9911796707
TMI Blog1996 (8) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... fe". The assessees pray that addition of words like "per se" on imaginary basis be disapproved so as to assess the life of the notification and to avoid its mortality. 3.. Factual matrix is in a narrow compass. The State Government issued the notification under section 12(1)(ii) of the Act and granted immunity to specified weavers from payment of sales tax. Sales Tax Commissioner issued Letter No. VIK/EK/338/24(b)72/13 dated May 4, 1979 (annexure "F" in Misc. Petition No. 1453 of 1989) to authorities under him that in the face of notification dated October 1, 1978, as noted above, liability to pay entry tax, under the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (52 of 1976) (for short, "the Adhiniyam") ceases ipso facto in terms of section 3 of the Adhiniyam on exemption from payment of sales tax and as such no separate notification under section 10 of the Adhiniyam was issued. The inbred question is whether entry tax is still leviable. 4.. As regards Misc. Civil Case No. 373 of 1991, the Tribunal (Board of Revenue) held on December 12, 1988 in Appeal No. 382-PBR/85 that notification covered only a "weaver" per se and not the applicant-assessee whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90. We have heard Shri Bhargava, Additional Advocate General for the non-applicant and respondents in these cases. Shri Chaphekar has placed reliance on AIR 1970 SC 755 (Hansraj Gordhandas v. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat), [1991] 80 STC 138 (SC) (State of Madhya Pradesh v. G.S. Dall and Flour Mills), [1980] 46 STC 429 (MP) (Commissioner of Sales Tax, M.P. v. Phoolchand Onkarlal), [1989] 73 STC 252 (Raj) (Assistant Commercial Tax Officer, Ajmer v. Shanker Namkin Bhandar), [1978] 41 STC 409 (SC) (Polestar Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales Tax) and statute part of [1979] 43 STC at page 58 in support of his contentions that (i) object is to be seen, (ii) notification is to be looked into, (iii) it is not necessary to do the act personally i.e., by themselves, and (iv) assessees do fall in the "class" of dealers exempted under the notifications. Shri Choudhary has adopted the arguments. These contentions are dubbed as non-meritorious and submission is that object is to give relief to those who "weave" themselves and are such dealers, i.e., small dealers so as to enable them to compete with big dealers and to be able to earn t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude from its purview those who are not intended to be the beneficiaries. Justifiable and rational reasons should exist for differentiation and for avoidance of hostile discrimination. In [1990] 77 STC 82 (SC); AIR 1990 SC 820 (Video Electronics Pvt. Ltd. v. State of Punjab) it is held that: "It has to be reiterated that sales tax laws in all the States provide for exemption. It is well-settled that the different entries in Lists I, II and III of the Seventh Schedule deal with the fields of legislation, and these should be construed widely, liberally and harmoniously. And these entries have been construed to include ancillary or incidental power. Power to grant exemption is inherent in all taxing legislations. Economic unity is a desired goal, economic equilibrium and prosperity is also the goal. Development on parity is one of the commitments of the Constitution. Directive principles enshrined in articles 38 and 39 must be harmonised with economic unity as well as economic development of developed and under-developed areas. In that light on article 14 of the Constitution, it is necessary that the prohibitions in article 301 and the scope of article 304(a) and (b) should be und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.. Before proceeding further, it is significant to notice that notifications do not employ the words "per se". Now on such addition, does one find alteration to say like New Testament that "The letter killeth". The spirit and on removal of these words, does one find the conferment of exemption on these assessees as well to state that "spirit giveth life" to the notifications? What is the object or reason? What is the significance of the words "weavers" and "class of dealers" as against "any goods" or "class of goods"? Is there any case of ambiguity in the notifications and, if so, what is the surest guide to solve the conundrum? Is there any real difference between the expressions "to do" and "to cause to be done" in the context of Incidence of taxation? Does such activity not give rise to "same class of dealers" in terms of business? 17.. It is in the area of legislative ambiguities, yet not receding, that courts have to fill gaps, clear doubts and mitigate hardships. In the words of Judge learned Hand, spoken in Cabell v. Markhan (1945) 148 F 2d 737, 739, we get enough light to locate correct path: "It is one of surest indexes of a mature and developed jurisprudence.... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic words to that effect have been used. The absence of such specific words in the notification dated 28th July, 1972 indicates that the said notification does not exclude from its ambit deshi-sweet and namkins prepared by the assessee with the assistance of persons employed by him. The first question, therefore, must be decided against the Revenue and in favour of the assessee." 23.. In the instant cases, the notifications contain the words "Handloom and powerloom weavers ". Firstly, it does not further say "who weave themselves" and secondly, even then it would not be construed as restrictive to personal activity only. However, absence of these specific words in the notifications further indicate that there is no scope for confusion and that the notifications do not exclude from their ambit the dealers who manufactured the cloth with the assistance of the persons employed by them. In this view of the matter, we have no hesitation to hold that the applicant and the petitioners do fall in the category of "class of dealers" as "Handloom and powerloom weavers" covered by the notifications in question. Any other meaning would introduce incongruity and would lead to hostile discrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the light of purpose and object, as flows from the notifications, we have thus found it fit to hold that these assessees are handloom and powerloom weavers and appropriately give at least the gleam that they belong to the category of exempted class of dealers in terms of the notifications. The incentive by way of exemption can help weavers, weaving for themselves or as employees for others, to come out of the limping to compete as equals with others manufacturing and selling cloth spun on machines. We, thus, see justifiable and rational reasons to provide relief in this manner and hold that, in the absence of restrictive words, notifications remain applicable. Revenue has not imposed liability of sales tax on these assessees. If there is comfort on exit, why should there be discomfort on entry of raw material? 27.. Our country has 15 per cent of the world's population but has meagre 1.5 per cent of the world's income. Soon the country would usher in 21st century but still it is 21st poorest nation on the earth. The Revenue should search proper avenues. The State Government are expected, nay required, to issue notifications, whenever held proper and prudent, free from ambiguity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessees are not liable to suffer entry tax, more so when they were not made to suffer sales tax. This is clarified by the letter of Commissioner of Sales Tax issued on May 4, 1979 (annexure "F" in Misc. Petition No. 1453 of 1989). 31.. It needs to be stated that these two miscellaneous petitions were single bench matters but were linked with this reference matter required to be heard by divisional bench. So on request of counsel for the parties, we heard these three cases as connected matters. 32.. Ex consequenti, we decide these three cases as under: (a) Misc. Civil Case No. 373 of 1991: The question, in view of the aforesaid conclusion, is answered against the Revenue and in favour of the assessee as we find that the notification itself does not employ the word "per se". (b) Misc. Petition No. 1453 of 1989: We allow this writ petition and quash the revisional order dated July 29, 1989 passed by the Additional Deputy Commissioner of Sales Tax, Indore, in Revision No. 127/89/Entry Tax and hold that the petitioner-assessee is not liable to pay entry tax in view of the interpretation given by us to the notifications in question. (c) Misc. Petition No. 277 of 1990: W ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
