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TMI Blog2024 (6) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... y objection raised by the petitioners and for which some of the writ petitions were entertained at the show cause notice level, some at the level of assessment orders, and some against the appellate orders. 3. The point for consideration by way of the preliminary objection raised by the petitioners are whether the show cause notice or the assessment orders passed in all these bunch of writ petitions are sustainable at all in view of the specific period of limitation prescribed under Section 21 (3) and Section 21 (4) of the Telangana Value Added Tax Act, 2005 (for short, 'TSVAT Act'). 4. Before we delve into the issue of limitation, it would be relevant at the outset itself to reproduce the two sub-sections under which the petitioners are backing upon their case. The said two sub-sections of TSVAT Act read as under: "(3) Where the authority prescribed is not satisfied with a return filed by the VAT dealer or TOT dealer or the return appears to be incorrect or incomplete, he shall assess to the best of his judgment within four years of due date of the return or within four years of the date of filing of the return whichever is later. (4) The authority prescribed may, based on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as the show cause notices which are under challenge in few writ petitions and the assessment orders in other writ petitions have all been passed beyond a period of four (04) years as is stipulated under Section 21 (3) and 21 (4) of the Act. Section 6 of the Telangana State Entry Tax Act, 2001, clearly envisages that for the purpose of assessment, inspection, seizure, enforcement of payment of any tax, so also payment of interest or penalty by the dealers, the provisions of law to be applied by the authority concerned is that which is provided in the Telangana State General Sales Tax Act, 2005. The Telangana State General Sales Tax Act subsequently has been abolished and the TSVAT Act has been introduced and therefore it is the provisions of the TSVAT Act which stands imported for Entry Tax assessment also and it is in this context that Section 21 of the TSVAT Act is being invoked. 9. Another fact which is apparent from the details provided in respect of different writ petitions mentioned in the preceding paragraphs, except for Writ Petition No. 26152 of 2023, Writ Petition No. 26297 of 2023 and Writ Petition No. 7562 of 2021, is that in the said three writ petitions there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efense through their counter and thereafter it should be left for the Adjudicating Authority or the Appellate Authority or the Assessment Officer, as the case may be, to take an appropriate decision. 14. According to the learned Special Government Pleader the authority concerned had initiated the proceedings in all these cases in the teeth of the judgment of the Hon'ble Supreme Court in the case of M/s. Jindal Stainless Ltd & Anr vs. State of Haryana (2017) 12 SCC 1 wherein in a batch of petitions, one among them also being that of State of A.P. vs. M/s. Sree Rayalseema Alkalies Company Limited. The Hon'ble Supreme Court held that levy of tax by the State under the Act is upon entry of notified goods and the same cannot be equated with levy of tax on sale of goods levied by the State under Entry 54 List II of the VII Schedule of the Constitution of India. It was also held by the Hon'ble Supreme Court that in addition the levy of Entry Tax by the State does not impede the free flow of interstate trade as guaranteed under Articles 301 and 304 of the Constitution of India. Therefore, it was contended by the learned Special Government Pleader that the aspect of limitation in the given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. According to the learned Special Government Pleader the term 'input' used in sub-section (2) of Section 3 would indicate indirect nexus of the modified goods to the resultant new product emerging out of manufacturing process and in order to be eligible for such an exemption under Section 3 (2) of the Entry Tax Act, there has to be a direct nexus between the input so used and the resultant output. All the other goods which may aid the process of manufacture cannot be considered as inputs since the legislature sought to provide for exemption only in respect of a class of goods which go into manufacture of other goods as 'inputs'. 19. Having heard the contentions put forth on either side and on perusal of records, it would be relevant at this juncture to take note of Section 21 (7) of the TSVAT Act also, which has been strongly relied upon by the learned Special Government Pleader in defending the action of the respondents in respect of issuance of show cause notice or the order of assessment and also in matters where the appellate jurisdiction has also been exercised. The relevant portion of Section 21 (7) of the TSVAT Act, for ready reference, is reproduced herein under: "W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders passed was much beyond the period of four years from the date of the judgment and the Hon'ble Supreme Court in the aforesaid batch of matters dealing with the validity of the provisions of the Entry Tax. This argument also would not be sustainable for the reason that there are petitioners in whose cases the respondent-Authorities have not waited till the judgment of the Hon'ble Supreme Court to commence the proceedings so as to take a uniform stand so far as the limitation is concerned; and in a few cases, the notices were issued much before the decision of the Hon'ble Supreme Court though the adjudication part has been done subsequently, but notices were definitely been issued earlier which is sufficient to show that pendency of the matter before the Hon'ble Supreme Court was not a criteria at all. 21. The Hon'ble Supreme Court in the case of State of Punjab and others vs. Shreyans Indus Ltd. (2016) 4 S.C.C. 769 held at paragraph Nos. 21, 22 and 24 as under, viz., "21. Clause (b) of sub-section (6) indicates that Joint Commissioner, in appropriate cases, may pass an order for deferment of assessment order to be passed by the assessing authority and once such an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 148 CPC would be of no consequence. This section categorically states that power to enlarge the period can be exercised even when period originally fixed has expired. Likewise, reliance upon Section 139(2) of the Income Tax Act is misconceived. That provision is made for the benefit of the assessee which empowers the assessing officer to grant an extension of time for filing of the return of income and, therefore, obviously will have no bearing on the issue at hand. Moreover, this Court in Ajanta Electricals case [CIT v. Ajanta Electricals, (1995) 4 SCC 182], which is relied upon by the learned counsel for the appellant, held that the time can be extended even after the time allowed originally has expired on the interpretation of the words "it has not been possible" occurring in Section 133(2) of the Act. The Court, thus, opined that the aforesaid expression would mean that the time can be extended even after original time prescribed in the said provision has expired. Same is our answer to the argument of Mr Ganguli predicated on Section 28 of the Arbitration Act, 1940 as that provision was in altogether different context." 22. Similarly, in the case of KMK Event Management Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit) ; and (c) add force and life to the cure and remedy according to the true intent of the makers of the Act/Rules pro publico (for the public good). The Heydon's Rule is applied in order to suppress the mischief which was intended to be remedied as against the literal rule which could have otherwise covered the field. (Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76, Goodyear India Ltd. v. State of Haryana [1997] 105 STC 465 (P&H) ; (1997) 116 PLR 252, Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. (2004) 1 SCC 702, Halsbury's Laws of England, Volume 44(1), 4th Reissue, para 1474, pages 906-07, Bengal Immunity Company Limited v. State of Bihar [1955] 6 STC 446 (SC) ; (1955) 2 SCR 603 ; AIR 1955 SC 661 ; In re Mayfair Property Company (1898) 2 Ch 28, Eastman Photographic Materials Company Limited v. Comptroller-General of Patents, Designs and Trade Marks [1898] AC 571 (HL), National Insurance Co. Ltd. v. Baljit Kaur (2004) 118 C-C 435 (SC) ; (2004) 2 SCC 1). 29. Section 14 (6) of the APGST Act provided that it shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. Dealing with the words "or" as well as "and", recently the Hon'ble Supreme Court in the case of Commissioner, Customs Central Excise and Service Tax, Patna vs. Shapoorji and Pallonji & Company Pvt. Ltd. (2023) S.C.C. Online SC 1330 held at paragraph Nos. 22 and 23 as under, viz., "22. Having noticed some of the precedents in the field of interpretation of statutes, we now move on to a little bit of English grammar. The word "or" as well as the word "and" is a conjunction; and it is well known that a conjunction is used to join words, phrases, or clauses. On how the conjunctions "or" and "and" are to be read, guidance could be drawn from authoritative texts and judicial decisions. As per Justice G.P. Singh's Principles of Statutory Interpretation, the word "or" is normally disjunctive while the word "and" is normally conjunctive. In English law, the position is clear as crystal, as explained by Lord Scrutton in Green v. Premier Glynrhonwy Slate Co. Ltd. [Green v. Premier Glynrhonwy Slate Co. Ltd., (1928) 1 KB 561 at p. 569 (CA)], that one does not read "or" as "and" in a statute unless one is obliged, because "or" does not generally mean "and" and "and" does not generally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. State of Gujarat and others (2020) 82 G.S.T.R. 32 (Guj), held at paragraph Nos. 168, 170 & 171 as under, viz., "168. The illustration given by Mr. Soparkar for the purpose of demonstrating that the impugned amendment is arbitrary and unreasonable is quite apt. ... ... ... 170. Then we are taking about unreasonableness in the impugned provision, we should look into the English decision in the case of Kruse v. Johnson [1895-90] All ER 105. It has been observed as under : "Unreasonableness in what sense ! If for instance they were found to be partial and unequal in their operation between different classes, if they were manifestly unjust, if they disclosed bad faith, if they involved such oppressive or gratuitous interference with rights of those subject to them as could find no justification in the minds of the reasonable men, the court might well say Parliament never intended to give authority to make such rules and that they are unreasonable and ultra vires.' 24. In Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi AIR 1968 SC 1232, a Constitution Bench of the apex court had occasion to examine the issue. The court approved the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consequence which is this: the word "OR" occurring in Rule 18 cannot be given literal interpretation as that leads to various disastrous results pointed out in the preceding discussion and, therefore, this word has to be read as "and" as that is what was intended by the rule-maker in the scheme of things and to carry out the objectives of Rule 18 and also to bring it on a par with Rule 19. 29. We are conscious of the principle that the word "or" is normally disjunctive and "and" is normally conjunctive (see Union of India v. Kamalabai Harjivandas Parekh [AIR 1968 SC 377 : (1968) 1 SCR 463] ). However, there may be circumstances where these words are to be read as vice versa to give effect to manifest intention of the legislature as disclosed from the context. 30. Of course, these two words normally "or" and "and" are to be given their literal meaning in unless some other part of the same statute or the clear intention of it requires that to be done. However, wherever use of such a word viz. "and"/"or" produces unintelligible or absurd results, the Court has the power to read the word "or" as "and" and vice versa to give effect to the intention of the legislature which is othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would bar the imposition of tax on profits which might have been received. Obviously, that could not have been intended, and the word 'or' would have to be read in the context as meaning 'and'. Vide Maxwell's Interpretation of Statutes, 10th Edn., pp. 238-39. But that, however, does not affect the present question which is whether the word 'derived' indubitably points to the business of the non-resident as the one taxable under Section 42 (2), and for the reasons already given, the answer must be in the negative." 26. The two decisions referred to by the learned Special Government Pleader for the respondents in the case of Competition Commission of India vs. Steel Authority of India Limited and another (2010) 10 S.C.C. 744 and Union of India vs. Ind-Swift Laboratories Limited (2011) 4 S.C.C. 635, dealing with the interpretation of the word "or", the Hon'ble Supreme Court has categorically held in both these decisions that the provision of a taxing statute must be interpreted in the light of what is clearly expressed. It further held that it would not be permissible to import provisions in a taxing statute so as to supply any assumed deficiency. The Hon'ble Supreme Court found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation only for the period February and March, 2015. However, the learned Senior Counsel appearing on behalf of the petitioners drew the attention of the Court to the hasty manner in which the proceedings were concluded, i.e., the show-cause notice issued on 30.01.2019 and also the final Assessment Order passed on 09.02.2019, i.e., just around ten (10) days. He further made a categorical statement that even the show-cause notice which was issued by the respondent-Authorities was not effectively served and no opportunity of personal hearing was provided to the petitioners. He, therefore, contended that for the reason that the limitation had expired, the respondents, by-passing the statutory proceedings prescribed for an effective hearing, abruptly issued the impugned notice and concluded the proceedings in ten (10) days' time. Thus, we do not find any hesitation in reaching to the conclusion that the impugned Assessment Order dated 09.02.2019 even though is within limitation for a period of two (02) months, i.e., February and March, 2015, but for the reason that there is a clear violation of principles of natural justice and also violation of the statutory provisions prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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