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TMI Blog2022 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... ery same allegations namely carry forward of excess ITC for the next assessment year. The quantum is also the same - the decision rendered by the Learned Writ Court validating the notice issued under Section 9 of the CST Act read with Section 46 of the WBVAT Act binds the assessee and it will also bind the tribunal on account of the fact that the notice impugned before the tribunal was issued under Section 46 of the WBVAT Act. However, we do not wish to comment upon as to whether who was at fault in not placing the order passed in the writ petition before the tribunal as the legal position is clear that the order passed in the writ petition would bind the tribunal. In fact, the tribunal in its order would state that the order passed in the writ petition has persuasive value, however to our mind the order binds the tribunal more particularly when the assessee is the same person and the transaction based on which the assessment proceedings were proposed to be initiated is the same transaction. Hence, the tribunal was fully justified in reviewing its decision. Whether there was a mistake apparent on the face of the order? - HELD THAT:- It appears that the tribunal allowed the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46 (1) of the Act. The rule of ejusdem generis is inapplicable to the case on hand as Section 46 (1) (b) does not contain enumeration of specific words; the circumstance enumerated in clause (b) does not constitute a class or category; contingencies mentioned therein is not exhausted by enumeration; the general terms do not follow the enumeration and there is clear indication of a different legislative intent. The words or for any other reasons should be given the widest meaning bearing in mind the scheme of the provisions of WBVAT - the notice was issued by respondent on the assessee are valid in law. Petition dismissed. - W.P.T.T. NO. 02 OF 2018 WITH MAT 1911 OF 2017 IA NO. CAN 1 OF 2017 (OLD NO. 10773 OF 2017) - - - Dated:- 31-1-2022 - HON BLE MR. JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE HIRANMAY BHATTACHARYYA Appearance:- Mr. Vinay Kr. Shraff Mr. Himangshu Kumar Ray Ms. Priya Sarah Paul Mr. Preet Kamal Chawla.......For the Petitioners Mr. Anirban Ray, Learned Government Pleader. Ms. S. Mukherjee Mr. T.M. Siddiqui Mr. Debasish Ghosh For the Respondents JUDGMENT (T.S. SIVAGNANAM, J.) 1. The petitioner/appellant in both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same grounds which were canvassed before the tribunal challenging the notice dated 16.08.2017 under Section 46 of the WBVAT. The Learned Single Bench by order dated 11.09.2017 dismissed the writ petition on the ground that the assessee cannot contend that the revenue has acted wholly without jurisdiction in issuing the notice and it is within his purview to take cognizance of the situation mentioned under Section 46(1)(b) of WBVAT as the revenue was prima facie satisfied that the State Government has suffered loss of revenue and there are adequate reasons for the purpose of calling for an explanation. Thus, the Learned Single Bench held that the notice is not vitiated by any perversity and cannot be interfered in a writ petition. The revenue filed the review petition before the tribunal by referring to the order passed in WP No. 23339(W) of 2017 dated 11.09.2017 on the ground that sub clause (b) of Subsection (1) of Section 46 provides for reasons to initiate proceedings of assessment which includes for any other reasons to be recorded in writing by the Commissioner and such reasons was recorded in the notice. Secondly, it was contended that in so far as an identical noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings under Section 46 of the WBVAT are limited to four circumstances namely when no return has been filed; when there has been short payment of net tax; when there has been excess claim of net tax credit and when the State Government has suffered loss or any other reasons. Therefore, it is submitted that only if any of these four circumstances are attracted assessment proceedings can be initiated under Section 46 of the Act. Further, it is contended that the carrying forward of excess input tax credit (ITC) does not connote loss of revenue to the Government and therefore Section 46 could not have been invoked. It is further submitted that the phrase for any other reasons used in Section 46 (1) (b) of the WBVAT should be interpreted in terms of the rule of construction noscitur a sociis . It is submitted that according to the said rule when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense and they take their colour from each other, that is, the more general is restricted to a sense analogous to less general. Therefore, it is submitted that, applying the rule of noscitur a sociis, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or say anything in vain or for no purpose. Thus, a construction which leads to redundancy of a portion of the statute cannot be accepted in the absence of compelling reasons. Though, the Learned Counsel had placed reliance on the decision of the Hon ble Supreme Court in L. Chandra Kumar Vs. Union of India (1997) 3 SCC 261 , to contend that the writ petition could not have been entertained as the jurisdiction tribunal and in terms of the decision in L. Chandra Kumar, an aggrieved party can approach the Division Bench of this Court against any order passed by the tribunal which exercises jurisdiction equal and to that of the Single Bench of this Court and therefore there was no infirmity in not bringing to the notice of the tribunal about the order passed by the Learned Single Bench refusing to quash the notice as the two orders were delivered under separate legislation namely the notice which was challenged in the writ petition was issued under the CST Act and the decision of the tribunal was on a challenge to the notice issued under the WBVAT. Though such contention was advanced during the course of argument, the Learned Counsel for the appellant would fairly state that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that the word include occurring in Section 2 (34) of the Rajasthan Sales Tax Act 1944 came for an interpretation. It was held that word include gives a wider meaning to the words or phrases in the statute as the words are usually used in the interpretation clause in order to enlarge the meaning of the words in the statute. It was further pointed out that when the word includes is used in the words or phrases, it must be construed as comprehending not only such things as they signify according to their nature and impact but also those things which the interpretation clause declares they shall include. (In Commercial Taxation Officer, Udaipur Vs. Rajasthan Taxchem Limited (2007) 3 SCC 124). Further it is submitted that the theory of ejusdem generis is wholly inapplicable as clause (b) of Section 46 (1) uses the words or for any other reasons to be recorded in writing, including for the purpose of refund of tax . It is submitted that what is important to note is there is a comma before the words or for any other reasons . Thus, the Learned Single Bench was right in refusing to interfere with the impugned notice. Further it is submitted that in terms of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017. The notice issued under Section 46 read with Section 66 of the WBVAT Act was impugned before the tribunal. The notice which was impugned in the writ petition was issued under Section 9 of the CST Act read with Section 46 of the WBVAT Act. It cannot be disputed by the assessee that the machinary provisions as contained in the WBVAT Act are required to be applied while completing an assessment under the CST Act. Therefore, the decision rendered by the Learned Writ Court validating the notice issued under Section 9 of the CST Act read with Section 46 of the WBVAT Act binds the assessee and it will also bind the tribunal on account of the fact that the notice impugned before the tribunal was issued under Section 46 of the WBVAT Act. However, we do not wish to comment upon as to whether who was at fault in not placing the order passed in the writ petition before the tribunal as the legal position is clear that the order passed in the writ petition would bind the tribunal. In fact, the tribunal in its order would state that the order passed in the writ petition has persuasive value, however to our mind the order binds the tribunal more particularly when the assessee is the same per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been made out. This undoubtedly is not a pure question of law as it also involves adjudication into facts. Therefore, the tribunal ought to have first addressed itself as to whether the application was maintainable or not thereby counting an error by allowing the application by a non-speaking order. Therefore, this is also one more ground which can be taken into consideration to recall the order passed by the tribunal dated 13.09.2017. 15. Having been held so, we examine the arguments of Mr Vinay Kumar Shraff, with regard to the applicability of the principles of noscitur a sociis . In Kartos International it was pointed out that noscitur a sociis means that when two words are capable of being analogously defined then they take colour from each of them. The term ejusdem generis is the facet of noscitur a sociis and the principles means that the general words follow certain specific words who take colour from the specific words. To consider whether this principle of interpretation of statute could be applied to the case on hand we need to take note of the language employed in Section 46 (1) of the Act. 16. Assessment after giving notice to the registered dealer:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n mind this principle, if we examine the provisions, it is seen that the provisions does not stop with the words or for any other reasons but also includes for the purpose of refund of tax . Thus, the Learned Government Pleader is right in his submission to state that the provision is an inclusive provision. That apart the words or for any other reasons has to be held to be very wide and comprehensive not only because of the presence of the words including for the purpose of refund but because of the scheme of the WBVAT. The grounds which have been mentioned in clause (b) of Section 46 (1) of the Act cannot be stated to be categories of species of any generic sense to justify a restricted meaning to the said words. We also have to take note that when a notice is issued under Section 46 (1) (b) the Commissioner should be prima facie satisfied and if the words prima facie satisfied read in conjunction with or for any other reasons to be recorded in writing, including for the purpose of refund of tax, a restricted meaning cannot be given to the said provision. That apart, entitlement to ITC is not a vested right but a statutory right or a concession granted to the dealer with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to have regard to the language of entire group of connected provisions which undoubtedly form an integral whole. To be noted that the allegations in the show cause notice is that excess ITC over ₹ 5,00,000/- has been carried forward to the next financial year. Therefore, what the revenue seeks to do is to initiate assessment proceedings on the allegation that excess ITC has been carried forward and not the ITC which has been carried forward. The allegation is that the assessee has carried forward excess ITC than what he is entitled to. If such being the allegation in the notice then it would be well within jurisdiction of the assessing officer to initiate assessment proceedings under Section 46 of the Act. The notice has been faulted on the ground that satisfaction of the authority has not been recorded. The Hon ble Supreme Court in Assistant Commissioner of Income Tax Vs. Rajesh Jhaveri Stock Brokers Private Limited (2007) 291 ITR 500 (SC), held that at the stage of issuance of a notice the only question to be considered was whether there were relevant materials on which the reasonable person could have formed the requisite believe. Clause (b) of Section 46 (1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely a rule of construction to aid the Courts to find out the true intention of the legislature. 21. In Siddeshwari Cotton Mills Private Ltd. Vs. Union of India (1989) 2 SCC 458 , the Hon ble Supreme Court examined the rationale underlying ejusdem generis as a rule of construction and observed that the principle underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extend to objects of a wholly different kind, as this being a presumption and operates unless there is some contrary indication. 22. A plain reading of Section 46(1) (b) WBVAT would vividly show that the contrary indication is writ large in the statute, the provision being inclusive requires to be of widest amplitude. Hence the principle of ejusdem generis cannot be applied, while interpreting Section 46(1) (b) of the Act. That apart the rule of ejusdem generis cannot contradict legislative intent of the WBVAT but must give way to purposive interpretation of the statute. There is no room, for application of the principle of ejusdem generis in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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