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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 ..... flected on its plain reading, cannot be permitted or that may not be sustainable. The argument advanced by the learned Special Government Pleader in the given factual backdrop would not be sustainable. Therefore, all the Writ Petitions would be liable to be allowed, as either the show-cause notices or the assessment orders in all the writ petitions have been issued beyond the period envisaged under Section 21 of the Act. Petition allowed. - HON BLE SRI JUSTICE P. SAM KOSHY AND HON BLE SRI JUSTICE N. TUKARAMJI For the Petitioners : Mr. S. Dwarakanath, and Mr. Karan Talwar, Learned Counsel. For the Respondents : Mr. Swaroop Oorilla, learned Special Government Pleader for State Tax,. COMMON ORDER (PER THE HON BLE SRI JUSTICE P.SAM KOSHY) Heard the learned Senior Counsel, Mr. S. Dwarakanath, and Mr. Karan Talwar, learned counsel for the petitioners and Mr. Swaroop Oorilla, learned Special Government Pleader for State Tax, for the respondents. 2. The instant batch of writ petitions are filed under the Telangana Tax on Entry of Goods into Local Areas Act, 2001. All these batch of writ petitions are being taken up for consideration on one preliminary objection raised by the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re reproduced herein under: Sl.No. Writ Petition No. Assessment Year Date of Show Cause Notice Date of Assessment Order Date of Appellate Order 1. 24123 of 2018 2013-14 - 31.05.2018 - 2. 24121 of 2018 2012-13 - 31.05.2018 - 3. 24227 of 2018 2012-13 26.07.2017 31.03.2018 - 4. 19069 of 2020 2012-13 - 29.03.2018 30.05.2020 5. 19044 of 2020 2011-12 - 29.03.2018 30.05.2020 6. 16294 of 2020 2013-14 28.10.2017 21.05.2018 27.06.2020 7. 12665 of 2020 2012-13 22.07.2017 23.03.2018 28.05.2020 8. 8616 of 2020 2011-12 22.08.2017 28.02.1018 30.04.2020 9. 8455 of 2020 2012-13 27.10.2017 28.02.2018 30.04.2020 10. 5550 of 2021 2011-12 02.02.2021 - - 11. 5546 of 2021 2012-13 02.02.2021 - - 12. 7562 of 2021 2014-15 - 09.02.2019 - 13. 8404 of 2022 2012-13 05.02.2021 05.01.2022 - 14. 8526 of 2022 2013-14 05.02.2021 05.01.2022 - 15. 26152 of 2023 2016-17 - 13.09.2021 - 16. 26297 of 2023 2017-18 (April 2017 to June 2017) - 19.09.2021 - 8. From the details of the writ petitions provided in the chart above, prima facie, there is no dispute 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond a period of four (04) years as per Section 21 (4) of the TSVAT Act. 12. Per contra, the learned Special Government Pleader appearing for the respondents opposing the writ petitions drew the attention of the Court to Section 21 (7) of the TSVAT Act giving his explanation and justification for having initiated the proceedings under the Telangana State Entry Tax Act beyond a period of four (04) years. 13. One of the preliminary objections raised by the learned Special Government Pleader was that these writ petitions do not deserve to be entertained by the High Court for the reason that in most of the cases or rather in all the cases where an assessment order has been passed, there is a remedy of appeal available to the concerned dealer even in cases where the show cause notices have been challenged. It is the further contention of the learned Special Government Pleader that since they are at the show cause stage, the assessee or the dealers would be at liberty to raise all their submissions, contentions and defense 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular the mention of the words such as using them as input for manufacture of other goods in sub-section (2), the Legislature sought to qualify and provide such exemption only in relation to inputs which are used for manufacture of other goods. The word input has not been defined and the general meaning as understood in common parlance is what is put in . The term input cannot be given a wider meaning that those goods which are actually put in to derive the output. Applying the general meaning of the above said word, read along with the context in which it is used, the said word input is prefixed with the term using them and is further qualified and suffixed with the words for manufacture of other goods . Thus, if all the words providing for exemption are construed in its letter and spirit, it would indicate that such exemption is available only in respect of goods which are put in, the process of manufacture to bring about a change resulting in the new goods coming into existence. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per Section 21 (5) for the purpose of assessment. In this regard, the learned Special Government Pleader submitted that since in the matters of M/s. Jindal Stainless Ltd (supra) as also that of Sree Rayalseema Alkalies Company Limited (supra) were pending before the Hon ble Apex Court, the period of limitation would automatically stand extended. It was also his contention that though there was no litigation qua the petitioners herein before any appellate tribunal or any judicial forums, the question of law being the same was under consideration before the Hon ble Supreme Court in the aforesaid two decisions and the connected batch of petitions which were decided together. This argument of the learned Special Government Pleader may not have sufficient force of law for the simple reason that the judgment of the Hon ble Supreme Court in the aforesaid batch of matters was delivered on 11.11.2016, and the impugned notices issued in most of these cases itself or the assessment orders 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of enlarging the period of limitation which did not expire by the time the deferment order is contemplated to be passed. When once the period of limitation expires, the immunity against being subject to assessment sets in and the right to make assessment gets extinguished. Resort to deferment provisions does not retrieve the situation. There is no question of deferring assessment which had already become time-barred. The provision for exclusion of time in computing the period of limitation of deferment of assessment is meant to prevent further running of time against the Revenue if the limitation had not expired. (emphasis supplied) It was also observed that upon the lapse of the period of limitation prescribed, the right of the Department to assess an assessee gets extinguished and this extension confers a very valuable right on the assessee. 23. 24. The argument of the learned Senior Counsel for the appellants based on Section 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary implication, chosen to confer the power to defer either the assessment proceedings under section 21 of the VAT Act or the appellate proceedings under section 31 of the VAT Act. 27. This question can be examined from another angle also. Ambiguity, if any, in a statutory provision can be removed applying the Heydon's Rule. The Heydon's Rule is that, for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered : (1) what was the common law before the making of the Act/Rules ; (2) what was the mischief and defect for which the common law did not provide ; (3) what remedy the Legislature has resolved to cure ; and (4) the true reason of the remedy. The court is always to make such construction as shall : (a) suppress the mischief and advance the remedy ; and (b) suppress 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (5) thereof. The Legislature has consciously chosen not to confer on the Commissioner the power to defer assessment proceedings under the VAT Act evidently because, unlike the APGST Act, sections 20 (2) and (4) of the VAT Act provide for self-assessment and, except in the circumstances referred to in sub-sections (3) to (5) of section 21, no assessment order need be passed under the VAT Act. The legislative intent is to remedy the mischief which, under section 14 (6) of the APGST Act, enabled the Commissioner to defer assessment proceedings, and thereby ensure that assessment proceedings, under the VAT Act, are not interdicted before its completion, and are completed without hindrance. In the absence of a provision in the VAT Act, similar to section 14 (6) of the APGST Act, none of the authorities under the VAT Act can be said to have been empowered to defer assessment proceedings. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature or the lawmaker, a court should open its interpretation toolkit containing the settled rules of construction and interpretation, to arrive at the true meaning of the provision. While using the tools of interpretation, the court should remember that it is not the author of the statute who is empowered to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter cannot alter or amend the law. It can only interpret the provision, to make it meaningful and workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be. 24. Very recently, a Division Bench of the Gujarat High in the case of Reliance Industries Ltd. and another vs. 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity attaching to the finality of any proceeding, be it a suit or any other proceeding . Denouncing the legality of the practice of claiming refund after number of years based on subsequent decisions it was observed that But according to the present practice, writs and suits are being filed after lapse of a long number of years and the rule of limitation applicable in that behalf is said to be three years from the date of discovery of mistake of law. The incongruity of the situation needs no emphasis. 25. Earlier also the Hon ble Supreme Court in the case of Spentex Industries Limited vs. Commissioner of Central Excise and others (2016) 1 S.C.C. 780, dealing with the interpretation of the word or at paragraph Nos. 28 to 32, held as under, viz., 28. The aforesaid discussion leads us to the only inevitable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and when the Court found that the legislature could not have intended use of the expression or in that Section. We have already explained the statutory scheme contained in the Act and the Rules which express manifest intention of the legislature which provide for granting of both kinds of rebates to the assessee. In Mazagaon Dock Ltd. [AIR 1958 SC 861 : (1959) 1 SCR 848], this aspect was explained in the following manner: (AIR p. 865-66, para 10) 10. The word or in the clause would appear to be rather inappropriate, as it is susceptible of the interpretation that when some profits are made but they are less than the normal profits, tax could only be imposed either on the one or on the other, and that accordingly a tax on the actual profits earned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other batch of writ petitions have been allowed. No costs. 29. Coming to the third writ petition, i.e., Writ Petition No. 7562 of 2021, the Assessment Order is for the year 2014-15, i.e., which is four (04) years from the last date of financial year, i.e., from 31.03.2015 to 30.01.2019, and the impugned show-cause notice was issued on 30.01.2019 and the Assessment Order was passed on 09.02.2019, i.e., just around ten (10) days time from the date of issuance of the show-cause notice. Therefore, though the period of limitation hits the assessment up till January, 2015, but the period February and March, 2015, the period comes within the four years of limitation prescribed. Thus, the Assessment Order would be sustainable on the aspect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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