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TMI Blog2018 (2) TMI 1655X X X X Extracts X X X X X X X X Extracts X X X X ..... consistently held in taxing statute, there is no equity. If tax has not paid as declared, within the time provided there for, consequences would follow. When the dealer had collected tax from the buyer, tax should be paid to the Government, within time. Retention of the same would amount to unjust enrichment. The respondent/assessee, cannot be permitted to avail the facility of on-line generation of Form C declaration. Appeal allowed - decided in favor of Revenue. - Writ Appeal No. 329 of 2018 - - - Dated:- 16-2-2018 - The Honourable Mr.Justice S.Manikumar And The Honourable Mrs.Justice V.Bhavani Subbaroyan For the Appellants : Mr.T.P.Manoharan Assisted by Mr.J.Kumaran Government Advocate (Pondy) For the Respondents : Mr.D.Geetha ORDER ( Order of the Court was made by S. Manikumar, J ) With the consent of the parties, writ appeal itself is taken up for final disposal. 2. Impugned notice, No.640/CTD/CTO(M)/2017-18, dated 12/12/2017, challenged, in W.P.No.33594 of 2017, is extracted hereunder:- The dealer M/s. Mahe Auto Fuel Enterprises with TIN No.34030006315 who is a registered dealer in the books and records of the Commercial Tax Officer, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the dealer for the months of September 2017 and October 2017 along with interest for the two months of September 2017 and October 2017. Therefore, the dealers are hereby instructed to remit the above mentioned amount on or before 22/12/2017 which is outstanding for the past two months, failing which the recovery action will be initiated as per Section 37 of Puducherry Value Added Tax Act, 2007. Till then the application of C-Form cannot be entertained by this office. 3. We have gone through the contents of the supporting affidavit to the writ petition and find that the first respondent has admitted that, as on 20/10/2017, tax to be paid was ₹ 2,18,02,440/-. But the first respondent has paid a sum of ₹ 1,00,04,645/-, on various dates, as detailed hereunder:- (i). D.D.No.758097 dated 26/10/2017 for ₹ 50,000/- (ii). D.D.No.758293 dated 27/11/2017 for ₹ 25,00,000/- (iii). D.D.No.758299 dated 27/11/2017 for ₹ 10,00,000/- (iv). D.D.No.758305 dated 28/11/2017 for ₹ 25,00,000/- (v). D.D.No.758306 dated 29/11/2017 for ₹ 24,54,645/- (vi). D.D.No.758308 dated 30/11/2017 for ₹ 15,00,000/- 4. Submission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is made clear that, this direction has been issued only in respect of the arrears for September 2017 and October 2017, and the same will not enure to the benefit of the petitioner for the future months and the petitioner has to pay the sales tax promptly for the future months. 7. Subsequently, on 9/1/2018, the matter has been listed, under the caption For Being Mentioned . On 9/1/2018, writ Court has issued clarifications as hereunder:- The matter has been listed under the caption for being mentioned'. 2. In paragraph 6 of the order dated 22/12/2017, this Court directed the petitioner to pay ₹ 35 lakhs and on such remittance, the second respondent should consider as to whether the online generation of Form C declaration could be unlocked. 3. The learned counsel for the petitioner submits that the petitioner apprehends that even after payment of ₹ 35 lakhs, the second respondent may not unlock the online facility. 4. Mr.J.Kumaran, learned Government Advocate, on instructions, submits that the discretion may be left with the authorities. 5. This Court, while issuing such direction, observed that the second respondent shall consider, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15/7/2017 27/10/2017 104 - do - 12 May 17 15/6/2017 7/7/2017 22 13 Apri 17 15/5/2017 5/6/2017 21 14 Mar 17 15/4/2017 4/5/2017 19 15 Feb 17 15/3/2017 28/3/2017 13 16 Jan 17 15/2/2017 27/2/2017 12 17 Dec 16 15/1/2017 27/1/2017 12 9. Mr.T.P.Manoharan, learned Senior Counsel for the appellants submitted that as per Section 24 of the Puducherry Value Added Tax Act, 2007, respondent No.1, in the instant appeal, who had collected tax from the public, along with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment (for a tax period or tax periods) by scrutiny of accounts and may make best judgement assessment if so required, where a. a person fails to file a return as required under sub-section (1); or b. the assessing authority is not satisfied with the correctness and completeness of a return filed by a person; or (c). the Commissioner has reasonable ground to believe that a person will become liable to pay tax under this Act but is unlikely to pay the amount due. 18. Chapter V of the Puducherry Value Added Tax Act, 2007, deals with Collection and Recovery. Section 37 of the said Act deals with the payment and recovery of tax and the same is extracted hereunder:- (1). The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than twenty-one days from the date of service of the notice. If default is made in paying according to the notice of assessment, the whole of the amount outstanding on date of default shall become immediately due and shall be a first charge on the properties of the dealer liable to pay the tax under this Act. (2). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the purposes of collection and recovery and shall be without prejudice to the institution of any proceeding for an offence under this Act, or for the recovery of the entire amount remaining unpaid under this Act. 20. Section 43 of the said Act, deals with withholding issue of statutory forms and seizure of goods:- (1). Notwithstanding that any recovery proceeding initiated under this Act, the Assessing Officers or any other Officers authorised in this regard, shall have power to withhold issue of statutory or other declaration forms to a dealer from whom any tax or penalty, interest or any other amount payable under this Act is due. (2). The Assessing Officer or any other authorised officer empowered in this regard shall also have the power to seize and confiscate goods being transported by a dealer from whom tax, penalty, interest or any other amount payable under this Act is due. 21. Section 24 of the Act, which deals with assessment of tax, falls under Chapter IV of the Puducherry Value Added Tax Act, 2007. Every registered dealer shall file a tax return for each tax period within fifteen days after the end of the period in such manner as may be describe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of tax, in instalments, if permitted under Section 37 of the Puducherry Value Added Tax Act, 2007, are entirely different and distinct. There is a mandatory requirement of payment of tax, along with returns to be submitted under sub-Section 2 of Section 24 of the Act of Puducherry Value Added Tax Act, 2007. There is no provision in Puducherry Value Added Tax Act, 2007, to withhold the tax due and payable to the Government when self-assessment is made and returns are filed. 26. Provision in Section 37 of the Puducherry Value Added Tax Act, 2007, conferring discretionary power, on the assessing Officer, to issue notice for payment of tax, assessed by the Officer, cannot be imported into Section 24 (2) of the Puducherry Value Added Tax Act, 2007, wherein the assessee/respondent is mandated to pay tax, on the self-assessment made, when returns are submitted. There is no provision in the Puducherry Value Added Tax Act, 2007, enabling the assessee to pay tax in instalments, at the time when self declaration is made. Payment of tax along with returns submitted by the dealer, on self assessment is different than tax payable on assessment by the assessing officer. Sections 24 (2) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the legislature s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there. (iii) In Institute of C.A. of India v. Ajit Kumar Iddya reported in AIR 2003 Kant. 187, the Karnataka High Court held that, So far as the cardinal law of interpretation is concerned, it is settled that if the language is simple and unambiguous, it is to be read with the clear intention of the legislation. Otherwise also, any addition/subtraction of a word is not permissible. In other words, it is not proper to use a sense, which is different from what the word used ordinarily conveys. The duty of the Court is not to fill up the gap by stretching a word used. It is also settled that a provision is to be read as a whole and while interpreting, the intention and object of the legislation have to be looked upon. However, each case depends upon the facts of its own. (iv) In Sanjay Singh v. U.P. Public Service Commission repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e read in, nothing is to be implied. (iii) In State of Punjab v. Jullunder Vegetable Syndicate reported in AIR 1955 SC 1295, the Hon'ble Apex Court held that in taxing statutes the language cannot be strained. (iv) In A.V. Fernandez v. State of Kerala reported in AIR 1957 SC 657, the Hon'ble Supreme Court of India held that, If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the taxing statute no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. (v) In Commissioner of Sales Tax, Uttar Pradesh Vs. The Modi Sugar Mills Ltd., reported in AIR 1961 SC 1047, the Hon'ble Supreme Court observed thus: In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x law i.e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it is for the legislature to do the needful in the matter. (x) In Raghunath Rai Bareja Vs. Punjab National Bank reported in (2007) 2 SCC 230) the Hon'ble Supreme Court, at para 40 held thus: 40. It may be mentioned in this connection that the first and the foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statue. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB Vs. Securities and Exchange Board of India (AIR 2004 SC 4219)....... (xi) Thus from the foregoing judgments, it is clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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