Chhaganmal Golchha and anr Vs State of Assam and ors - Citation 134291 - Court Judgment

Judgment:

T. Nandakumar Singh, J.

1. By this writ petition, the petitioner is assailing the assessment order dated 6.1.93 for payment of tax on the sale proceeds of Mustard Oil for the period ending 30.9.92, the assessment order dated 27.12.96 for payment of tax on the sale proceeds of the mustard oil for the period ending 31.3.93 and also the assessment order dated 27.12.96 for payment of tax on the sale proceeds of the mustard oil for the period ending 30.6.93, and order of the appellate authority i.e., Deputy Commissioner of Taxes, Silchar Zone, Silchar-respondent No. 3 dated 15.6.98 rejecting the appeal filed against the said assessment order dated 6.1.93, 27.12.96, 27.12.96 and also the order of the Additional Commissioner of Taxes, Assam, Kar Bhawan, Dispur-respondent No. 4 dated 5.10.98 confirming the order of the Deputy Commissioner of Taxes (appellate authority) dated 15.6.98 and thereby rejecting the revision petition filed by the petitioner.

2. Heard Mr. G.K. Joshi, learned Senior counsel assisted by Mr. R.K. Joshi for the petitioner and Mr. R. Dubey and Mr. K. Kashyap, learned Counsel for the respondents.

3. The concise facts which would be sufficient for effective decision of the present writ petition are that the Petitioner No. 1 'Ms. Chhaganmal Golchha, Janiganj Bazar, Silchar' is a partnership firm having its place of business at Janiganj Bazar, Silchar within the State of Assam. The petitioner-firm deals with the business of purchase and sale of mustard oil and refine oil.

4. The petitioner-firm is a registered dealer under Assam Finance (Sales Tax) Act, 1956. After the Assam Finance (Sales Tax) Act, 1956, had been repealed the petitioner-firm obtained its registration as a dealer unit under Assam General Sales Tax Act, 1993. The sale of mustard oil within the State of Assam was exempted from the tax upto 29.7.92 Under Section. 7(1) of the Assam Sales Tax Act 1947 vide item No. 21 of Schedule-Ill of the said Act. As such before 29.7.92 the sale of mustard oil within the State of Assam was exempted from tax but exemption from tax on the sales proceed of mustard oil was withdrawn w.e.f. 30.7.92 by the Assam Taxation Law (Amendment Act, 1992) which was published in Assam Gazette Extra-ordinary dated 30.7.92 and by Section 4(iii) of the Amendment Act, a new item No. 76 was inserted in the schedule to Assam Finance (Sales Tax) Act, 1956. As such from30.7.92 tax was imposed on the sale proceeds of the mustard oil in the State of Assam by inserting a new item No. 76 in schedule to the Assam Finance (Sales Tax) Act, 1956. The imposition of tax on the sale proceeds of the mustard oil was continued till Assam Taxation Laws (Amendment) Ordinance, 1993 (Assam Ordinance No. III of 1993), was promulgated. The said Ordinance was published in the Assam Gazette dated 28.6.93 and it came into force with retrospective effect from 30.7.92. During the period from 29.7.92 to 28.6.93 the tax on the sale proceeds of mustard oil in the State of Assam was imposed. But by promulgation of said Ordinance i.e., Assam Taxation Laws (Amendment) Ordinance, 1993, the sale of mustard oil was exempted from tax with retrospective effect from 30.7.92.

5. Assam Sales Tax Act, 1947 and Assam Finance (Sales Tax) Act, 1956 are repealed on the enactment of Assam General Sales Tax Act, 1993 which came into force w.e.f. 1.7.93 vide notification No. A.F.(S.T.) 71-77/99/211 dated 11.6.93 issued by the Commissioner & Secretary to the Govt. of Assam, Finance Department and published in the Assam Gazette Extra-ordinary dated 11.6.93. Section 74 of the Act i.e., Assam General Sales Tax Act, 1993 deals with repeal and savings of the Assam Sales Tax Act, 1947, Assam Finance (Sales Tax) Act, 1956, Assam (Sales of Petroleum and Petroleum Products including Motor Spirit and Lubricants) Taxation, Act, 1955 (Assam Act IX of 1956) and No. 4 Assam Purchase Tax Act, 1967 (Assam Act XIX of 1967). For easy reference Section 74 of Assam General Sales Tax Act, 1993 is quoted hereunder:

Repeal and savings

Section 74(1). The following laws are hereby repealed:

1. The Assam Sales Tax Act, 1947 (Assam Act XVII of 1947)

2. The Assam Finance (Sales Tax) Act, 1956 (Assam Act XI of 1956)

3. The Assam (Sales of Petroleum and Petroleum Products including Motor Spirit and Lubricants) Taxation Act, 1955 (Assam Act IX of 1956)

4. The Assam Purchase Tax Act, 1967 (Assam Act XIX of 1967)

(2) Notwithstanding the repeal of the aforesaid laws by this Act and save as otherwise provided in Sub-section (3), all rules, notifications, registrations or other documents, forms and notice made or prescribed or issued there under which were in force immediately before the appointed day, and all proceedings for the assessment or reassessment of any dealer or person in respect of such period may be taken or continued as if this Act had not been passed.

(3) Notwithstanding anything contained in Sub-section (2) in respect of the following matters relating to any period ending before the appointed day, the provisions of this Act shall apply to--

(a) an appeal or application for refund, rectification or revision, in respect of any period ending before the appointed day, provided such appeal or application had been made and the time limit for such appeal or application had not expired before the appointed day:

(b) any proceeding by way of rectification or revision in respect of any period ending before the appointed day provided the time limit for such rectification or revision has not expired before the appointed day ;

(c) any penalty, offence and prosecution in case of return, statement of accounts delivered, furnished or produced on or after the appointed day;

(d) any tax, interest, penalty or other dues remaining unpaid on the appointed day;

(e) any tax relating to any period ending before the appointed day which is refunded able on or after the appointed day;

(f) any exemption of tax by way of grant of relief from any date before the appointed day;

(4) Notwithstanding anything contained in Section 5, Section 33 and Sub-section (3) of Section 74, all proceedings for appeals pending before the Assam Board of Revenue, constituted under the Assam Board of Revenue Act, 1959 (Assam Act VIII of 1960) or any statutory modification or enactment thereof before the appointed day may be taken or continued as if this Act has not been passed.

(Emphasis Supplied)

6. For the period ending 30.9.92, the petitioner No. 1 filed its return of turnover showing the sale proceeds of mustard oil Rs. 9,91,663/- as taxable in view of levy of tax on mustard oil at 2% w.e.f. 30.7.92 under the provisions of the Act in pursuance of amendments made by Assam Taxation Laws (Amendment) Act. 1992. As there was strong protests from the public against the imposition of tax on the sale proceeds of the mustard oil in the State of Assam, the petitioner did not collect the tax from the customers but the assessing authorities made assessment order dated 6.1.93 for payment of tax on the sale proceeds of the mustard oil for the period ending 30.9.92 (Annexure-ii to the present writ petition).

7. The assessing authority also made assessment order dated 27.12.96 for the period ending 31.3.93 and also another assessment order dated 27.12.96 for the period ending 30.6.93. The petitioner had to pay tax amounting to Rs. 41,172/- and Rs. 27,767/- for the period ending 31.3.93 under pressure of the departmental authority. The payment of Rs. 43,172/- was made by the Challans under protest in view of pressure exercised by the Inspector of Taxes due to extreme financial stringencies of the Govt. of Assam with the understanding that the same would be refunded when levy of tax on mustard oil is withdrawn. Another sum of Rs. 27,767/- was paid on different dates at the Shrirampur Check Gate at the insistence of the Check Post authority for payment of tax as security in respect of the imported goods. Similarly a sum of Rs. 5,650/- was paid in period ending 30.6.93 at the Shrirampur Check Gate. The petitioner also stated that the taxes paid were not collected from the purchasing dealers in respect of sales of mustard oil.

8. The petitioner preferred appeal before the respondent No. 3 challenging the levy of tax on mustard oil under the said assessment orders dated 6.1.93, 27.12.96 and 27.12.96. The appeal filed by the petitioner has been rejected by the respondent No. 3 (Deputy Commissioner of Taxes, Silchar Zone, Silchar dated 15.6.98 with the observation that:

More over on perusal of the materials on record it is seen that the authority on considering of the available material were not persuaded with the contention of the petitioner that the taxes were not charged or collected by the petitioner, no material evidence what-so-ever was produced before the taxing authority that the petitioner/dealer did not charge any tax on the sale of goods. The burden of proof is undoubtedly on the petitioner. A person who seeks to relieve himself from the liability of tax imposed by law is required to prove and establish the necessary ingredients to exonerate itself from the burden of tax. In case then is any doubt the benefit of doubt will go to the Government since it represent public interest. Whether the petitioner charged any tax in a pure question of facts and it can not be determined by assumption and presumption.

9. Being aggrieve by the order of the learned appellate authority i.e respondent No. 3 dated 15.6.98 the petitioner again filed a revision petition before the respondent No. 4 (Additional Commissioner of Taxes, Assam). The respondent No. 4 under his order dated 5.10.98 dismissed the revision petition filed by the petitioner with the observation that 'I found it difficult to believe that the petitioner didn't collect tax on sale of taxable items. Moreover the petitioner paid taxes with the return filed for the periods. I agree with the views expressed by the Deputy Commissioner of Taxes (Appeals) in this respect and hence don't like to interfere with orders passed by him in the matter. Petitions are therefore, dismissed.' Hence, the present writ petition.

10. So far as the assessment order dated 6.1.93 for the period ending 30.9.92 is concerned, the assessing authority passed assessment order dated 6.1.93 for appointment of tax on the sale proceeds of the mustard oil, in as much as, at the time of passing the said assessment order dated 6.1.93, the tax was imposed on the sale of mustard oil during that period i.e., 29.7.92 to 28.6.93 i.e., date of promulgation of the Assam Taxation (Amendment) Ordinance, 1993. After the enforcement of Assam General Sales Tax Act, 1993 which came into force w.e.f. 1.7.93, the petitioner filed the said appeal against the assessment order dated 6.1.93 as late as 1998. Under Sub-section (3) of Section 74 of the Assam General Sales Tax Act, 1993, the provisions of Assam General Sales Tax Act, 1993, would apply to the application/appeal provided such application/appeal had been made within the time limit provided for such application/appeal and had not expired before the appointed date i.e., (1.7.93) and the pending penalty/offence and prosecution in case of return, statement of accounts delivered, furnished or produced on or after the appointed day. The period for filing appeal under the repealed Act i.e., Assam Finance (Sales Tax) Act, 1956 is 30 days. In such a situation, the assessment order dated 6.1.93 had attended the finality and cannot be treated as an assessment order against which appeals/applications were pending at the time of enforcement of the Assam General Sales Tax Act, 1993. Such being the unavoidable inference after conjoint reading of Sections 19 and 20 of the Assam Finance (Sales Tax) Act, 1956 and Section 74 of the Assam General Sales Tax Act, 1993, the assessment order dated 6.1.93 cannot be set aside in the appeal filed by the petitioner in 1998 before the Deputy Commissioner of Taxes, Silchar Zone, Silchar-respondent No. 3 and the revision petition filed in 1998 before the Additional Commissioner of Taxes, Assam, Guwahati-respondent No. 4.

11. The order dated 15.6.98 passed by the respondent No. 3 and order dated 5.10.98 passed by the respondent No. 4 for not interfering with the assessment order dated 6.1.93 is not interfered with by this Court.

12. The Apex Court in Sri Mandir Sita Ramji v. Governor of Delhi and Ors. reported in : [1975]1SCR597 held that

When a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notion of justice. When the legislator has spoken, judge cannot afford to be wiser.

13. The Apex Court in a case arising from this Court, i.e., in Dinesh Chandra Sangma v. State of Assam and Ors. reported in : (1978)ILLJ17SC held that it is a cardinal rule of construction that no words should be considered redundant or surplus in interpreting the provisions of a statute or a rule. Again, the Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Anr. Reported in : AIR2003SC511 , held that the scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words, statutory enactments must ordinarily be considered according to its plain meaning and no other words would be added, after or modify unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.

14. It is also equally well settled that law/regulation is made not be to broken but to be obeyed according to the decisions of the Apex Court in a catena of cases, one of which is the decision of the Apex Court, i.e., a Constitution Bench in Kartar Singh v. State of Punjab reported in . Para 36 of SCC in Kartar Singh v. State of Punjab (supra) reads as follows:

36. Law is made not to be broken but to be obeyed and the respect for law is not retained by demonstration of strength but by better appreciation of the reasons, better understanding of its reality and implict obedience. It goes without saying that the achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes falls in crises.

15. Keeping in view of the ratio laid down by the Apex Court regarding the cardinal rule of construction, this Court requires to construe the relevant provisions of the Assam Sales Tax Act, 1956, the Assam Sales Tax Act, 1947, Assam Taxation Laws (Amendment) Ordinance, 1993 and the Assam General Sales Tax Act, 1993 in, (Assam Ordinance No. III of 1993) in order to decide the legality and/or illegality of the assessment order dated 27.12.96 for the period ending 31.3.93 (Annexure-3 to the writ petition) and assessment order dated 27.12.96 for the period ending 30.6.93 (Annexure-4 to the writ petition).

16. As discussed above, the Assam Sales Tax Act 1947 and Assam Finance (Sales Tax) Act, 1956 had been repealed w.e.f. 1.7.93 on the enactment of the Assam General Sales Tax Act, 1993 which came into effect from 1.7.93. The sale of mustard oil within the State of Assam was exempted from tax upto 29.7.92 under Section 7(1) of the Assam Sales Tax Act, 1947. The exemption from tax was withdrawn w.e.f. 30.7.92 by the Assam Taxation Laws (Amendment) Act, 1992. However, the imposition of tax on mustard oil was withdrawn by the Assam Taxation Laws (Amendment) Ordinance, 1993 with retrospective effect from 30.7.92. For easy reference, the Assam Taxation Laws (Amendment) Ordinance, 1993 is quoted hereunder:

No. 1 GI. 80/93/3 The following Ordinance made and promulgated by the Governor of Assam is hereby published for general information.

The Assam Gazette Extraordinary, June 28, 1993

Assam Ordinance No. III of 1993.

The Assam Taxation Laws (Amendment)

Ordinance 1993An Ordinance

to amend the Assam Sales Tax Act, 1947 and the Assam Finance (Sales Tax) Act, 1956.

Whereas, the Legislative Assembly of the State of Assam is not in session and the Governor of Assam is satisfied that circumstances exist which render it necessary for him to take immediate action for amending the Assam Sales Tax Act, 1947 (AssamAct XVII of 1947) and the Assam Ordinance (Sales Tax) Act, 1956 (Assam Act XI of 1956) hereinafter referred to as the Principal Act.

Now, therefore, in exercise of the powers conferred by Clause (1) of the Article 213 of the Constitution of India, the Governor of Assam is pleased to promulgate, in the forty-fourth Year of the Republic of India, the following Ordinance, namely:

CHAPTER-I

1.(1) This ordinance may be called the Assam Taxation Laws (Amendment) Ordinance 1993.

(2) It shall have the like extent as the Principal Acts.

(3) It shall be deemed to have come into force with effect from 30.7.92

The Assam Gazette,Extraordinary, June 28, 1993

Chapter II

Amendment of the Assam Sales Tax Act, 1947

2. In the Assam Sales Tax Act, 1947 as amended, in the Schedule III.

(i) in item 1 for the existing provision, the following shall be inserted, namely:

1. All Cereals and pulses including all forms of rice

(ii) in item 21 for the existing provision, the following shall be inserted namely,

21. Mustard Oil, Rapseed Oil and mixture of mustard and rapseeds

Chapter-III

Amendment of the assam finance (Sales Tax) Act, 1956.

3. In the Assam Ordinance Sales Tax Act, 1956, as amended, in the schedule item 16 and 11 shall be deleted.

17. From bare perusal of the Ordinance 1993, it is crystal clear that it shall be deemed to have come into force with effect from 30.7.92. As such from the date of promulgation of the Ordinance 1993, there was no law for imposition tax on the said sale proceed of mustard oil, inasmuch as, exemption from tax on the sale of mustard oil within the State of Assam operate from 30.7.92. At the time of passing of the assessment order dated 27.12.96 for the period ending 31.3.93 and assessment order dated 27.12.96 for the period ending 30.6.93, there was no law for imposition of tax on the sale proceeds of the mustard oil in the State of Assam, in as much as, Assam General Sales Tax Act, 1993 was very much in force.

18. By virtue of Sub-section (3) of Section 74, read with Sections 33 and 36 of the Assam General Sales Tax Act, 1993 and also read with Sections 19 and 20 of the Assam Sales Tax Act, 1956, the respondent Nos. 3 and 4 could have entertained the appeal and the revision respectively against the assessment order dated 27.12.96 for the period ending 31.3.93 (Annexure-3 to the present writ petition) and the assessment order dated 27.12.96 for the period ending 30.6.93, and the assessment orders are not sustainable in the eye of law. Accordingly, the assessment order dated 27.12.96 for the period ending 31.3.93 (Annexure-3 to the writ petition) and the assessment order dated 27.12.96 for the period ending 30.6.93 (Annexure-4 to the present writ petition) are hereby set aside and in the result the order dated 15.6.98 (Annexure-5 to the present writ petition) passed by the respondent No. 3, Deputy Commissioner ofTaxes, Silchar Zone, Silchar and the order dated 5.10.98 passed by the respondent No. 4 Additional Commissioner of Taxes, Assam so far as the said 2 (two) assessment orders having the same dated 27.12.96 are hereby set aside.

19. By applying the ratio laid down by the Apex Court (9 Judges) in Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. : 1997(89)ELT247(SC) and the Union of India and Anr. v. Raj Industries and Anr. : 2000(120)ELT50(SC) , the petitioner has to prove that the burden of taxes paid by him for the said two periods ending i.e., 31.3.93 and 30.6.93 have not been passed to the 3rd party (customers) basing on 'the principle of unjust and enrichment'. For such purpose, the assessment authority is directed to decide the limited question, whether any amount of tax paid by the petitioner for the period ending 31.3.93 and 30.6.93 had actually passed on to the 3rd party (customers) or not, but if it is found that the burden was already passed on to the 3rd party, then on the principles of 'unjust and enrichment' the amount of tax paid by the petitioner shall not be refunded to him

20. To the extent mentioned above, this writ petition is allowed. Parties are directed to bear their own

Subject	;Sales Tax/Vat
Court	Guwahati High Court
Decided On	Feb-07-2007
Judge	T. Nandakumar Singh, J.
Appellant	Chhaganmal Golchha and anr.
Respondent	State of Assam and ors.
Disposition	Petition allowed

Chhaganmal Golchha and anr. Vs. State of Assam and ors. - Court Judgment