9911796707
TMI Blog1992 (8) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... III to the Act. The selling dealers were also assessed on that basis in respect of the sales made to the assessee. The assessee had filed its returns for the years 1973 to 1977, but they were not taken up for consideration for the purpose of assessing the correct amount of tax payable by the assessee till February 22, 1977, in view of the extensions granted under section 42(1)(b) of the Act. In all its returns, the assessee had claimed set-off under rule 42 of the Gujarat Sales Tax Rules at the rate of 8 per cent as it had paid tax on the purchases made by it at the rate of 8 per cent. Meanwhile, the application made by the assessee under section 62 of the Act in respect of the sales of aircompressors and other articles sold by it came to be decided on February 22, 1977, and it was decided therein that the said goods were covered by entry 16(1) of Schedule II, Part A to the Act and thus they were exigible to tax at the rate of 3 per cent up to July 31, 1975 and 4 per cent thereafter. In view of this determination order, the Sales Tax Officer, while passing assessment orders, allowed set-off only at the rate of 3 per cent for the purchases made up to July 31, 1975, and at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill lead to anomalous position as one meaning will have to be given to that word while interpreting rule 42(B)(i)(a) and different meaning to the same word while dealing with a case falling under rule 42(B)(i)(b); that if set-off is granted in respect of the amount actually levied and paid, then the set-off will be not only in respect of the tax but also the excess amount which may be the subject-matter of penalty, and that such interpretation would lead to a situation where assessment of the manufacturing dealer will have to be dragged on till the assessment of his vendors are finalised. Sub-section (32) of section 2 defines "tax" to mean a sales tax, general sales tax, or purchase tax, payable under the Act, but does not include additional tax. Rule 42 provides for drawback, set-off, or refund of tax for the goods purchased by a manufacturer. It provides that in assessing the tax payable by a manufacturer, the Commissioner shall, subject to the prescribed conditions, grant him a drawback, set-off, or as the case may be, refund, of the whole or any part of the tax in respect of the purchase of goods used by him in manufacture. Since we are not concerned with the conditions, we ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate consumer. It was submitted that if interpretation of the word "tax" by the Tribunal is accepted, then that would instead of achieving the object of the provision, defeat the same. The learned counsel cited K.P. Varghese v. Income-tax Officer [1981] 131 ITR 597 (SC), State of Tamil Nadu v. Kodaikanal Motor Union (P.) Ltd. [1986] 62 STC 272 (SC), Ashok Singh v. Assistant Controller of Estate Duty [1992] 196 ITR 160 (SC); (1992) 3 SCC 169 and Kirtikumar Dhanjibhai Mohaya v. V.K. Trivedi, Sales Tax Officer [1985] 58 STC 125 (Guj) in support of his contention that in order to avoid the effect or consequence not intended by the Legislature, or to see that the object of the provision is not frustrated, or that the interpretation does not lead to unjust results, the court can depart from the statutory definition or meaning. The learned Assistant Government Pleader did not dispute the proposition that, if the context so requires, the courts can give an appropriate meaning to the word used in a statute if it has various meanings. There can be no doubt that departure from the legislative dictionary, or statutory meaning of the word is not only permitted but justified, if literal interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount of tax, there is no reason why for the purpose of set-off the excess amount paid as a result of assessment or on determination by the sales tax authority, should not be regarded as amount of tax, even though subsequently it may turn out that the whole amount was not really payable under the Act as tax. It was, however, urged by the learned Assistant Government Pleader appearing for the Revenue that if the amount, paid by way of tax is also regarded as tax for the purpose of clause (a) of rule 42(B)(i), then, it will lead to an anomalous result, because, we will have to give a different meaning to the word "tax" while interpreting clause (b) of that rule. Clause (a) deals with a situation where sales tax and general sales tax have been recovered separately by the dealer from the purchaser of goods. Clause (b) deals with a case where the sales tax or general sales tax has not been so recovered. In a case falling under clause (b), no measure is available on the basis of which the extent of set-off can be worked out and it is for that reason that the rule-making authority has prescribed a formula for that purpose. In cases covered by clause (a), the measure is the amount of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epend upon the scheme of that Act and language of the relevant provision. Merely because voluntary payment of excise duty was not regarded by the Supreme Court as payment under the Central Excises and Salt Act, 1944, it cannot be said that the amount paid by the assessee under the Act as a result of assessment even if it is for the previous year cannot be regarded as an amount of tax under the Act for the purpose of drawback, set-off or refund. One more ground, which was urged by the learned Assistant Government Pleader, was that if this interpretation is given to the word "tax " in rule 42(B)(i)(a), the assessment proceedings of the manufacturing dealer will drag on till the assessment proceedings of the selling dealer are finalised. If the purchasing dealer has paid tax, and if there is no other dispute and the purchasing dealer claims set-off, it is difficult to appreciate how as a result of such a claim the assessment proceedings of the purchasing dealer will have to be kept pending till the assessments of his vendors are finalised. For all these reasons, we are of the view that the word "tax" in clause (a) of rule 42(B)(i), on correct interpretation means the amount paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
