9911796707
TMI Blog1959 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-05-1954 02-07-1954 27-03-1955 29-07-1954 29-09-1954 31-12-1954 26-10-1954 26-12-1954 27-03-1955 On 11th November, 1957, the Assistant Commissioner of Sales Tax, Eastern Division, Nagpur, issued a notice against the petitioners. The notice was in Form XII as prescribed by rule 32 of the Central Provinces and Berar Sales Tax Rules, 1947. By this notice, the petitioners were called upon to show cause why they should not be assessed and/or why a penalty should not be imposed upon them. The notice, it is not disputed, was issued under section 10(3) read with section 11(4)(a) of the Act though several other sections are mentioned at the top of the form. The petitioners took objection to the issue of this notice and one of the grounds which they raised was that the notice had been issued beyond the period of three years from the date of the assessment of the petitioners for the said period. Thereafter, the proceedings before the Assistant Commissioner were stayed due to certain other proceedings pending in the High Court of Judicature at Nagpur and later on in the High Court of Bombay and because of the latter proceedings the objection could not be disposed of. On 7th June, 1958, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessed, still so far as the initial assessment under section 11(2) is concerned, there would be no period of limitation whatsoever. This would lead to anomalous results. The learned Chief Justice who delivered the judgment on behalf of the Full Bench observed: "The peril to which we referred in the case of Narsee Nagsee(1), and which we said it was our duty to save the assessee from, does not exist in this case. An order of assessment made under section 11 at any time cannot possibly prejudice the assessee in any sense whatsoever. That order would not make him liable to pay any additional tax. That order will not put any further liability upon him. It would be merely a formal acceptance by the authority of the tax which the assessee has already paid, and there is no reason why in construing section 11(1) we should import into it the period of limitation which the Legislature has incorporated in section 11-A. The compelling necessity which drove us to do it in Narsee Nagsee's case(1) does not exist. But the position is different with regard to section 11(2). Section 11(2) is in the substantial sense an initiation of fresh proceedings by the Commissioner. It is open to the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 11." "11. (4) If a registered dealer(a) does not furnish returns in respect of any period by the prescribed date, the Commissioner shall in the prescribed manner assess the dealer to the best of his judgment". Now, the contention of Mr. Phadke on behalf of the petitioners has been that if upon the ratio decidendi of the Full Bench case the Sales Tax Authorities could not take action under section 11(2) to initiate fresh proceedings for purposes of assessment beyond three years, then with stronger reason they could not issue a notice under section 10(3) upon failure to comply with the requirements of a notice under section 10(1), or upon failure to furnish a return within the time prescribed, in order either to penalize the petitioners or to arrive at a best judgment assessment as required by section 11(4)(a). In support of his contention, Mr. Phadke has also referred to some decisions given by me in the Nagpur High Court. They are Miscellaneous Petitions Nos. 437 of 1954 and 381 of 1955, decided on 27th September, 1956, and Miscellaneous Petitions Nos. 285 of 1955 and 12 of 1955, decided on 27th September, 1956, and 24th September, 1956, respectively. The principal deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase[1958] 9 S.T.C. 654; 60 Bom. L.R. 1395. stands unchallenged so far as this Court is concerned, and we are, with all respect, bound to follow it. Mr. Phadke invoked the principle of the decision of the Full Bench case in the present case also. We have already indicated that the proceedings taken in the instant case, however, are not under section 11(2) but under the provisions of sections 10(3) and 11(4)(a). It seems to us that there is a fundamental difference between the nature of the proceedings to be taken under these provisions of the Act and the proceedings to be taken under section 11(2). We have already reproduced a passage from the Full Bench judgment to show that the ground on which the Full Bench took the view in that case was that the proceedings under section 11(2) were in a "substantial sense the initiation of fresh proceedings" and that therefore fresh proceedings, i.e., for assessment for the first time could not be taken beyond three years after the assessee had made his return and paid the tax, especially when the Legislature expressly prohibited escaped income from being taxed after three years. In our opinion, however, the proceedings to be taken under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not dealing with a case of initial proceeding with a view to assessment but we are dealing with a case where the petitioners are being proceeded with by way of a penalty for having committed a default. The principles governing the interpretation of a taxing statute like the Sales Tax Act are now settled and here we cannot do better than reproduce the remarks of Viscount Simon, L.C., in the Canadian Eagle Oil Co., Ltd. v. The King[1946] A.C. 119 at p. 140., as governing the principle in cases of this kind: "In the words of the late Rowlatt, J., whose outstanding knowledge of this subject was coupled with a happy conciseness of phrase, 'in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used:' Cape Brandy Syndicate v. Inland Revenue Commissioners[1921] 1 K.B. 64 at p. 71." So viewed, we have no doubt that in the present enactments the Legislature intended to lay down a period of limitation in certain specific cases only and by contrast did not provide for any period of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
