9911796707
TMI Blog2010 (9) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... re essential to lay the preface of the adjudication. The petitioner in WP(C) 4859/2009 has introduced itself to be a Private Limited Company registered under the Companies Act 1956, engaged in the manufacture, sale and supply of P.V.C. Pipes and Plastic Water Tanks, having its principal place of business at Bonda, Narengi, Guwahati, Assam. It claims to be a small scale industry and registered earlier as a dealer under the Act 1993 and presently under Act 2003 and also the Central Sales Tax Act 1956. According to the petitioner, it had been submitting its monthly returns and paying tax as per the same as due from it. 4. During the assessment year 2004-2005, it made supply of P.V.C. Pipes to the Government Departments to the tune of ₹ 4,26,04,836/- and in terms of the notification No. FTX.189/93/Pt./258 dated 3/1/2003 issued under section 9(3) of the Act 1993 it charged concessional rate of tax @ 4.4% on the related bills against relevant declaration Forms furnished by the indenting departments. The above notification in the interpretation of the petitioner was in force on and from 3/1/2003 to 3/1/2006. 5. The assessment proceeding for the aforementioned period i.e. 2004- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004-2005 and a Bakijai Case against being No. 60/09-10/AGST has been registered. Though the petitioner has submitted its reply to the notice in the Bakijai proceedings, following the dismissal of the revision petition, the Certificate Officer (Taxation), Guwahati, vide memo No. 669 dated 7/10/2009 has directed payment of the arrear dues within the period as mentioned therein. 8. The Revenue in its affidavit through the respondent No. 3 has pleaded retrospective effect of the notification dated 3/1/2003 on and from 1/5/2001 contending that its life term ran upto 30/4/2004. It has been asserted that the petitioner had paid tax at the concessional rate for the period August 2001 to January, 2003 which clearly indicated its acceptance of the retrospectivity of the notification concerned. According to the Revenue, if the petitioner in fact had charged lower rate of tax from the Government Department for the supplies made by it beyond the validity of the notification, it was at its risk and that the same did not absolve it of its liability to pay tax at the normal rate after the lapse thereof. While endorsing the clarification provided to the notification by the Commissioner of Taxes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/2003 was effective on and from 1/5/2001 inferring the same from the conduct of the transacting parties including the petitioner charging the tax at concessional rate, he urged. Dr. Saraf has maintained that not only the attempt to accord the notification dated 3/1/2003 a retrospective effect is both incomprehensible and impermissible under the Act 1993, the petitioner having charged tax at the concessional rate during the period beyond 1/5/2004 from the consumers, the interpretation of the respondent authorities, if sustained, would result in colossal loss to it and undue enrichment for the revenue. To reinforce his arguments, Dr. Saraf has led this Court to the relevant provisions of the Act 1993 and 2003 besides pressing into service the decision of the Apex Court in The Income Tax Officer, Alleppy versus M.C. Ponnoose and others etc., (1969) 2 SCC 351 and Bakul Cashew Co. versus Sales Tax Officer, Quilon, (1986) 2 SCC 365. 11. In assiduous refutation of the above, Mr. Saikia has asserted that apart from the fact that the notification dated 3/1/2003 is not under challenge, it being apparent on its face that it was intended to be effective on and from 1/5/2001, no contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/2/2003 is also not in dispute. The parties are not at issue that for this period i.e. 1/5/2001 to 28/2/2003, the transactions under the Act drew tax liability at the exempted/reduced rate as envisaged in the notification dated 1/3/2003. This is evident from the pleaded deals with the exempted/reduced rate of tax. Obviously the parties to the transaction have availed the benefit of such exemption/reduction for the said period. 15. Do the words date of its issue signify irrefutably and indispensably the initiation of the period of exemption/reduction of the tax rate from the date of the notification and not otherwise is the poser. 16. The authorities cited at the Bar in essence propound that the permissibility or otherwise of according retrospectivity to a statutory provision would be contingent on the language employed and the prescription thereof to that effect in express terms or by necessary implication. This analogy applies to a delegated legislation as well. Retrospectivity of a legislation be it parent or delegated is thus not an anathema but is essentially tempered by the empowering statutory edict. 17. Maxwell in the Interpretation of Statutes, Twelfth Edition h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch in express words permit the State Government to issue a notification with a back date, the words date of issue is in no uncertain terms intended to be the starting point of the period of three years to avail the exemption or reduction in the rate of tax. By issuing this notification as is apparent in the contextual facts, the State Government desired a continuity in the exemption/reduction on and from 1/5/2001 and not 1/3/2003. The date of issue i.e. 1/3/2003, if construed to be the starting point of the grant of the exemption/reduction, it will not only be obviously against the apparent objective conveyed thereby but also lead to unwarranted anomalies and complications vis- -vis the past transactions closed and finalised during 1/5/2001 to 28/2/2003. Admittedly the petitioner and others participating in such transactions have availed the benefit of such exemption/reduction in tax rate and thus if the notification as has been done is construed to have been effective from 1/5/2001, the same would not in any manner prejudicially affect any of its vested rights. 20. The observations in the impugned order of the revisional forum in this perspective cannot be repudiated as unre ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
