2023 (7) TMI 41 - SC - VAT and Sales Tax

Calling to pay the deferred sales tax immediately - validity of G.O.Ms. No. 503 Revenue (CT-II) Department dated 08.05.2009, whereby Rule 67 of the A.P. VAT Rules, 2005 came to be amended - contrary to the industrial policy of the State Government in G.0.Ms. No. 108 dated 20.05.1996 or not - HELD THAT - Under Section 69 read with Rule 67, all those industrial units, who availed the option of tax holiday / exemption prior to 2005, came to be converted to the unit availing tax deferment, however, with condition that the balance period of tax holiday / exemption available as on 31.03.2005 to such units shall be doubled for the purpose of tax deferment. Meaning thereby, an industrial unit having two years balance period available as tax holiday / exemption as on 31.03.2005, the same shall be converted to the unit availing tax deferment for four years, i.e., double the balance period. However, the illustration to Rule 67 provided contrary to Rule 67 and it provided for 14 years deferment. As per the settled position of law, an illustration cannot govern the Rule but it is the Rule which shall govern and the illustration is always for clarification and it is to explain what is provided under the Rule. But the illustration cannot be contrary to the main statute namely, Rule and/or Act. Therefore, thereafter when the illustration came to be amended subsequently, vide G.O.Ms. No.503 Revenue (CT-II) Department dated 08.05.2009, to bring it in line with the statutory provision Rule 67, it cannot be said that the same is illegal and/or contrary to the parent act and/or contrary to the original industrial scheme - In fact, the State Government has taken care of the interest of the industrial units by providing double the balance period while converting the industrial units, who earlier availed the tax holiday as the units having tax deferment. Therefore, it cannot be said that the State was not aware of the interest of the industrial units under the VAT regime. The High Court has rightly dismissed the writ petitions upholding the subsequent G.O.Ms. No.503 Revenue (CT-II) Department dated 08.05.2009 and amendment to Rule 67 of the Rules, 2005 - The impugned judgments and orders passed by the High Court upholding the validity of the amendment to Rule 67 of the Rules, 2005 vide G.O.Ms. No.503 Revenue (CT-II) Department dated 08.05.2009 is/are hereby confirmed. Appeal allowed in part.

Summary

Issues Involved:
1. Validity of G.O.Ms. No. 503 Revenue (CT-II) Department dated 08.05.2009.
2. Consequential demand notices for deferred sales tax.
3. Applicability of the amended Rule 67 of the A.P. VAT Rules, 2005.
4. Levy of interest and penalty for the period between 2005 to 2009.

Summary:

1. Validity of G.O.Ms. No. 503 Revenue (CT-II) Department dated 08.05.2009:
The appellants challenged the amendment of Rule 67 of the A.P. VAT Rules, 2005, which reduced the deferment period contrary to the earlier industrial policy "Target-2000" and G.O.Ms. No. 108 dated 20.05.1996. The High Court dismissed the writ petitions, upholding the amendment. The Supreme Court confirmed the validity of the amendment, stating that the illustration to Rule 67, which initially provided for 14 years deferment, was contrary to the rule itself and was rightly amended to align with the statutory provision.

2. Consequential Demand Notices for Deferred Sales Tax:
The original writ petitioners, industrial units, were issued demand notices to pay the deferred sales tax immediately following the amendment. The Supreme Court upheld these notices, confirming that the amended Rule 67 was in line with the statutory framework and not contrary to the parent act or the original industrial scheme.

3. Applicability of the Amended Rule 67 of the A.P. VAT Rules, 2005:
The Supreme Court noted that under the A.P. VAT Act, 2005, industrial units availing tax exemption were converted to units availing tax deferment, with the balance period of tax holiday doubled. The amendment to Rule 67 corrected the earlier mistake and brought the rule in line with the statutory provision. The Court held that an illustration cannot govern the rule but is meant to clarify it, and thus, the amendment was justified.

4. Levy of Interest and Penalty for the Period Between 2005 to 2009:
The Supreme Court directed that there should be no levy of interest or penalty for the period between 2005 and 2009 due to the retrospective application of the amended Rule 67. The Court ordered that any interest paid during this period should be refunded within eight weeks.

Conclusion:
The Supreme Court partly allowed the appeals, confirming the validity of the amendment to Rule 67 and the consequential demand notices but exempting the appellants from interest and penalty for the period between 2005 to 2009. The writ petition was disposed of accordingly, with no order as to costs.