9911796707
TMI Blog1992 (1) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin and outside the State of Haryana. The assessment for the year 1988-89 in respect of its liability under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act") was finalised by the Assessing Authority vide its order dated March 22,1991. A liability of Rs. 92,657 was created. The company made an application for stay of recovery and prayed that the appeal be heard without deposit of the tax as assessed by the Assessing Authority. Having failed in its attempt, the company has approached this Court through the present writ petition. The action of the Assessing Authority in including the surcharge as envisaged under section 16 of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as "the Haryana Act") a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8(2)(b) of the Central Act. In support of his contention, the learned counsel has placed reliance on the two Division Bench judgments in State of Karnataka v. P.K.P. Abdul Hakeem Co. [1985] 59 STC 203 (Kar) and Assistant Commissioner (Assessment), Sales Tax v. Janatha Expeller Co. [1987] 64 STC 435 (Ker). He further contends that the levy of interest and penalty was wholly unjustified in the circumstances of the case. On the other hand, Mr. Vasudeva has contended that surcharge is a tax on tax. Accordingly, it is a part of the tax and that is the rate at which the tax under the Central Act had to be paid by the petitioner. The tax having not been paid, the assessment orders including the levy of interest and penalty are wholly just and le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, it is equally settled that the provisions of the Act have to be harmoniously construed. On a combined reading of sections 15 and 16, I am left with no doubt that the rate of tax is not only the one prescribed under section 15, but such as may be arrived at on a combined reading of sections 15 and 16 of the Haryana Act. Accordingly, the tax under the Central Act has to be determined at the same rate as may be arrived at on a combined reading of sections 15 and 16 of the Haryana Act. Mr. Sawhney relies on the two Division Bench decisions, mentioned above, to contend that the rate of tax under section 8(2)(b) has to be confined to the one provided for under section 15 alone. These two judgments probably lend some support to his content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed that the additional tax provided by section 5-A is also a rate, and that like section 5, section 5-A is also a charging section. In fact, the Bench went further and observed that the same principle applies to surcharge in the calculation of lower rate of tax under section 8(2-A) of the Act. It was observed that surcharge is nothing but an additional tax. We are in respectful agreement with the said Bench decision, and hold that surcharge must be taken into account while determining the rate of tax payable under sub-section (2-A) of section 8." I am in respectful agreement with the view expressed by their Lordships. Accordingly, I find no merit in the primary contention raised on behalf of the petitioners. This brings me to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, I am of the opinion that on account of the doubt regarding the correct interpretation of the provision, which had not been clarified even by the departmental authorities till the matter was settled by the Tribunal, the petitioner had adequate reason for not paying the tax at the rate at which the department has now held it to be liable. Accordingly, the matter regarding the imposition of penalty and interest deserves to be reconsidered by the Assessing Authority. In view of the above, I hold that the tax under section 8 of the Central Act has to be paid at a rate determined on a combined reading of sections 15 and 16 of the Haryana Act. The order of the Assessing Authority in that respect is upheld. However, with regard to the imposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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