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TMI Blog1997 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996. Dipankar Ghosh, Shankar Ghosh and Dushyant Dave, Senior Advocates (A. Sen Gupta and Mukherjee, Advocates with them), for the appellants in C.A. Nos. 1902 of 1990, 15513 of 1996, 15514 of 1996, 2905 of 1992, 1905 to 1908 of 1990 and 4989 of 1991. Dushyant Dave, Senior Advocate (Prashant Kumar and A.K. Banerjee, Advocates, for Mrs. V.D. Khanna, Advocate, with him), for the appellants in C.A. Nos. 15367 of 1996 and 15593 to 15595 of 1996. Raj Kumar Gupta, H.V.P. Sharma and Rajesh, Advocates, for the appellants in C.A. Nos. 4196 of 1995, 879 of 1992 and 11188 of 1995. G.S. Chatterjee and Ms. Aruna, Advocates, for the appellant in C.A. No. 1904 of 1990. Ashok Grover, Senior Advocate (Sashi Bhushan and Pramod Dayal, Advocates, with him), for the appellants in C.A. Nos. 15584 to 15591 of 1996. Dushyant Dave, Shankar Ghosh and M.N. Krishna Mani, Senior Advocates (A. Sen Gupta and Mrs. V.D. Khanna, Advocates, with them), for the appellents in C.A. No. 12638 of 1996. M.N. Krishna Mani, Senior Advocate (G.S. Chatterjee, A. Sen Gupta and Rajesh, Advocates, with him), for the appellants in C.A. Nos. 15584 to 15591 of 1996. [Judgment per : Thomas, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A of the Act reads thus : "10A. Interest payable by dealer. - Where a(1) registered or certified dealer furnishes a return referred to in Section 10 in respect of any period by the prescribed date or thereafter, but fails to make full payment of tax payable in respect of such period by such prescribed date, he shall pay a simple interest at the rate of two per centum for each English calendar month of default from the first day of such month next following the prescribed date up to the month preceding the month of full payment of such tax or up to the month prior to the month of assessment under Section 11 in respect of such period, whichever is earlier, upon so much of the amount of tax payable by him according to such return remains unpaid at the end of each such month of default. Provided that where such dealer admits in writing that the amount of tax payable in respect of such period is an amount which is either more or less than, what has been originally shown as payable in the return and where the Commissioner is satisfied on the point of such admission, the interest shall be payable upon so much of the amount of tax payable according to such admission as remains unpaid at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel, since appellants have furnished returns and paid the tax, as per such returns, there is no liability to pay interest on the turnover tax because sub-section (1) contemplates a situation where there was failure to pay tax in accordance with the returns furnished and sub-section (2) contemplates a situation where no return has been furnished at all. 6.The requirement in sub-section (1) is "to make full payment of the tax payable" after furnishing a return referred to in Section 10 of the Act within the prescribed date. Two obligations are thus implied therein as for a dealer. First is that he should have furnished a return within the prescribed date in accordance with the terms referred to in Section 10. Second is that he should make full payment of the tax payable under law. Sub-section (1) operates in the case of a dealer who had performed the first obligation but failed to perform the second obligation. On the other hand sub-section (2) would operate in a case where the dealer failed to discharge the first obligation mentioned above. 7.So the initial aspect to be considered is whether the first obligation has been discharged by the appellants. If a dealer has furnished only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." The above observation has been quoted with approval by a Bench of three Judges of this Court in Commissioner of Income Tax, Madras v. Ajax Products Ltd. [55 STC 741]. In another decision rendered by a Bench of three Judges of this Court in The State of Tamil Nadu v. M.K. Kandaswami and others [36 STC 191] it has been observed thus : "In interpreting such a provision, a construction which would defeat its purpose and, in effect, obliterate it from the statute book should be eschewed. If more than one construction is possible, that which preserves its workability and efficacy is to be preferred to the one which would render it otiose or sterile." 11.We are, therefore, not adopting a construction which would upset or even impair the purpose in introducing Section 10A in the Act. The return to be filed by the dealer is the full and correct return as referred to in Section 10 and on failure to furnish such a return the liability to pay interest from the prescribed date would arise when assessment is completed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ', that must be understood in the context of the aforesaid expressions employed in the two sub-sections. Therefore, the expression `tax payable' under the said two sub-sections is the full amount of tax due and `tax due' is that amount which becomes due and ex hypothesis on the turnover and taxable turnover `shown in or based on the return'. The word "payable" is a descriptive word, which ordinarily means `that which must be paid or is due, or may be paid' but its correct meaning can only be determined if the context in which it is used is kept in view. The word has been frequently understood to mean that which may, can or should be paid and is held equivalent to `due'. Therefore, the conjoint reading of Sections 7(1), (2) and (2A) and 11B of the Act leaves no room for doubt that the expression `tax payable' in Section 11B can only mean the full amount of tax which becomes due under sub-sections (2) and (2A) of the Act when assessed on the basis of the information regarding turnover and taxable turnover furnished or shown in the return. Therefore, so long as the assessee pays the tax which according to him is due on the basis of information supplied on the return filed by him, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to utilize it for public purposes. When appellants had the advantage of keeping the amount of tax without paying it to the State exchequer only because the High Court granted orders restraining the State from recovering that amount from the assessee, no act of the Court shall cause prejudice to any party. The prestine doctrine couched in the maxim "actus curiae neminem gravabit" has ever remained a salutary and guiding principle. 17.The contention that as the Courts granted injunction restraining the State from recovering the tax amount as per Section 6B would raise a presumption that the Court was then satisfied of the bona fides of the contention is too fragile for depriving the state of statutory right of interest incorporated in Section 10A of the Act. Interim orders are passed by the High Court on a variety of considerations, one among being the strained financial position of the person approaching the Court. Merely because the Court granted interim orders it cannot be inferred that Court was then satisfied of a strong prima facie case for the appellants. On the contrary, it is well neigh settled that there is always a presumption in favour of constitutionality of a legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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