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TMI Blog2024 (5) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... shall deposit the amount of tax due and to furnish monthly returns of sales in the prescribed forms within the specified period. Rule 15(d) states that on receipt of the return, the PTO may examine the account books and other records of the dealer and such other enquiries, as he may consider necessary for the purpose of satisfaction that the return is correct and complete and the amount of tax and any other sum payable under the act has been paid, if the officer is satisfied in respect of the correctness and return and the dealer having paid the amount of tax on any other sum payable under the Act, he shall issue a certificate in form P-7. The conjoint reading of Section 5 and Rule 15 of the Act of 2005 clearly specifies that section 5 will be made applicable only if the return filed by an assessee before the PTO is held not to be complete and correct. PTO can exercise his powers under section 5, read with rule 15-D. Section 5 will not be invoked in cases where complete and correct return is filed and P-7 is issued pursuant to Rule 15. This question has been answered in affirmation. Whether the act and the rules do not contain any specific provision for taking action by the Petrol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST, vide order dated 02 07 2004, by the Member, Jammu and Kashmir Sales Tax Appellate Tribunal, (District and Session Judge), hereinafter for short as Tribunal. PREFACE : 02. By order dated 02.07.2004, reference has been made to this court which shall, hereinafter, be referred as the reference order. The questions of law arising out of the order dated 10.03.2004 passed by Tribunal have been referred to this court are as under: 1. Whether on the facts and circumstances of the case, the Tribunal is right in Law in holding that provisions of Section 5 of the Act can only be invoked by the Petrol Taxation Officer when he is not satisfied with the correctness and completeness of the return filed by a dealer pursuant to Rule-15? 2. Whether on the facts and circumstances of the case the Tribunal is right in law in holding that the Act and the Rules do not contain any specific provision for taking action by the Petrol Taxation Officer in the cases of escaped assessments? 3. Whether on the facts and circumstances of the case the Tribunal is right in Law in holding that the Act and the Rules provide only for filing of monthly returns and therefore assessments are only required to be made mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision for taking action in cases of escaped assessments as enumerated in the JK General Sales Tax Act under section 7 (11) of said Act. The Tribunal held that provision of section 5 of the Act cannot be invoked for covering cases of escaped assessments. 07. It is also opined by the Tribunal that since Rule 15 and 16 only referred to filing of monthly returns and Sub Rule (d) of Rule 15 and Sub Rule (a) of Rule 16 provides for assessment to be made upon receipt or non-receipt of monthly returns, therefore only monthly assessments are provided /prescribed under the Act/Rules. Submissions made by learned Advocate General on behalf of Commissioner Tax, Jammu. 08. Mr D.C. Raina, Learned Advocate General, has stated that the GST and the Act of 2005 though are two independent Acts yet are integral to each other. The reassessment cannot be reopened under Section 5 of the Act of 2005, but the conjoint reading of Section 7 (11) of GST and Section 5 of Act of 2005, PTO to take action in cases of escaped assessments. Learned Advocate General further submits that PTO after assessment in terms of Section 5 of Act of 2005 doesn t become functus officio and is not denuded of his powers for reasses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers; A. V. Fernandez v. The State of Kerala; Shabina Abraham others v. Collector of Central Excise Customs; Additional Commissioner of Income Tax, Delhi-II v. R. D. Ram Nath Co.; and, S. C. Prashar v. Vasantsen Dwarkadas reported as (1966) 60 ITR 428 (SC); (1966) 60 ITR 392 (SC); (1957) AIR 657 (SC); MANU/SC/0801/2015; (1983) 141 ITR 897 (Delhi), and (1956) 29 ITR 857 (BOM) respectively. Legal analysis: The Jammu and Kashmir General Sales Tax Act, 1962 Preamble An Act to provide for the levy of a general tax on the sale [or purchase] of goods in the sate and for other matters connected therewith. Section 2[(g) Dealer means any person who carries on (whether regularly or otherwise) the [business of selling, purchasing], supplying or distributing goods, directly or indirectly, for cash or for deferred 1 inserted by Act XIII of 1978 2 sub-clause (iv) added by Act No. XXV of 1972 3 substituted by Act XIII of 1978 4 substituted by Act XX of 1981. 3 payment, or for Commission, remuneration, or other valuable consideration and includes, - (i) a factor, broker, commission agent, delcredere agent, or any other mercantile agent, by whatever name called and whether of the same description as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to tax in whole or in part, as the case may be, on such turnover. (12) Before making the assessment or re-assessment under sub-section (11), the Assessing Authority shall serve on the dealer a notice in the prescribed form [containing grounds for such proceeding]. (13) No notice under sub-section (12) shall be issued if eight years have elapsed from the end of that year to which it relates. [(14) (a) No order of assessment under sub-sections (6), (8), (9) and (10) of this section shall be made after the expiry of four years from the end of the 3 (year) or after expiry of one year from the end of the year in which the return or revised return under sub-section (1), (3) or (4) of this section is filed, whichever is later; (b) no order of assessment or re-assessment under sub-section (11) of this section shall be made after the expiry of eight years from the end of the year or one year from the end of the year in which the notice is served, whichever is later; (15) Notwithstanding anything contained in sub-section (14) of this section an order of fresh assessment in pursuance of an order under section 11, 11-A or 12, or an order of Court may be made before the expiry of 2 years fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said authority unless it is satisfied that :- a) where all the returns for a year have been filed, the amount of tax due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns filed by him or at any stage in any proceedings under this Act, whichever is higher, has been paid; or b) where some of the returns for a year have not been filed or no return has been filed for such year, the amount of tax due under this Act, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act or 20% of the amount of tax assessed, whichever is higher, has been paid; or c) in case the appeal is against the imposition of penalty, 5% of the penalty levied has been paid;] [Provided that the Appellate Authority may, for reasons to be recorded in writing, stay the recovery of the [demand disputed in appeal]. However, the stay will not cover the amount of tax and penalty payable under clauses (a), (b) and (c) of the second proviso.] (2) The appellate authority 6 [or the Commissioner, as the case may be], may after giving the appellant reasonable opportunity of being heard: (a) Confirm, reduce, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate, Reviewing Authorities or the Tribunals. [12-D Statement of case to the High Court (1) Within sixty days from the date of communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture of any sum or which effects the recovery from any person of any amount under section 12-A that person or the Commissioner, Sales Tax having jurisdiction over the whole of the State may by application in writing (accompanied where the application is made by that person by a fee of five hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, it shall as soon as may be not later than ninety days from the receipt of such application draw up a statement of the case and refer it to the High Court : Provided that the Tribunal may, if it is satisfied that the dealer or the Commissioner was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days: Provided further that, if in exercise of its pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Petrol Taxation Officer ; but once the order has been made final a certificate given under the hand of the Petrol Taxation Officer, shall, subject to the provisions of this Act with regard to appeal, review and revision, be final and conclusive proof both as to the amount of the tax or penalty which is due and as to the person from whom it is due. RULE 15: a) A dealer shall furnish a return of sale of goods in form P-4 for every month to the Petrol Taxation Officer on or before 21st day of next following month. b) The tax payable on the sales made in a month shall be paid in the Treasury against the challan in Form P-5 within fifteen days from the expiry of the said month. 4th foil of the receipted challan or any other proof for having made the payment shall be attached to the monthly return. c) The dealer may deposit the tax by a crossed cheque/ crossed bank draft alongwith a challan in Form P-5 duly filed in and signed by him in the office of Chief Petrol Taxation Officer who shall issue provisional receipt in Form P-6. The cheque/ bank draft shall soon thereafter be deposited in the Treasury. The 3rd and 4th foils of the receipted challan obtained from the Treasury shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court of India in case titled Mathura Agarwal v. State of Madhya Pradesh AIR 2000 SC, 109, held as under: The intention of the Legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not flow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax 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. 12. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s view of what it considers the substance of the transaction, the Court thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case. As Lord Cairns said many years ago in Partington v. The Attorney General (1):- As I understand the principle of all fiscal legislation it is this: if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be. 28. The passage was quoted with approval by the Privy Council in the Bank of Chettinad v. Income Tax Commissioner (1) and the Privy Council registered its protest against the suggestion that in revenue cases the substance of the matter may be regarded as distinguished from the strict legal position. ( See also F. L. Smidth Co. v. F. Greenwood [VIII T.C. 193, 206]). 29. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return is correct and complete and the amount of tax and any other sum payable under the act has been paid, if the officer is satisfied in respect of the correctness and return and the dealer having paid the amount of tax on any other sum payable under the Act, he shall issue a certificate in form P-7. The conjoint reading of Section 5 and Rule 15 of the Act of 2005 clearly specifies that section 5 will be made applicable only if the return filed by an assessee before the PTO is held not to be complete and correct. PTO can exercise his powers under section 5, read with rule 15-D. Section 5 will not be invoked in cases where complete and correct return is filed and P-7 is issued pursuant to Rule 15. This question has been answered in affirmation. 2. Whether on facts and circumstances of the case, the tribunal is right in law in holding that the act and the rules do not contain any specific provision for taking action by the Petrol Taxation Officer in the cases of escaped assessments? 17. Admittedly, there is no specific provision for taking action by PTO in cases of Escaped assessments, whereas under section 7 (11) of the GST, there is a clear provision for reassessment, if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court. Another rule of construction which is relevant to the present enquiry is expressed in the maxim, generalia specialibus non derogant, which means that when there is a conflict between a general and a special provision, the latter shall prevail. The said principle has been stated in Cries on Statute Law, 5th Edn., at P. 205, thus : The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. 13. But this rule of construction is not of universal application. It is subject to the condition that there is nothing in the general provision, expressed or implied, indicating an intention to the contrary. When the words of a section are clear, but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in Heydon's case (1584) 3 Rep. 7, yield better results : To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and obje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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