9911796707
TMI Blog1974 (9) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... rders, found that, though the assessee had deposited the tax within the prescribed time before filing the returns, the returns were actually filed not within the time prescribed under section 14 of the Act read with rule 10 of the Bihar Sales Tax Rules, 1959 (hereinafter referred to as the Rules). The rebate claimed was, on this ground, disallowed. The assessee having filed three appeals relating to the aforesaid three periods in question before the Deputy Commissioner of Commercial Taxes and the appeals having been dismissed, it preferred three revisions before the Tribunal. Admittedly, in these cases the assessee paid the admitted tax within the period prescribed by the Act. With regard to the second quarter of the year 1960-61, namely, the period between 1st July, 1960, and 30th September, 1960, both the payment of tax and the filing of return were within the time prescribed by the Act. With regard to the rest of the periods covered by the three assessments, it was conceded by the assessee that it had not filed the returns within the time prescribed under section 14(1) of the Act read with rule 10 of the Rules nor was any extension of time prayed for or granted under section 14( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prescribed manner and within the prescribed or extended period shall be allowed to a registered dealer who has paid such amount according to the provisions of sub-section (2) of section 20: Provided that where the amount finally assessed on the dealer is less than the admitted amount, rebate at the said rate shall be allowed only on the amount so assessed: Provided further that the State Government may, by notification, and subject to such conditions or restrictions as may be specified therein, enhance or reduce the rate of rebate in respect of registered dealers generally or any class of such dealers." It will be noticed that the rebate is allowable if the amount of tax admitted to be due in the return furnished under section 14(1) in the prescribed manner and within the prescribed or extended period has been paid in accordance with section 20(2). Section 14(1) of the Act lays down that: "Every registered dealer shall furnish such returns within such period and to such authority as may be prescribed: Provided that the prescribed authority may require any dealer by notice in writing, to furnish such returns within such period as may be fixed by the said authority." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period to which such returns relate. If, for any reason, the dealer is unable to furnish such returns within the period prescribed then he must file an application before the expiry of the period for extension of the period for submission of the returns. If, however, he fails, without reasonable cause, to furnish any return within the period prescribed or within the period fixed in the notice served under the proviso to sub-section (1) or within the period extended under section 14(3), the competent authority may impose a penalty on the dealer for such failure on his part, which may extend to rupees five for every day after the expiry of the period prescribed or fixed, during which there has been such a failure to furnish the required return. Section 14(4), in my view, merely enables and empowers the competent authority to impose a penalty in cases of delinquent dealers failing to furnish returns within the time allowed by law. It does not, however, compel such authority to impose a penalty in all cases. For, it may well be seen that even for the purpose of imposition of penalty only the maximum has been laid down as "not exceeding rupees five for every day". In appropriate and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the cases of Commissioner of Income-tax, Punjab v. Kulu Valley Transport Co. (P.) Ltd.[1970] 77 I.T.R. 518 (S.C.). and Commissioner of Income-tax, West Bengal I v. Vegetable Products Ltd. [1973] 88 I.T.R. 192 (S.C.). as also numerous other decisions do recognise this principle of construction of taxing statutes. This principle, however, has never been held to have any application if the language of the statute is absolutely unambiguous and unequivocal. The point for determination, therefore, is as to whether there is anything in the language of section 15 which admits of two meanings; is there anything in the language admitting of any controversy? The statute says that the relief in the shape of a rebate shall be granted to a dealer paying the amount of tax admitted to be due (i) in the return furnished under section 14(1) in the prescribed manner, and (ii) within the period prescribed or extended, (iii) if the dealer has paid such amount in accordance with section 20(2). The tax admitted to be due for the purpose of claiming a rebate, therefore, must be so admitted in the return furnished under section 14(1) in the prescribed manner and within the period prescribed or extend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of section 2 of the Corrupt Practices Prevention Act, 1854, as mere surplusage; but in his advice to the House of Lords (Cooper v. Slade[1858] 6 H.L.C. 672, 746, 765.) he stated that he had altered his opinion as to this, because it appeared that a reasonable construction could be put upon that proviso, and therefore that construction ought to be adopted, instead of treating that proviso as if it did not exist at all. Similarly, in East London Ry. v. Whitechurch[1874] L.R. 7 H.L. 81, 91., Lord Cairns expressed a strong opinion against treating words in an Act of Parliament as surplusage, if any meaning can be put upon them." The only exception to the above rule is that a court of law will reject words as surplusage if it appears that by attempting to give a meaning to every word it has to make the Act of a legislature insensible or if it is clear that otherwise the manifest intention of the legislature will be defeated. Keeping these well-established principles in mind, can it be said that the words which the learned counsel for the assessee asks us to treat as mere surplusage are violative of the manifest intention of the legislature or would make the statutory provision und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling the contention that certain words used in a statute were mere tautology: "When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words had something which would not be there if the words were left out." 8.. There is yet another aspect of the matter which lends support to the view I have taken. Section 14(2), for example, lays down that if a dealer having furnished a return under section 14(1) discovers any omission or error in the return so furnished by him, he may, at any time before the assessing authority passes the assessment order, furnish a revised return. But under the proviso to that sub-section no such revised return shall be taken into consideration if the assessing authority is satisfied upon information coming into his possession that the original return furnished was deliberately false or was furnished with an intent to defraud the revenue and the authority records such reason in writing. The furnishing of a true and cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships of the Supreme Court held that it was a part of the process of collection and the stimulus for prompt payment was a part of the manner of collection. A comparison of the language of section 13(8) read with section 13(4)(d) of the Orissa Act and the provisions of section 15 read with section 20(2) of the Bihar Act marks out the difference and the distinction between the Supreme Court case and the instant cases. As already pointed out above, section 20(2) of the Bihar Act specifically speaks of the payment of the full amount of tax due from the assessee before any registered dealer furnishes any return. When, therefore, section 15 speaks of payment of the tax admitted to be due in the return furnished in accordance with the provisions of section 20(2) of the Act, the furnishing of the return within the time prescribed or extended is as much an essential ingredient as the payment of the admitted tax within the time itself. 10.. It was next contended by the learned counsel for the assessee that even assuming that on a true construction of section 15 of the Act a rebate can be held to be allowable only on a fulfilment of the two prerequisite conditions, namely, the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order passed more than ninety days before the application to review was filed. In that connection, their Lordships of the Privy Council held that: "Although the application was made more than ninety days after the date of the order of which review was sought, it must be assumed that the Revenue Commissioner, before entertaining it, was satisfied that there was sufficient cause for the delay." In the case of Sree Sree Iswar Sridhar JewA.I.R. 1960 Cal. 718., the Calcutta High Court was dealing with the provisions of rule 15 of Chapter VI of the Original Side Rules which prescribed that an appeal from an order made by the Master must be made within five days after the decision complained of or such further time as may be allowed by a Judge or the Registrar or the Master. The objection as to limitation in filing the appeal was specifically taken in the affidavit-in-opposition of the respondent and was urged by the learned counsel appearing for the respondent in that case before the first appellate court. In spite of such an objection, the learned Judge hearing the appeal in the first instance did not throw out the petition of appeal and passed an order on merits. In such circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 16(4) of the Act and a best judgment assessment was bound to follow. In order to appreciate and reject this contention the provisions of section 16 may be referred to. Section 16 of the Act provides for assessment of tax. Section 16(1) authorises the prescribed authority to assess the amount of tax due from the dealer on the basis of the returns furnished by such dealer if such authority is satisfied, without requiring the presence of the dealer or the production of accounts and other evidence, that the returns furnished are correct and complete. Section 16(2), however, authorises the prescribed authority in case it is not so satisfied, without requiring the presence of the dealer or the production of accounts and other evidence, to serve a notice to such a dealer to attend in person or through an authorised representative or to produce or to cause to be produced any accounts or other evidence, on which the dealer may rely, on a date and time and at a place specified in such notice. Section 16(2)(b) runs thus: "On the day specified in the notice or as soon thereafter as may be, the prescribed authority shall, after examining the accounts and other evidence produced by the deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 14(1) or extended under section 14(3), the assessing officer must make a best judgment assessment under section 16(4) and that, therefore, he should be held to be precluded from passing an order of assessment under section 16(2)(b) of the Act. In my considered view, a dealer can be assessed on the basis of a return furnished under section 14(4) beyond the period prescribed or extended even in accordance with the provisions of section 16(2)(b). That being the position, any assumption or presumption of an extension of the period for filing the return by implication must wholly be ruled out as not warranted. I must hasten to add, however, that if section 14(4) of the Act were not there in the statute book, the ratio of the decisions in the cases of Md. Akbar Khan[1934] I.L.R 15 Lah. 216. and Sree Sree Iswar Sridhar JewA.I.R. 1960 Cal. 718. would certainly apply. 12.. For the reasons stated above, I must hold that the case of Jamuna Flour and Oil Mills(3) [1968] 22 S.T.C. 1. was wrongly decided and must be overruled on both these points, namely, (1) that for rebate to be allowed under section 15, the furnishing of the return within the period prescribed or extended w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Mills (P.) Ltd.[1968] 22 S.T.C. 1. required an interpretation of section 15 of the Bihar Sales Tax Act, 1959 (hereinafter referred to as the Act), the question in the instant case requires interpretation of sub-section (2) of section 20 and not of section 15 of the Act, though the Tribunal has mentioned that section in the frame of the question referred. There is a distinction between the right to claim rebate and the claim being allowed by the taxing authorities. The former is a right available to the dealer or assessee, but the latter depends upon the law and its application by the taxing authorities. Therefore reference to section 15 of the Act in the question as referred is irrelevant. The right to claim rebate arises when an assessee deposits the admitted tax in accordance with section 20(2) of the Act and while doing so deducts the rebate out of it in terms of the proviso thereto. To put the relevant parts of this section, it reads as under: "20. (2) Before any registered dealer furnishes any return under this Act, 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 return and shall furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions of sub-section (2) of section 20." In the case of Jamuna Flour and Oil Mills[1968] 22 S.T.C. 1., the expressions "the amount of tax admitted to be due in the return furnished under sub-section (1) of section 14 in the prescribed manner and within the prescribed or extended period" have been held to be merely descriptive and not restrictive. The relevant observations are as under: "In my opinion, however, on a proper construction of section 15 read with section 20 of the Act, the eligibility for claiming rebate arises if the amount is paid under sub-section (2) of section 20. That portion of section 15, which refers to the filing of return within the prescribed period, should not be construed as a condition for a right to claim rebate. It is true that, until and unless the return is filed, the question of allowance of the rebate by the authorities will not arise; but a distinction should be made between the right to claim rebate on the one hand and the date when the authority concerned will allow the claim. Sub-section (2) of section 20 clearly envisages a situation where the full amount of tax is first paid by the dealer and then the return is submitted by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no control..." (emphasis is mine). In fact the question referred in the case was so worded that it was likely to confuse and attract such observations. The ultimate opinion given on the question is, however, not so much on the scope of sections 15 and 20(2) of the Act as much on the fact that the return was held to have been filed within the extended period. If this decision is read as deciding that the filing of the return was not one of the conditions for allowing the rebate in terms of section 15 of the Act, the decision would be wrong. Section 15 of the Act is so unambiguous in its terms, that it cannot be said that filing of the return within the prescribed or extended period was not one of the conditions for allowing the rebate under section 15 of the Act. 8.. The question, however, still remains as to how imperative or mandatory is the requirement for filing of the return within the prescribed or extended period for allowing the rebate in terms of section 15 of the Act. It cannot be gainsaid that if an Act provides a particular procedure for laying a claim, the validity of the claim must be determined by reference to the very same procedure. In the Act the procedure f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms in section 15 of the Act in relation to the return can only be understood as merely descriptive and not restrictive. If it is not so understood, it would lead to anamolous results; no rebate would be admissible on returns filed under section 14(2) or 14(4) even after paying penalty or 18(1) of the Act even though furnished within the prescribed or extended period. It is one of the cardinal rules of interpretation of statutes that "where possible, a construction should be adopted which will facilitate the smooth working of the scheme of legislation established by the Act, which will avoid producing or prolonging artificiality in the law, and which will not produce anomalous results" (Maxwell on the Interpretation of Statutes, 12th edition, page 201). 9.. The Sales Tax Tribunal has observed, and very rightly, that "in interpreting a statute nothing is to be added to or to be taken away from a statute. A construction which will leave without effect any part of the language of a statute will normally be rejected". The interpretation of section 15, as given by me, does not violate this principle. The expression "the return furnished under sub-section (1) of section 14 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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