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TMI Blog2008 (8) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Therefore, rule 90AA has an application only to the extent of the tax payable under section 5 of the Act. Section 5A was added by amendment with effect from July 1, 1990. The Legislature has not given any indication that such payment will not be made where agreement for compounding exists. Therefore, we hold that surcharge under section 5A is to be paid in addition to tax payable under section 5 of the Act. Thus, the questions are answered in favour of the Revenue and against the assessee. - S.T. Rev. No. 354 of 2008 - - - Dated:- 13-8-2008 - CHAUHAN B.S. DR. C.J. AND MAHAPATRA B.N. , JJ. DR. B.S. CHAUHAN C.J. In this sales tax revision the following questions have been raised by the assessee: (a) Whether, in the facts and circumstances of the case, surcharge is leviable on compounding of tax on outstill liquor under rule 90AA of the Orissa Sales Tax Rules, 1947 read with first proviso to section 5 of the Orissa Sales Tax Act, 1947. (b) Whether, in the facts and circumstances of the case, the findings of the learned Sales Tax Tribunal can be sustained in law? The facts and circumstances giving rise to this case are that the petitioner is a registered dealer und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression tax payable used in different provisions of the OST Act except in section 5A conveys an altogether different meaning, namely, tax including surcharge. Whereas, tax payable used in section 5A indicates merely tax payable but not surcharge. Tax assessable on taxable turnover is therefore to be read as meaning tax and surcharge assessable on taxable turnover. Surcharge is payable on tax payable under section 5A and tax payable is on taxable turnover as defined under sections 5(2)(A) and 5(2)(AA) of the Act. Therefore, the further expression pay in lieu of denotes a quantifiable sum of money the payment of which discharges a dealer of his tax liability under rule 90AA and the said amount which equates to 20 per cent of 1 times of the amount payable to Government (Excise Department) as a consolidated amount which cannot be understood to mean further levy of surcharge on the said amount. Therefore, the question has to be answered in favour of the assessee. On the contrary Mr. Dalai, learned counsel for the Revenue, has submitted that surcharge provided under section 5A of the Act, which provides for surcharge is an additional tax and it is to be calculated at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 203, pay in lieu of the tax assessable on his taxable turnover under the provisions of the Act, a sum equal to 20 per cent of one-and-one-half times of the consideration money payable to Government in the Excise Department for obtaining the exclusive privilege to vend such commodities. It is evident from the aforesaid statutory provisions that section 5 provides for tax payable by a dealer under the Act and it is to be levied on the taxable turnover at the rate fixed by the State authorities subject to certain conditions. The proviso thereto enables the Revenue and the assessee to have a lump sum agreement for making the payment. Rule 90AA provides that a dealer carrying on the business of outstill liquor and who is liable to pay tax on taxable turnover, may pay a fixed amount depending upon the amount paid by him as a consideration to the Excise Department for obtaining the exclusive privilege to vend such commodities. The Tribunal has given serious consideration to the issue agitated before us and it has held as under: Question of surcharge has been raised in SA No. 2680 of 2003-04, SA No. 2681 of 2003-04 and it is urged by the appellants that they are not liable to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire exercise to enact such a provision was most unwarranted besides being uncharitable. (Vide Sri Ram Ram Narain Medhi v. State of Bombay AIR 1959 SC 459, R.G. Jacob v. Republic of India AIR 1963 SC 550, Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar AIR 1965 SC 1457, Anandji Haridas Co. Pvt. Ltd. v. Engineering Mazdoor Sangh AIR 1975 SC 946, Commissioner of Sales Tax, U. P. v. Madan Lal Das Sons, Bareilly [1976] 38 STC 543 (SC); AIR 1977 SC 523, Annapurna Biscuit Manufacturing Co., Kanpur v. Commissioner of Sales Tax, U.P., Lucknow [1981] 48 STC 254 (SC); AIR 1981 SC 1656, Vazir Sultan Tobacco Co. Ltd. v. Commissioner of Income-tax, Andhra Pradesh, Hyderabad [1981] 132 ITR 559 (SC); AIR 1981 SC 2105, M.V. Elisabeth v. Harwan Investment Trading Pvt. Ltd. AIR 1993 SC 1014, Sultana Begum v. Prem Chand Jain AIR 1997 SC 1006, State of Bihar v. Bihar Distillery Ltd. AIR 1997 SC 1511, Institute of Chartered Accountants of India v. Price Water house AIR 1998 SC 74, South Central Railway Employees Co-operative Credit Society Employees' Union, Secundrabad v. Registrar of Co-operative Societies AIR 1998 SC 703, Subhash Chander Sharma v. State of Punjab AIR 1999 SC 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 All ER 155. A similar view has been reiterated by the apex court in Shyam Kishori Devi v. Patna Municipal Corporation AIR 1966 SC 1678. In S.P. Gupta v. President of India AIR 1982 SC 149, the issue was considered at length and it was held as under: (5) Where the scheme of a statute clearly shows that certain words or phrases were deliberately omitted by the Legislature for a particular purpose or motive, it is not open to the court to add those words either by conforming to the supposed intention of the Legislature or because the insertion or the omission suits the ideology of the judges deciding the case. Such a course of action would amount not to interpretation but to interpolation of the statutory or constitutional provisions, as the case may be, and is against all the well established canons of interpretation of statutes. The main reason behind the principles enunciated above is that the Legislature must be presumed to be aware of the expanding needs of the nation, the requirements of the people and above all, the dominant object which the legislation seeks to subserve. Thus, where the language is plain and unambiguous the court is not entitled to go behind the languag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has said and even if there is some defect in the phraseology, etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. In view of the above, we are of the considered opinion that it is not permissible for the court to add or subtract any word from the statute while interpreting, as it may amount to legislation which is not permissible for the court. In view of the above, the arguments advanced on behalf of the assessee are not acceptable. The words in addition to the tax payable contained in section 5A make it crystal clear that surcharge is leviable under a different provision altogether as an additional/extra/superadded tax over and above the tax payable under section 5 of the Act. Rule 90AA makes it evident that the payment of composite tax is only in lieu of tax assessable on the taxable turnover under the provisions of the Act. Therefore, rule 90AA has an application only to the extent of the tax payable under section 5 of the Act. Section 5A was added by amendment with effect from July 1, 1990. The Legislature has not given any indication that such payment will not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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