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TMI Blog2024 (3) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... pectively or by describing the periods as ninety days and thirty days respectively. It did not do so. Therefore, the legislature did not intend that the period of three months used in sub-section (3) to be equated to 90 days, nor intended that the period of thirty days to be taken as one month - The Hon ble Apex Court clearly held that a month does not refer to a period of thirty days, but refers to the actual period of a calendar month. The present case pertains to the period prior to the amendment in Rule 12 by which a specific date i.e., on or before 10th day of the month succeeding the month for which the return has to be filed, has been specified. The further submission of the learned counsel for the petitioner based on the amendment in the year 2011 is that it the amendment , fortifies that there was no date prescribed prior to the amendment and consequently, the same has been specified by way of amendment and consequently, there would be no liability for payment of interest. The said submission also deserves rejection. Even if there was no specified date, as has now been incorporated in Rule 12, it cannot be said that there was no date prescribed for filing return or/and pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Act, and it was also the statutory duty of the petitioner under Section 5 of the Act to deduct the profession tax from the salaries and wages of the employees and remit the same to the State. As the same was not done, the order dated 28.07.2005 was passed. 4. Additionally, i.e, apart from levying tax, interest of Rs. 4,14,062/- was also levied upon the petitioner for delayed payment of tax along with the monthly return. 5. The petitioner filed revision under Section 16 of the Act before the 1st respondent the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad. The revision was allowed by the Order dated 28.01.2006. The matter was remanded to the Assessing Authority to re-do the assessment and levy interest, if any, in accordance with law. The Commissioner of Commercial Taxes in its order held that the Assessing Authority should have passed separate assessment orders for each year. The common assessment order for 9 financial years could not be passed. With respect to levy of interest, the contention of the petitioner before the revisional authority was that there was no liability to make the payment of interest as there was no delay in payment of tax. The contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n prescribed for filing return and payment of profession tax under the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987? ii) Whether the revisional authority the 1st respondent is right in holding that there would be liability for payment of interest as the petitioner did not pay the profession tax within prescribed time? 11. We have considered the submissions advanced by the learned counsels for the parties and perused the material on record. 12. Both the points being interlinked are being considered together. 13. The Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 was enacted for levy and collection of a tax on professions, trades, callings and employments. 14. Section 4 of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 reads as under: Section 4: (1) There shall be levied and collected a tax on professions, trades, callings and employments for the benefit of the State. (2) Every person engaged in any profession, trade, calling or employment in the State and falling under any one or other of the classes specified in column (2) of the First Schedule, shall be liable to pay a tax at the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alary or wage is paid to him, and such employer shall, irrespective of whether such deduction has been made or not, when the salary or wage is paid to such person, be liable to pay tax on behalf of all such persons. 18. Section 7 of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 reads as under: Section 7: Returns - (1) Every assessee registered under this Act, shall submit to the assessing authority a return in such form, for such period or periods and by such dates as may be prescribed showing therein the salaries and wages paid by him and the amount of tax deducted by him in respect thereof. (2) Every such return shall be accompanied by a treasury challan in proof of payment of full amount of tax due according to the return and return without such proof of payment shall not be deemed to have been duly submitted. (3) Where an assessee has without reasonable cause failed to submit such return within the specified period, the assessing authority may, after giving him a reasonable opportunity of making representation impose upon him a penalty which shall not be less than rupees five but which shall not exceed rupees one hundred for each day of delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1). 22. Assessee has been defined under Section 2(b) of the Act 1987, which means unless the context otherwise requires, a person or employer by whom tax is payable under the Act i.e., the Act 1987. 23. As per Section 12 of the Act, the penalty shall be in addition to the interest payable under sub-section (1) or sub-section (2) of Section 11. 24. Section 2 definition clause, defines under clause (k) prescribed , which means unless the context otherwise requires, prescribed by rules made by the Government under the Act. 25. The Andhra Pradesh Tax on Professions, Trades, Callings and Employments Rules, 1987 (in short the Rules 1987 ) have been framed under Section 30 of the Act 1987. 26. Rule 12 of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Rules, 1987 reads as under: Rule 12: Returns and Assessment: (i) The return under Sub-section (1) of Section 7 shall be furnished in Form V. (ii) Before an order of assessment is made under sub-section (1) or under sub-section (3) of Section 8 the assessee shall be afforded a reasonable opportunity of showing cause against such assessment and for this purpose he shall be served with a notice in Form-XI. 27. Rule 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hundred rupees or part thereof for every month or part thereof from the delay/date specified for its payment. 33. Rule 24 therefore provides for interest on tax, on failure to deduct or to pay the tax. As per this rule, if the assessee does not deduct the tax at the time of payment of salary or wages or after deducting, fails to pay tax or if an enrolled person fails to pay the tax as required by or under the Act, he shall pay in addition to the amount of such tax, interest. 34. The return is to be filed in Form-V. Form-V is as under: FORM V Returns of Tax Payable by Employer under sub-section (1) of Section 7 of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 (See Rule 12) Return of tax payable for the month ending on : Name of the employer : Address : Registration Certificate No. : Number of employees during the month in respect of whom the tax is payable is as under : Employees whose monthly salaries or wages or both are Number of employee Rate of Tax per month Amount of tax deduction (i) Upto 5,000/- (ii) from 5,001 to 6,000 (iii) from 6,001 to 10,000 (iv) From 10,001 to 15,000 (v) From 15,001 to 20,000 (vi) Above 20,000 TOTAL RS. Add Simple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made at that time, the assessee is liable to make payment of profession tax as per Section 5 of the Act. The liability to deduct and pay the tax is clear to be on monthly basis. 37. Section 7 (2) of the Act 1987 clearly provides that every such return shall be accompanied by a treasury challan in proof of payment of full amount of tax due according to the return and return without such proof of payment shall not be deemed to have been duly submitted. Section 11 of the Act 1987 also provides that if an assessee does not deduct the tax at the time of payment of salary or wages or after deducting, fails to pay the tax, he shall be deemed to be an assessee in dfault in respect of the tax, and he is liable to pay interest as well. These provisions make it amply clear that the return has to be filed monthly and along with the return the copy of the treasury challan in proof of such payment of tax is to be submitted along with the return, which clearly indicates that payment of profession tax is also to be a monthly payment. So is the provision under rule 13 of the Rules. It is also so evident from Rule 15 of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Rules, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stions which arose was that whether the period of three months can be counted as 90 days while answering, the Hon ble Apex Court held that, considering Section 34 (3) of the Arbitration and Conciliation Act 1996 and also the definition of month as defined in Section 3 (35) of the General Clauses Act, 1897 that the legislature had the choice of describing the periods of time in the same units, that is, to describe the periods as three months and one month respectively or by describing the periods as ninety days and thirty days respectively. It did not do so. Therefore, the legislature did not intend that the period of three months used in sub-section (3) to be equated to 90 days, nor intended that the period of thirty days to be taken as one month. The Hon ble Apex Court further held that therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days. The Hon ble Apex Court clearly held that a month does not refer to a period of thirty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days. 43. The submission of the learned counsel for the petitioner is that any specified date or period has not been prescribed for payment of the profession tax. The said submission deserves rejection. The month has been defined as a calendar month . In other words an English Calendar Month. Considering the definition of month in the Act 1987, in General Clauses Act and the judgment in Himachal Techno Engineers (supra), we are of the considered view that the assessee has the time to make payment of the tax as also the return for the previous month by the succeeding month i.e., up to the last date of the succeeding month in the absence of any date specified under the Act and the Rules prior to the amendment made in the year 2011 depending upon the actual period of such succeeding calendar month. 44. The present case pertains to the period prior to the amendment in Rule 12 by which a specific date i.e., on or before 10th day of the month succeeding the month for which the return has to be filed, has been specified. 45. The further submission of the learned counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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