9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (3) TMI 226 - HC - VAT and Sales TaxInterpretation of statute - non-obstante clause - Levy of purchase tax under Section 12 of the Tamil Nadu Value Added Tax, 2006 - exemption granted on the basis of the turnover of a dealer - conditional exemption or not - HELD THAT - The non-obstante clause contained in Section 12 of the TNVAT Act, is limited in its operation only with reference to definition of Input Tax Credit under Section 2(24) of the TNVAT Act. Apparently, there was an need to provide for a non-obstante clause with reference to Sub-section (24) to Section 2 of the TNVAT Act, inasmuch as input tax was defined to mean tax paid by a registered dealer to another registered dealer on the purchase of goods. However in the case of purchase tax under Section 12 of the TNVAT Act, the taxes are not paid by the purchasing dealer to the selling dealer instead the levy/ charge is on the purchasing dealer and he is required to discharge the obligation/liability. But for the non-obstante clause in sub-section (2) to Section 12 of the TNVAT Act the taxes paid under section 12 of TNVAT Act may not qualify as Input Tax Credit within the meaning of Section 2(24) of the TNVAT Act. As a matter of fact, there are provisions under the TNVAT Act which provides for a non-obstante clause which are much wider in its scope and operation. It may also be relevant to note that there are instances/provisions under the TNVAT Act where the legislature intended to give an over-riding effect over more than one provision, it had been expressly provided for as would be evident if one gleans through the TNVAT Act. Statue to be Constructed to make it Effective and Workable - HELD THAT - A statute or any enacting provision therein must be so construed as to make it effective and operative. If one construes the non-obstante clause in sub-section (2) to Section 12 as extending to Section 19 which governs the conditions for claiming input tax credit, it would result in taxes paid under Section 12 of the TNVAT Act, being automatically available as credit thereby neutralizing the charge and thus the provisions meaningless. The above construction thus ought to be avoided. Avoiding additional or substitution of words/Judicial Legislation - HELD THAT - The attempt by the revenue to extend the operation of the nonobstante clause in Section 12 (2) of the TNVAT Act, would result in rewriting sub-section (2) to Section 12 which reads as notwithstanding anything contained in sub-clause (2) to Section 2 as notwithstanding anything contained in sub-clause (2) to Section 2 and 19 - Such construction ought to be avoided for the Court cannot aid the legislature, it cannot add or amend the provision. It is contrary to all rules of construction to read words into an Act. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. The court cannot re-frame the legislation for the reason that it has no power to legislate. Different words different meaning - HELD THAT - This Court had found that the legislature has employed the non-obstante clause differently through the Act, while in some provisions the non-obstante clause is very wide, in some cases it is limited to a particular provision or provisions. The non-obstante clause under sub-section (2) to Section 12 of the TNVAT Act, is limited in its operation to section 2 (24) of the TNVAT Act. If the intention of legislature of employing the non-obstante clause in sub-clause (2) to Section 12 of the Act, was to override Section 19 of TNVAT Act it would have provided for it expressly in sub-section (2) to Section 12, as done in various other provisions of the Act. It is settled rule of construction that if in relation to the same subject-matter different words are used in the same statute, there is a presumption that they are not used in the same sense. The exemption under Entry 68 Part B to the Schedule IV is conditional and the said goods on being despatched to places outside the State would attract the levy of purchase tax under Section 12 of the TNVAT Act. Thus the challenge to the levy of purchase tax is liable to be rejected. Input tax credit of the purchase tax would be subject to Section 19 of the TNVAT Act - the impugned orders insofar as it imposes penalty are liable to be set-aside. Petition disposed off.
Issues Involved:
1. Conditional exemption based on dealer turnover. 2. Levy of purchase tax under Section 12 of the TNVAT Act. 3. Applicability of previous judgments under the TNGST Act. 4. Eligibility for Input Tax Credit under Section 12(2). 5. Imposition of penalties without a show cause notice. Detailed Analysis: 1. Conditional Exemption Based on Dealer Turnover: The primary issue was whether the exemption granted to dealers based on their turnover (less than Rs. 500 Crores) under Entry 68 of Part B to the Fourth Schedule of the TNVAT Act is a conditional exemption. The court concluded that the exemption is indeed conditional as it is contingent on the dealer's turnover. This conditional nature implies that the exemption is not absolute and is dependent on specific criteria being met. 2. Levy of Purchase Tax Under Section 12 of the TNVAT Act: The court examined whether the purchase tax under Section 12 of the TNVAT Act is applicable when goods are purchased under conditional exemption and subsequently dispatched outside the state. It was determined that such purchases fall under the category of "in circumstances in which no tax is payable," thus attracting the purchase tax as per Section 12. The court relied on previous judgments which established that conditional exemptions attract purchase tax to prevent tax evasion and ensure that goods are taxed at least once within the state. 3. Applicability of Previous Judgments Under the TNGST Act: The court addressed the petitioners' argument that judgments under the TNGST Act should not apply to the TNVAT Act due to structural differences between the two tax regimes. The court rejected this argument, stating that the principles established in previous judgments regarding conditional exemptions and the levy of purchase tax are still relevant. The judgments in Ruchi Soya Industries Limited, Britannia Industries Limited, and India Cements Limited were cited to support this conclusion. 4. Eligibility for Input Tax Credit Under Section 12(2): The petitioners contended that they should be entitled to Input Tax Credit (ITC) for the purchase tax paid under Section 12, independent of the restrictions under Section 19 of the TNVAT Act. The court clarified that the non-obstante clause in Section 12(2) only overrides the definition of input tax under Section 2(24) and does not extend to Section 19. Therefore, ITC for purchase tax is subject to the conditions and limitations specified in Section 19. 5. Imposition of Penalties Without a Show Cause Notice: The court found merit in the petitioners' claim that penalties were imposed without issuing a show cause notice, which is a violation of natural justice. In the absence of a show cause notice, the imposition of penalties was deemed procedurally improper. Consequently, the court set aside the penalty orders in the cases where no show cause notice was issued. Conclusion: The court upheld the levy of purchase tax under Section 12 of the TNVAT Act on purchases made under conditional exemptions and clarified that ITC for such purchase tax is subject to Section 19 of the TNVAT Act. However, the court set aside the penalty orders imposed without a show cause notice, emphasizing the need for procedural fairness. The writ petitions were disposed of accordingly, with no costs awarded.
|
