore, it is beyond the rule-making powers conferred under the Act. In support of this contention, he relies on the following two decisions.
7. In Bimal Chandra Banerjee v. State of Madhya Pradesh : 81ITR105(SC) , it was held by the Supreme Court no tax can be imposed by any bye-law or rule or regulation unless the statute under which the subordinate legislation is made specially authorises the imposition of levy and that a rule-making authority has no plenary power and is bound to act within the circumscribed limits granted to it under the Act.
8. In Commissioner of Income-tax v. Taj Mahal Hotel : 82ITR44(SC) , it was held that the Indian Income-tax Rules, 1992, are meant only for the purpose of carrying out the provisions of the Act and they cannot take away what is conferred by the Act and or whittle down its effect.
9. It is undeniable and indisputable that unless the statutory provisions enable the rules to be framed, any rule which is beyond the scope of the section, will be ultra vires of the Act.
10. Section 40(1) of the Act was amended by amending Act 34 of 1981 to introduce certain words which will have no bearing on the point raised herein. The section as amended, enables an assessee to maintain the accounts in any of the languages specified in the Eighth Schedule to the Constitution or in English, showing such particulars as may be prescribed; and different particulars may be prescribed for different classes of dealers. There is no reference to the usage of numerals. It is only in the Rules, a provision is found relating to use of numerals. This amendment is claimed to have been made by G.O.P. No. 667, Revenue, dated 25th March, 1967. A copy of it is not produced before the court and hence reliance is placed on what is referred to in 1976 edition of the Act.
11. The first aspect to the considered is, whether numerals can be treated as part of language or stand apart from the language. Even in the Constitution, it as considered that the aspect of language and numerals, will have to be dealt with, and is doing so, Hindi, has been prescribed as the official language of the Union in Devanagari script. As for numerals to be used for the official purposes of the Union, it shall be the international form of Indian numerals, and that Parliament, notwithstanding what had been provided in article 343 of the Constitution, may by law provide after the said period of fifteen years of the ushering of the Constitution for the use of the English language or the Devanagari form of numerals. While dealing with the official language or languages of a State, in article 345, reference had been made only to languages, and there is total absence regarding the use of numerals.
12. When numerals have been chosen to be dealt with as a separate identity, it cannot be said that when languages are used, the right to use the same script is also provided for, as a constitutional right to be enforced. The dictionary meanings of 'language' and 'numerals' are to the following effect :
''Language' means a variety of speech or body of words and idioms, esp. that of a nation : mode of expression : diction : any manner of expressing thought or feeling : an artificial system of signs and symbols with rules for forming intelligible communications, etc.'
''Numeral' means 'pertaining to, consisting of, or expressing number'.' (vide Chambers's Twentieth Century Dictionary).
13. Hence, there is no scope for contending that when use of language is guaranteed under the Eighth Schedule to the Constitution and also under the Act a co-existing right to use the script of the same language has been provided for. Even in the Constitution, it will be interesting, to note that the aspect of use of numerals was confined only to the official purposes of the Union and a similar provision has not been made in respect of use of numerals for official purposes of the States. When numerals form a separate identity and certain rights conferred under the Constitution are confined only to use of languages, the petitioners herein cannot plead that any of their constitutional rights are violated by the respondent asking them not to use Gujarati numerals. The provision made in the Act being confined only to languages, the rule-making power exercised by the State has not gone beyond what has been provided on the aspect of language. The rights conferred in the section has not been taken away or whittled down in any manner.
14. When the right to use particular form of numerals in conjunction with a language is not guaranteed under the Constitutional for the official purposes of the States, and the Act having not dealt with it specifically, it has to be seen as to whether any section in the Act has enable a rule to be framed regarding the use of numerals. Apart from section 40(1) which refers to particulars to be prescribed, section 53(2)(n) enables rules to be framed regarding the manner in which accounts are to be maintained. Hence rule 26(1) requiring every assessee without exception to use international numerals in the maintenance of accounts is not beyond the rule-making powers conferred under the Act.
15. Testing on the touchstone of reasonableness, it is quite apparent that the assessee would not be handicapped when the prescribed numerals are of universal usage. If the Constitutional intent is looked into, article 343 provides that for the official purposes of the Union, the form of numerals to be used shall be the international form of Indian numerals. Being fully aware that several forms of numerals exist in this country, at the time of enacting the Constitution, it was considered that only Devanagari form of numerals require to be thought of, for replacing the international form of Indian numerals in course of time. When other forms of numerals have not been dealt with and not even thought fit to be considered, the present contention raised as if any right as claimed inheres in persons similarly placed as that of the petitioners, is without any substance.
16. The further contention is that, no numerals known as 'international numerals' exist and that the department is assuming that it represents Arabic numerals, and that no prosecution can be instituted, because the terms 'international numeral' is vague in concept; when article 343 of the Constitution itself had used the expression 'international form of Indian numerals', and when it is universally well-known, the claim made that there is no numeral known as international numerals, is an unreasonable one and is hereby rejected.
17. There is no requirement that in respect of every aspect, provision should be made in the enactment itself. The right to use Gujarati numerals not being a guaranteed right and even in the Constitution except for official purposes of the Union, even in respect of States, it had not been considered necessary to refer to the use of numerals; there is no need to provide for any such right on this aspect in the Act itself. This is an aspect which can be left to be dealt within the ambit of the rule-making powers conferred under the Act, and in the instant matter it forms part of what could be prescribed relating to maintenance of purchase bills or accounts of purchases and sales by dealers, as provided under section 53(2)(n) of the Act.
18. Hence for the reasons above stated, these writ petitions are dismissed. No costs.
19. Petitions dismissed.