9911796707
TMI Blog2005 (9) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... without jurisdiction and were liable to be quashed. They have also sought for quashing of the aforesaid circular, annexure D. The learned single Judge, by means of his order dated February 10, 2005(1), dismissed the writ petitions on the short ground that since the appellants have alternative remedies provided under the Act, it is not appropriate, in exercise of the power conferred on him under articles 226 and 227 of the Constitution of India, to grant reliefs sought for by the assessees in the writ petitions. Aggrieved by the said order, this appeal is presented. Facts in brief, as set out by the assessees in the writ petitions, may be stated as hereunder: The appellants 1 to 3 are the dealers in parts and accessories of computers and computer peripherals and are registered as dealers under the provisions of the Act on the file of the third, fourth and fifth respondents respectively. The assessments of the first appellant for (1) See [2006] 147 STC 98 (Karn). the year 2001-02 was concluded on November 21, 2002 assessing the gross and taxable turnover as at Rs. 7,30,46,172 (rupees seven crore thirty lakhs forty-six thousand one hundred seventy-two only). The turnover of subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing authority issued proposition notice dated January 6, 2005, a copy of which has been produced as annexure C to this appeal, under section 12-A of the Act proposing to levy resale tax under section 6-B of the Act on a turnover of Rs. 1,14,31,818 (rupees one crore fourteen lakhs thirty-one thousand eight hundred eighteen only) on the ground that the turnover on subsequent sales of parts of computer and computer peripherals were not exempted from levy of resale tax in terms of notification annexure G dated March 30, 2002 and as such levy of resale tax under section 6-B of the Act in respect of subsequent sale of parts of computer and computer peripherals had escaped. The fourth appellant in this appeal claims to be an Association formed for the benefit and to protect the cause of persons connected with the information technology industry and as such it has filed the writ petition along with the appellants 1 to 3 being aggrieved by the circular annexure D, dated December 31, 2004 issued by the Commissioner. As noticed by us earlier, the appellants 1 to 3 challenged the proposition notices annexures A, B and C dated January 25, 2005; January 18, 2005 and January 6, 2005 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essments already made in the purported exercise of the power conferred on them under section 12-A of the Act. It is also their case that since the assessing authorities were required to apply their mind and decide as to whether the order of reassessment is required to be made under section 12-A of the Act, however, since in the instant case, the authorities, as a matter of fact, were dictated to reopen the assessment in exercise of their power under section 12-A of the Act in view of the circular, annexure D, the proceedings initiated for reopening the assessment are also liable to be quashed. Since the State did not file statement of objections to the writ petitions, we had permitted the State to file its statement of objections in this appeal and connected writ petitions. In the statement of objections, inter alia, it is contended that the parts of computer and computer peripherals are not exempted from levy of TOT/RST under section 6-B of the Act and the notification annexures E, F and G only exempt levy of TOT/RST under section 6-B of the Act only insofar as computer and computer peripherals are concerned and they do not exempt from levy of TOT/RST under section 6-B of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramesh, Venkatesh, Lakshmikumaran, Suresh S. Joshi, appearing for the appellants/petitioners in connected appeals/petitions strongly urged five contentions. Firstly, they submitted that the view taken by the learned single Judge that the writ petitions were not maintainable as the appellants in this appeal have an alternative remedy provided under the Act, is erroneous in law since in circular annexure D, the Commissioner had directed all the assessing authorities in the State to immediately take up assessment proceedings in all the pending cases of dealers of parts of computer and computer peripherals and to proceed to levy TOT/RST and additional tax on turnover and sale of parts of computers and computer peripherals at the rate specified under sections 6-B and 6-C of the Act and also has directed all the assessing authorities to immediately initiate reassessment proceedings under section 12-A of the Act in cases where assessments have already been completed allowing exemption from TOT/RST and additional tax on turnovers relating to sale of parts of computer and computer peripherals which was not available; and all the revisional authorities were also directed to initiate revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 790, in the case of Bhopal Sugar Industries Ltd., Madhya Pradesh v. D.P. Dube, Sales Tax Officer, Bhopal reported in [1963] 14 STC 410 (SC); AIR 1967 SC 549, in the case of State of Bombay v. Bombay Education Society reported in AIR 1954 SC 561, in the case of State of Tamil Nadu v. Pyare Lal Malhotra reported in [1976] 37 STC 319 (SC); [1976] 1 SCC 834, in the case of Onkarlal Nandlal v. State of Rajasthan reported in [1985] 60 STC 314 (SC); [1985] 4 SCC 404, in the case of Filter Co. v. Commissioner of Sales Tax reported in [1986] 61 STC 318 (SC); [1986] 2 SCC 103. Secondly, the learned counsel submitted that since it is for the assessing authority to make up its mind under section 12-A of the Act as to whether the assessment has escaped, on objective consideration of the materials before it; and since undisputedly the proceedings have been initiated by virtue of the dictation given by the Commissioner by means of circular, annexure D dated December 31, 2004, all the proceedings initiated to reassessment already made including the order of reassessment made in the purported exercise of the power conferred on the assessing authorities under section 12-A of the Act, are liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the word "namely" which describes various types of computers and the words "and their parts" are required to be understood as the Legislature intending to include their parts for the purpose of levy of tax as computers. So far as the parts of peripherals are concerned, it is their submission that under clause (a) of Sl. No. 20(ii) of Part "C" of the Second Schedule, immediately after the word "peripherals", the words "all kinds of printers and their parts" is employed. They have been described by using the words "and various types of printers" and they have been described after employing the word "namely". The learned counsel also pointed out that under clause (b) of Sl. No. 20(ii) of Part "C" of the Second Schedule, various types of peripherals like terminals, scanners, multimedia kits, plotters, modem and their parts, have been set out. Therefore, from the words "that is to say" employed immediately after the word "peripherals" describing various types of peripherals along with their parts and the words "and their parts" having been included, they submit, it must be understood that the words "and their parts" are indicative of the legislative intention that the parts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -heading it is clear that the Legislature has not intended to exclude parts from the main items and it always intended to treat them synonymously for the purpose of taxation. It is also their submission that since item No. 9 of the exemption notification annexure F reads that computers, computer peripherals, computer consumables and computer cleaning kits "falling under Sl. No. 20 of Part 'C' of the Second Schedule of the Act", it must be understood that all the items set out in Sl. No. 20 of Part "C" of the Second Schedule to the Act are exempted from levy of tax. According to the learned counsel, item 9 of exemption notification in substance takes into its fold all the items mentioned in Sl.No. 20 of Part "C" of the Second Schedule to the Act. Elaborating this submission, the learned counsel pointed out that otherwise there was no need to refer to in item 9 of the exemption notification as "falling under Sl. No. 20 of Part 'C' of the Second Schedule". They submitted that similar is the position insofar as notification, annexure G, which granted exemption on resale tax under section 6-B of the Act. According to them, in this notification also the language employed is computers, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification. In support of submissions referred to above made, the learned counsel relied upon the judgment of the Supreme Court in the case of Tata Oil Mills Co. Ltd. v. Collector of Central Excise reported in [1991] 82 STC 225; [1989] 4 SCC 541, in the case of Collector of Central Excise v. Neoli Sugar Factory reported in [1993] Supp 3 SCC 69, in the case of Commissioner of Income-tax v. Straw Board Manufacturing Co. Ltd. reported in [1989] 177 ITR 431; [1989] Supp 2 SCC 523, in the case of Prestige Engineering (India) Ltd. v. Collector of Central Excise, Meerut reported in [1994] 73 ELT 497 (SC), in the case of Steel Authority of India Ltd. v. Collector of Central Excise, Bolpur, West Bengal reported in [1997] 91 ELT 529 (SC), in the case of Collector of Central Excise, Hyderabad v. Galada Continuous Castings Ltd. reported in [2000] 119 ELT 272 (SC), in the case of Krishi Utpadan Mandi Samiti, Kanpur v. Ganga Dal Mill Co. reported in [1985] 58 STC 23 (SC), in the case of Collector of Customs, Bangalore v. Maestro Motors Ltd. reported in [2005] 4 RC 1; [2004] 174 ELT 289 (SC), in the case of Navnit Lal C. Javery v. K.K. Sen, Appellate Assistant Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and computer peripherals were exempted from levy of tax in terms of the exemption notifications, has to be given full weightage. They pointed out that except one assessing authority, though all the assessing authorities in the State have made orders of assessment giving exemption in respect of parts of computer and computer peripherals from levy of tax for the total turnover or resale of those goods under section 6-B of the Act, none of the revisional authorities, who are conferred with the suo motu power under section 22-A(1) and 22-A(2) of the Act, have exercised the power conferred on them under the Act till the issue of circular annexure D notifying that the parts of computer and computer peripherals were not exempted from levy of tax. This, they pointed out, obviously, all the assessing authorities and the revisional authorities have clearly understood that the parts of computer and computer peripherals were exempted from levy of TOT/RST. It is also submitted by some of the counsel appearing for the assessees in the connected matters that the Commissioner having issued clarification, annexure H, dated December 15, 2004 clarifying that the parts of computers and computer perip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Industries reported in [2002] 143 ELT 19 (SC), in the case of Commissioner of Central Excise v. Maruti Foam (Private) Limited reported in [2006] 144 STC 161 (SC); [2004] 3 RC 328; [2004] 164 ELT 394 (SC), in the case of SACI Allied Products Ltd. v. Commissioner of Central Excise reported in [2005] 5 RC 119; [2005] 183 ELT 225 (SC). However, the learned Advocate-General while strongly supporting the order impugned passed by the learned single Judge and countering each one of the contentions advanced by the learned counsel for the assessees, submitted that since the assessees have an alternative remedy provided under the Act, the learned single Judge was fully justified in dismissing the writ petitions without considering the claim of the assessees on merits. In support of this submission he relied upon the decision of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa reported in [1983] 53 STC 315. He pointed out that since there is no reference either in the proposition notices issued to the assessees or in the orders of reassessment made by the assessing authorities that the proceedings for reassessment were initiated under section 12-A of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule to the Act, with a view to restrict the computers and computer peripherals to which the benefit of exemption was extended and not with a view to include parts of computer and computer peripherals. He submitted that the exemption notifications have to be strictly construed and if so construed it must be held that the parts of computer and computer peripherals are not exempted from levy of tax. He further pointed out that the parts of computers and computer peripherals are required for the purpose of production of computers and computer peripherals and that being the position, the collection of tax by levying TOT/RST on parts of computer and computer peripherals is substantial and therefore, the State excluded the parts of computer and computer peripherals from exemption of levy of TOT/RST under section 6-B of the Act. He also pointed out that though the Commissioner had issued clarification, annexure H, on December 15, 2004, since on December 16, 2004, the Deputy Accountant-General had raised an objection pointing out that parts of computer and computer peripherals are not entitled for the benefit of exemption from levy of tax, the Commissioner, after examining the correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s court in the case of Sree Jagadish Colour Company v. Commissioner of Commercial Taxes, Karnataka reported in 1997] 107 STC 522. In the light of the rival contentions advanced by the learned counsel appearing for the parties, the following questions would arise for my consideration: 1.. Whether the writ petitions filed by the appellants were not maintainable before this court on the ground that the appellants have alternative remedies provided under the Act? 2.. Whether the impugned proposition notices, annexures A, B and C dated January 25, 2005, January 18, 2005 and January 6, 2005 issued to the appellants 1 to 3 respectively and the orders of reassessment made as per as annexures K L, dated February 11, 2005 and annexures M N, dated February 5, 2005 respectively by the assessing authorities against the appellants, are liable to be quashed by this Court in exercise of its power under articles 226 and 227 of the Constitution of India, in view of circular, annexure D, dated December 31, 2004 issued by the Commissioner? 3.. Whether the parts of computer and computer peripherals are exempted from levy of TOT/RST under section 6-B of the Act in view of notifications, anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance of the assessees is that the assessing authorities have issued the proposition notices in the light of the instructions issued by the Commissioner in circular, annexure D, wherein he, in unequivocal terms, has held that it is only the sale of computer and computer peripherals falling under Sl. No. 20 of Part "C" of the Second Schedule to the Act is exempted from payment of TOT/RST-by a dealer under section 6-B of the Act and TOT/ RST on parts of computer and computer peripherals are not exempted, and in the light of the said view expressed by him he had directed the assessing authorities to reopen the assessments where the assessments have already been made in exercise of the power conferred on them under section 12-A of the Act and proceed for assessment in respect of which the assessment orders have not been made. Sub-section (1) of section 3-A of the Act confers power on the State Government and on the Commissioner to issue such orders, instructions and directions to all officers and persons employed in execution of the Act as they may deem fit for the administration of the Act, and all such officers and persons are required to observe and follow such orders, instructions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of TOT/RST by a dealer under section 6-B of the Act. In addition to such unequivocal view expressed with regard to the liabilities of the assessees to pay TOT/RST on parts of computer and computer peripherals, he has also instructed the assessing authorities to reopen assessments which have already been made. In this connection, it is useful to refer to the instructions given at paragraph 3 of the circular, annexure D, which reads as hereunder: "3. In the circumstances the following instructions are issued: (1) All the assessing authorities shall immediately take up assessment proceedings in all pending cases of dealers of parts of computers and computer peripherals, and proceed to levy turnover tax, resale tax and additional tax on turnovers relating to sale of parts of computers and computer peripherals during the above periods at the rates prescribed under sections 6-B and 6-C. (2) All the assessing authorities shall immediately initiate reassessment proceedings under section 12-A, in cases where assessments have been already completed allowing exemption from turnover tax, resale tax and additional tax on turnovers relating to sale of parts of computers and computer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, inspecting authorities and audit officers and all Joint Commissioners to scrupulously follow the instructions given by him and also has cautioned that any deviation by them in not following the instructions, would be viewed seriously. When the Administrative head of the Department, who is conferred with the powers of giving instructions, has issued instructions/directions which are required to be followed by them and when he warns them that any default or failure on their part in not following the instructions scrupulously would be viewed seriously, can it be expected that they would exercise their discretion conferred on them under section 12-A of the Act independently while proceeding to consider the returns submitted by the assessees or while exercising their power of reassessment under section 12-A of the Act? Merely because, the proviso given to sub-section (1) of section 3-A of the Act, prohibits the Commissioner to give any instructions which interferes with the power of the appellate authority, in our view, it is not possible to even remotely think that the concerned authorities will go against the instructions given by the Commissioner in circular, annexure D and give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o independently apply their mind as to whether an order of reassessment should be made or not. Therefore, I am of the view that the view taken by the learned single Judge, having regard to the facts and circumstances of the case that it is not appropriate for him to interfere against the impugned proposition notices, was not justified. In my view, I am also supported by the judgment of the Supreme Court in the case of Filterco v. Commissioner of Sales Tax, Madhya Pradesh [1986] 61 STC 318 (SC); 1986] 2 SCC 103, wherein the Supreme Court, fairly under similar circumstances, has taken the view that the writ petitions filed are maintainable and the High Court could examine the case on merits. In the said case the assessees challenged the order passed by the Commissioner wherein the Commissioner had taken the view that the expression "cloth" will take in non-woven material inclusive of "felt", pliability being an essential attribute of "cloth" and only those varieties of felt manufactured by the appellants satisfied the test of pliability can be legitimately classified as "cloth". The writ petition filed by the assessees in these cases came to be dismissed by the High Court on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his is clear from the observation made at paragraph 5 of the judgment, which reads as hereunder: "5. Learned Standing Counsel has raised the question of maintainability of the writ petition, as only a notice has been challenged in the present case. Learned counsel for the petitioner submits that the writ petition is maintainable and the alternative remedy is wholly illusory in the facts of the present case as the authorities under the Act are bound by the circular issued by the Commissioner of Sales Tax. This matter has been considered by a division Bench of this court reported in P.N.C. Construction Company Limited v. State of U.P. [2002] 128 STC 476 (All); 2002 UPTC 262. It has been held that it is the well-settled legal position that where the proceeding is wholly without jurisdiction, the High Court can entertain the writ petition and pass appropriate orders. Therefore, we do not find any substance in the contention of learned Standing Counsel. The submission on the other hand is that the impugned notice is wholly without jurisdiction, as the Tribunal has set the matter at rest and the Commissioner of Sales Tax cannot take a different view on the question of law. Moreover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssional services within the purview of section 194-C of the Income-tax Act, 1961 requiring deduction of income-tax at source. The circular expanded the scope of section 194C. The counsel for the department had submitted that the correctness of the circular could be canvassed before the assessing authorities. Alternatively, the assessing authorities could be directed to dispose off the assessment without reference to the circular. This court held that such a direction of disposal would not do any real or effective justice to the parties who have approached the court, and the threat imposed by such circulars was real and substantial and had the consequence and effect of a constrained influence on the authorities functioning under the Act. This court further held that having regard to the authority which issued the circular and the source of power, the threat could not be completely erased except by quashing and setting aside the circular." Further, in the case of Himmatlal [1954] 5 STC 115 (SC); AIR 1954 SC 403 the Supreme Court has laid down that the Supreme Court will not issue a prerogative writ when an adequate alternative remedy is available will not apply where a party came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court will never entertain a petition against the order of the taxing officer. The High Court has undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes any fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the eligibility to tax of transactions the nature of which is admitted, but the High Court normally does not proceed to ascertain the nature of a transaction which is alleged to be taxable. The High Court leaves it to the taxpayer to obtain an adjudication from the taxing authorities in the first instance." In the light of the discussion made above and also in the light of the judgment of the Supreme Court and the High Courts referred to above, I am of the view that the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act confers power on the assessing authority to assess or reassess to best of its judgment the tax payable by the dealer in respect of such turnover, after issuing a notice to the dealer and after making such enquiry, as it may consider necessary. In the instant case, the question that had arisen for my consideration is as to whether the exemption was wrongly allowed in respect of parts of computer and computer peripherals. If the assessing authority is satisfied that while making assessment, exemption have been wrongly allowed, it is empowered to reopen the assessment and proceed to make orders of reassessment. The satisfaction that the exemption was wrongly allowed should be to the satisfaction of the assessing authority and none else whosoever higher in position that authority may be. This is clear from the scheme of the Act. If the order of assessment made is prejudicial to the interest of Revenue, it is open to the revisional authorities to invoke their suo motu jurisdiction conferred on them under section 22-A(1) and 22-A(2) of the Act. In the instant case none of the authorities had exercised their revisional jurisdiction either under section 22-A(1) or under section 22-A(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter peripherals are not exempted from payment of TOT/RST by a dealer under section 6-B of the Act. When a suo motu revisional power is reserved on the Commissioner, instead of exercising that power he abdicates that power and directs the assessing authorities to make an order of reassessment in the way he intends them to do. In other words, by giving instructions/ directions in circular, annexure D, he interferes with the discretion conferred on the assessing authorities in the matter of making an order of assessment or reassessment. Order of reassessment cannot be made by an assessing authority under section 12-A of the Act unless the assessing authority is satisfied that the exemption has been wrongly granted. As noticed by me earlier, it is for the assessing authority to apply its mind and to satisfy itself as to whether exemption has been wrongly granted to all the assessees who sought exemption including the appellants. The sequence of events in the present case discloses that the assessing authorities, who had granted the exemption, proceeded to issue proposition notices under section 12-A of the Act only in the light of instructions given in circular, annexure D. Merely beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57), the Government of Karnataka hereby exempts with immediate effect, the turnover tax payable under section 6-B of the said Act on the turnover relating to the following, namely: 1.. Computer, computer peripherals, computer consumables and computer cleaning kit falling under Sl. No. 20 of Part 'C' of the Second Schedule. 2. . . . . ." Notification annexure F, reads as follows: "In exercise of the powers conferred by section 8-A of the Karnataka Sales Tax Act, 1957 (Karnataka Act 25 of 1957), the Government of Karnataka hereby exempts with effect from the first day of April, 2001, the turnover tax payable by a dealer under section 6-B of the said Act on the turnovers relating to the following goods, namely: 1 to 8 . . . . . 9. Computers, computer peripherals, computer consumables and computer cleaning kits falling under Serial Number 20 of Part 'C' of the Second Schedule." Notification annexure G, reads as follows: "In exercise of the powers conferred by section 8-A of the Karnataka Sales Tax Act, 1957 (Karnataka Act 25 of 1957), the Government of Karnataka hereby exempts with effect from the first day of April, 2002, the resale tax payable by a dealer unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition. Immediately after the description of various types of computers, the words "and he like" and the words "and their parts" are referred to. The question is, the words "and their parts" following the words "and the like" are to be read conjunctively as contended by the learned counsel for the assessees, or distinctively as contended by the learned Advocate-General and they should be excluded from the definition of computer? In my view, it is not possible to read the words "and their parts" distinctively as it follows the words "and the like". It is necessary to point out that the items mentioned in Sl. No. 20 are made liable for sales tax under section 5(3) of the Act. Under these circumstances, if the Legislature intended to notify various types of computers specifically referred to in Sl. No. 20 of Part "C" of the Second Schedule to the Act, and also the types of computers which are similar to the various types of computers referred to in Sl. No. 20(i) of Part "C " of the Second Schedule and in addition to that if the Legislature intended that its parts also should be read as computer, it is reasonable to take the view, by legal fiction, the Legislature, for the purpose of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment, which reads as hereunder: "12. Re(1). As already indicated Barnes High School is a recognised Anglo-Indian School which has all along been imparting education through the medium of English. It receives aid out of State funds. The daughter of Major Pinto and the son of Dr. Gujar are citizens of India and they claim admission to Barnes High School in exercise of the fundamental right said to have been guaranteed to them by article 29(2) of the Constitution. The School has declined to admit either of them in view of the circular order of the State of Bombay. The provisions of the circular order, issued by the State of Bombay on January 6, 1954, have already been summarised above. The operative portion of the order, set forth in clause 5 thereof, clearly forbids all primary or secondary schools, where English is used as a medium of instruction, to admit to any class any pupil other than a pupil belonging to a section of citizens, the language of which is English namely Anglo-Indians and citizens of non-Asiatic descent. The learned Attorney-General contends that this clause does not limit admission only to Anglo-Indians and citizens of non-Asiatic descent, but permits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Fourth Edition, Volume 5, has observed that the words "that is to say" are employed to make clear and fix the meaning of what is to be explained or defined; and such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. It is useful to refer to the observation made at paragraph 7 of the judgment, which reads as hereunder: "7. What we have inferred above also appears to us to be the significance and effect of the use of words 'that is to say' in accordance with their normal connotation and effect. Thus, in Stroud's Judicial Dictionary, Fourth Edition, Volume 5, at page 2753, we find: That is to say. (1) 'That is to say' is the commencement of an ancillary clause which explains the meaning of the principal clause. It has the following properties: (1) it must not be contrary to the principal clause; (2) it must neither increase nor diminish it: (3) but where the principal clause is general in terms it may restrict it; see this explained with many examples, Stukeley v. Butler Hob, 171. The quotation, given above, from Stroud's Judicial Dictionary shows that, ordinarily, the expression ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, it does not give scope for any doubt that "peripherals" means all kinds of printers and their parts. This is clear from the words "that is to say ". The words "that is to say" explains what is meant by peripherals and in that under clause (a) all kinds of printers and its parts are treated as peripherals. Further, reference also is made to various types of printers. Similar is the position under clause (b) of Sl. No. 20(ii) of Part "C" of the Second Schedule to the Act. Terminals, scanners, multimedia kits, plotters, modem and their parts are treated as peripherals. It is because the words "that is to say" refers to various types of peripherals referred to under clause (b) of Sl. No. 20(ii) of Part "C" of the Second Schedule which includes their parts. The words "and their parts" following specific types of peripherals following the words "that is to say", in my considered view, does not give scope to doubt the contention of the learned counsel for the assessees that the parts of peripherals are also, by legal fiction, made as peripherals under Sl. No. 20(ii) of Part "C " of the Second Schedule to the Act. Further, the object of providing what is meant by "computer" and what i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipherals are also exempted from levy of TOT/RST under section 6-B of the Act? The reading of exemption notifications, annexures E, F and G, in the context, make it clear that it intended to give exemption to all the items of computers and their peripherals and their parts. This is clear from the fact that the notification, annexure E, grants exemption to computers, computer peripherals, computer consumables and computer cleaning kits falling under Sl. No. 20 of Part "C" of the Second Schedule. Same is the language employed in notifications annexures F and G. In the context, it should be understood that the exemption notifications intend to exempt all the items referred to in Sl. No. 20 of Part "C" of the Second Schedule and if the intention was not to grant exemption for all the items referred to in Sl. No. 20 of Part "C" of the Second Schedule to the Act, in the exemption notification referred to above, the language would not have been to the effect that "falling under Sl. No. 20 of Part 'C' of the Second Schedule". The words "falling under Sl. No. 20 of Part 'C' of the Second Schedule" make it clear that all the items referred to in Sl. No. 20 of Part "C" of the Second Schedule a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in the case of Krishi Utpadan Mandi Samiti, Kanpur [1985] 58 STC 23 (SC), wherein the question that came up for consideration before the Supreme Court was whether legume, whole grain, when notified as a "specified agricultural produce" within the meaning of the expression of section 2(t) of the U.P. Krishi Utpadan Mandi Adhiniyam Act, 1964 would also comprehend its split, folds of parts, commercially called "dal" so as to enable the Market Committee to levy market fee under section 17 of the Mandi Adhiniyam Act on the transaction of sale of "dal" of legumes specified in the Schedule to the Mandi Adhiniyam Act. The court, on consideration of the definition of "agriculture produce", took the view that it would mean not only those items of produce of agriculture as specified in the Schedule, but will also include the admixture of two or more of such items as also any such item in its processed form. It is useful to refer to the observation made in the course of judgment at page 30, which reads as hereunder: ". . . . .Analysing the definition of the expression 'agricultural produce', it would mean not only those items of produce of agriculture as are specified in the Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 8(1) of the Central Excise Rules, 1944 which exempted goods falling under item 68 of the First Schedule to the Central Excises and Salt Act, 1944 manufactured in a factory as a job work from exemption duty of excise leviable thereon as is in excess of the duty calculated on the basis of the amount charged for the job work. While considering the said question, after referring to cleavage of opinion expressed by various High Courts and various Benches of Customs, Excise and Gold Appellate Tribunal, the Supreme Court held that once an expression is defined in the Act, that expression wherever it occurs in the Act, Rules or Notifications issued thereunder should be understood in the same sense. The observation made by the Supreme Court at paragraph 16 of the judgment, reads as hereunder: "16. In our opinion, while the Calcutta and Gujarat High Courts have by and large understood the notification correctly, their reasoning is vitiated by their omission to understand the expression 'manufacture' in the sense it is defined in the Act. Both the High Courts have understood the expression 'manufacture' in its ordinary/ normal sense (as pointed out by this court in Delhi Cloth and Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e oils or with other coal tar distillation products'. Therefore, 'tar' will include everything which has been included in the extended definition. Having regard to the wording of the notification and wording of the tariff item No. 11, we have no doubt that the product of the assessee (PCM) qualifies for the benefit of the exemption notification." From the principle enunciated by the Supreme Court in the decisions referred to above, it is clear that the language employed in the exemption notifications and items in respect of which exemption has been given, has to be understood in the context in which exemption notifications came to be issued. No doubt, it is the submission of the learned Advocate-General that the exemption notifications have to be strictly construed. While it is true that the exemption notification has to be strictly construed, if there is any doubt that if the language employed in exemption notification admits of two views and is not clear and ambiguous, in my view, the view, which is beneficial to the assessee, will have to be taken. In my view, I am also supported by the decision of the Supreme Court in the case of Poulose Mathen v. Collector of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y exempting levy of tax on parts of computer and computer peripherals. It is also necessary to point out that though the understanding of the assessing authorities is not conclusive or final, in the instant case all the assessing authorities excepting the one, have taken the view ever since the year 1997-98 that the parts of computer and computer peripherals are exempted from levy of tax. Further, the revisional authorities also have not exercised the suo motu power conferred on them under sections 21 and 22-A(2) of the Act thereby impliedly approving the decisions of the assessing authorities. All these indicate that the assessing/revisional authorities and the Commissioner, till the objection was raised by the Deputy AccountantGeneral, have understood that the exemption notifications as exempting parts of computer and computer peripherals from levy of TOT/RST under section 6-B of the Act. The Commissioner also, in his circular annexure H, has clarified that the parts of computer and computer peripherals are exempted from levy of TOT/RST under section 6-B of the Act. The contemporaneous interpretation placed by the assessing authorities and also the clarification issued by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng before it is overturned; such a construction, commonly referred to as practical construction, although non-controlling, is nevertheless entitled to considerable weight, it is highly persuasive'. The validity of this rule was also recognised in Baleshwar Bagarti v. Bhagirathi Dass [1908] ILR 35 Cal. 701, 713, where Mookerjee, J. stated the rule in these terms: 'It is a well-settled principle of interpretation that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it.' and this statement of the rule was quoted with approval by this Court in Desh Bandhu Gupta and Co. v. Delhi Stock Exchange Association Ltd. [1979] 4 SCC 565; AIR 1979 SC 1049. It is clear from these two circulars that the CBDT, which is the highest authority entrusted with the execution of the provisions of the Act, understood sub-section (2) as limited to cases where the consideration for the transfer has been understated by the assessee and this must be regarded as a strong circumstance supporting the construction which we are placing on that sub-section." Further, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of this court has recognised that such withdrawal made by the Commissioner was valid. We are bound by that decision. Even otherwise, we do not see any justification to hold that the same requires reconsideration ." Therefore, I do not find any merit in the submission made by some of the learned counsel appearing for the assessees in the connected matters that the Commissioner had no authority in law to withdraw the clarification annexure H, issued by him, by means of circular, annexure J. Accordingly question No. 4 is answered. Regarding Question No. 5: The only question that remains to be adverted to is, even if it is held that the parts of computer and computer peripherals are not included in the exemption notifications, in view of clarification, annexure H, whether the department is bound to give the benefit of exemption to the assessees? No doubt, it is the contention of the counsel for the assessees that in view of the clarification, annexure H, issued by the Commissioner taking the view that the parts of computer and computer peripherals are exempted from levy of TOT/RST payable by a dealer under section 6-B of the Act, said clarification is binding on all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant case, as noticed by me earlier, the clarification, annexure H, was withdrawn on December 23, 2004 by means of circular, annexure J. Therefore, the said clarification was in operation only for a period of seven days. Therefore, the clarification would be binding on the department only for a period of seven days and it cannot be held binding on the department in respect of the assessments already made prior to the issue of circular, annexure H. Further, it is necessary to point out that if the assessing authorities have made a mistake and wrongly granted exemption, section 12-A of the Act confers power on them to reopen the assessments and proceed to make fresh orders of assessment. When the law reserves the power to the assessing authorities under section 12-A of the Act to reopen the assessments with regard to the wrong exemption granted, it is not permissible for the assessees to contend that the State is bound by the order of assessment made by large number of assessing authorities granting exemption and under those circumstances it must be held that the clarification made by the Commissioner binds the departments. In my view, none of the decisions relied upon by the couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may from time to time, issue such orders, instructions and directions to all officers and persons employed in the execution of this Act as they may deem fit for the administration of this Act, and all such officers and persons shall observe and follow such orders, instructions and directions of the State Government and the Commissioner: Provided that no such orders, instructions or directions shall be issued so as to interfere with the discretion of any appellate authority in the exercise of its appellate functions. (2) Without prejudice to the generality of the foregoing power, the Commissioner may, on his own motion or on an application by a registered dealer liable to pay tax under the Act, if he considers it necessary or expedient so to do, for the purpose of maintaining uniformity in the work of assessments and collection of revenue, clarify the rate of tax payable under this Act in respect of goods liable to tax under the Act, and all officers and persons employed in the execution of this Act shall observe and follow such clarification: Provided that no such application shall be entertained unless it is accompanied by proof of payment of such fee, paid in such manne ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
