TMI Blog1998 (12) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and that the Commissioner also thereafter on suo motu action remitted the proceedings to the original authority for considering the matter afresh and thereafter the original authority adopted the same method and common formula of assessment, as in other cases. 2.. For appreciating the grievance of the petitioners, it would not only be useful but necessary to advert to the facts in C.W.P. No. 555 of 1998. The petitioner is said to be running a petrol pump at Mehatpur in Una district and he has been issued with the licence by the Petrol Taxation Officer under the Himachal Pradesh Motor Spirit (Taxation of Sales) Act, 1968 (hereinafter referred to as "the Act") and the Himachal Pradesh Motor Spirit (Taxation of Sales) Rules, 1969, made thereunder. The petitioner in this case was subjected to assessment for the year 1992-93 vide order filed as annexure P-1 and for the year 1993-94 vide order filed as annexure P1/A of the Act under which apart from assessing the total tax due and payable penalty in a sum of Rs. 83,200 at 10 per cent and Rs. 400 p.m. for the months of April, 1992 to July, 1992, in all a sum of Rs. 83,600 was imposed. Similarly, for the year 1993-94 penalty in a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners is that because no time-limit or period for filing the returns as well as the stipulation of any date by which the same was to be submitted have been prescribed by any statutory rules after the insertion of section 5-A to section 5-C in the main enactment and the authority to which such returns were to be filed has not been prescribed and notified, the petitioners cannot be attributed with any lapse warranting imposition of penalty or levying of any interest, as has been done in all these cases. The said stand taken by the petitioners in their pleadings have been reiterated by the learned counsel Mr. M.M. Khanna at the time of arguments. In addition thereto, the learned counsel for the petitioners also placed reliance upon rule 16 of the Rules wherein it has been stipulated that if the amount of tax due is not deposited within the time prescribed under rule 15 the Petrol Taxation Officer shall cause a notice in form PF appended to the rules to be issued and served upon the retail dealer requiring him to make payment of the unpaid amount of tax within ten days of the service of the said notice and that every said notice may be given to the retail dealer at an ordinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss than 10 per cent but which shall not exceed one and a half times of the amount of tax to which he is assessed or is liable to be assessed. The petitioner, it is averred by the respondents not having ensured that this tax stood credited to the Government account within the stipulated period of 21 days, no exception could be taken to the levy of penalty under section 5-A(5) of the Act. The respondents also contend that inasmuch as, rule 15 of the Rules are still in force and provide for the manner in which the returns showing the sales of motor spirit are to be filed and tax paid in respect thereof, the petitioner who has not submitted the return and paid the tax in accordance therewith is liable to be proceeded against. 5.. Reference is also made to the factual details stated in the order under challenge to substantiate the stand taken for the respondents-authority. Reference and reliance is made to the terms of rule 15, condition No. 4 of the licence and the provisions contained in section 5-A(3) of the Act about the manner of submission of the returns and payment of tax into the Government Treasury, not less than 10 clear days before the expiry of the date prescribed under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is provided in the very provision the violation of which has been dealt with and therefore, the imposition of penalty and levy of interest is said to be justified. 7.. The learned Advocate-General while reiterating the stand taken as above in the reply invited our attention to the relevant provisions of the Act as also to some of the decisions in response to the attempt made by the learned counsel for the petitioners and the reliance placed by him on the provisions of the Act and the Rules as also some of the decisions cited in support thereof. 8.. Before adverting to a consideration of the relevant submissions by the learned counsel on either side, it would be appropriate to refer to the provisions of the Act and the Rules on which the learned counsel on either side placed strong reliance. The main Act, namely, the Himachal Pradesh Motor Spirit (Taxation of Sales) Act, 1968 (Act 10 of 1968) provided, as it was originally enacted, for the levy of tax on the retail sale of motor spirit and it contained a definition of retail dealer in addition to making at all relevant places about retail sales of motor spirit by a retail dealer and the levy of tax thereon. The Himachal Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment account and necessary receipt is issued by the bank in favour of the dealer: Provided further that where the payment is made through a crossed cheque and the cheque is dishonoured, the dealer shall be deemed to have not made the payment and shall be liable to any action which may be taken for not making payment under the Act or the Rules framed thereunder. Explanation.-For the purposes of this sub-section "Scheduled Bank" means a bank included in the Second Schedule to the Reserve Bank of India Act, 1934. (4) If any dealer discovers any omission or other error in any return furnished by him, he may, at any time, before the date prescribed for the furnishing of the next return by him, furnish a revised return, and if the revised return shows a greater amount of tax to be due than was shown in the original return, it shall be accompanied by a receipt showing payment, in the manner prescribed in sub-section (3) of extra amount. (5) If a dealer fails without sufficient cause to comply with the requirements of the provisions of sub-section (2) or sub-section (3) the Commissioner, or any person appointed to assist him under subsection (1) of section 20, may, after giving suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of one month and thereafter at the rate of one and a half per centum per month till the default continues: Provided that where the recovery of any tax or penalty is stayed by an order of the High Court, or the Supreme Court or any authority appointed under this Act, the amount of tax or penalty shall, after the order of stay is vacated, be recoverable along with interest at the aforesaid rate on the amount ultimately found to be due and such interest shall be payable from the date the tax or penalty first become due. (3) The amount of interest payable under this section shall,- (i) be calculated by considering if part of a month is more than fifteen days as one month and any amount if more than fifty rupees but, less than one hundred rupees as one hundred rupees; (ii) for the purposes of collection and recovery, be deemed to be tax under this Act; and (iii) be in addition to the penalty, if any, imposed under this Act." 9.. Likewise it is necessary to refer to some of the rules on which the submissions of the learned counsel on either side, require to be appreciated. Rules 15 and 16 read as follows: "15(a). Before the submission of the monthly return required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount shown in the monthly return has duly been made, shall cause to be issued a certificate in form P.E., appended to these Rules, and have it delivered to the retail dealer or his authorised manager or agent submitting the return, number and date of the certificate issued shall also be recorded at the foot of the return. 16.. (a) If the amount of the tax due has not been deposited within the time prescribed under rule 15, the Petrol Taxation Officer shall cause a notice in form P.F., appended to these Rules, to be issued and served on the retail dealer, requiring him to make payment of the unpaid amount of tax within 10 days of the date of service of the said notice. (b) Every notice issued under sub-rule (a) may be given to the retail dealer at his ordinary place or places of business or if the retail dealer be not found on the said premises, to any person in the employ of the retail dealer, who may be found upon the said premises, or if no such person be found, the same may be left at the said premises or affixed in a conspicuous position upon some building or erection in the occupation of the retail dealer. (c) If the tax is not paid within the time fixed by the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 102 STC 33 (Pat). A Division Bench of the Patna High Court held, while considering section 31 of the Bihar Finance Act, 1981, as substituted by Bihar Ordinance 20 of 1993, which laid down that the transporters shall carry a declaration in a prescribed form in respect of the goods carried and produce the declaration and bill before the prescribed authority and which conferred power on the authority to search and seize in case of transportation in a manner likely to lead to the evasion of tax, observed that after the amendment to the provisions by substituting certain new provisions by virtue of the amendment ordinance if no forms were prescribed under the new provisions and no notification by the Commissioner adopting the old forms was also made, there was no scope for initiating any proceedings under the new amended provisions on account of any failure to produce such documents or any defect in the old forms. Reference has also been made to the memorandum regarding delegated legislation appended to the bill which preceded the Amendment Act 11 of 1992 in which it was stated, while referring to clause 8 of the Bill as introduced, that it proposes to authorise the State Government to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de under the Mines Act, 1952. In State of Uttar Pradesh v. Batuk Deo Pati Tripathi [1978] 2 SCC 102, it was held that the powers to do a thing carries with it the powers to regulate the manner of doing it subject, however, to ensuring that the essence of the power is not thereby diluted. In A.S. Narayana Deekshitulu v. State of A.P. (1996) 9 SCC 548 while dealing with A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 it was observed that the existence of rules is not always a condition for the Act to become operative. In Surjit Singh Kalra v. Union of India (1991) 2 SCC 87, the apex Court was dealing with the amendment introduced by the Amendment Act, 1957 of 1988 to the Delhi Control Act, 1958 and while dealing with the omission to prescribe new forms of summons to be issued, it was observed that the provisions of the Act ought to receive always a purposeful construction and that though it is not permissible to read words in a statute which are not there but where the alternative lies between either supplying by implication words which appear to have been accidently omitted, or adopting a construction which deprives certain existing words of all meaning, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been made or issued and unless and until it is superseded by any such rules, orders or appointments made or notifications issued under the provisions so re-enacted. Consequently rule 15 will continue to be in force and enforceable as such and cannot be considered to have been either abrogated or rendered nugatory or otiose. The contention of the learned counsel that the amendment introduced by Act 11 of 1992 is not by way of repeal and re-enactment and therefore the provisions of section 23 will not therefore, be attracted is not correct. Repeal and/or amendment as a legislative practice is effected in different forms depending upon the exigencies necessitated to be met and it has been observed by the apex Court in AIR 1988 SC 740 (Bhagat Ram Sharma v. Union of India) as hereunder: "17. It is a matter of legislative practice to provide while enacting an amending law that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. Such a law may also provide for the introduction of a new provision. There is no real distinction between 'repeal' and an 'amendment'. In Sutherland's Statutory Constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n our judgment, under the provisions of the Assam General Clauses Act, 1915, section 26 saves the notification in question. Section 26 provides, inter alia: 'Where any enactment is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or, bye-law, made or issued under the repealed enactment, shall so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, ' There is no express provision in the Act 15 of 1957 which supersedes the notification issued in 1951 under the Act of 1923, nor is the continuance of the notification inconsistent with any provision in the new Act. The notification, must, therefore, be deemed to have remained in force and the State Government was competent in exercise of the power conferred upon it by section 4 of Act 15 of 1957 to include within the area of Town Committee any local area contiguous to the same." 14.. Once the provisions of rule 15 are held to continue to be in force, by virtue of section 19 of the Himachal Pradesh General Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enable or empower the rule-making authority to prescribe any time-limit within which the declaration could be filed. The apex Court was construing in the said decision the expression "in the prescribed manner" occurring in section 8(4) of the Central Sales Tax Act, 1956. So far as the case on hand is concerned the said reasoning cannot be successfully invoked to challenge the prescription made in the Rules to file the returns or pay the tax within the stipulated time. Section 5A enabled the rule-making authority to prescribe as to the manner in which as also the intervals at which the tax payable under the Act shall be paid. Clause (a) of sub-section (2) of section 24 also enables the rule-making authority to make rules for recovery of the tax leviable under section 3, including the fixing of the time when the tax is to be paid. Likewise, clause (c) of the said provision also enables the rule-making authority, by rules imposing on the dealers the duty of furnishing returns and of keeping records and registers of stocks and daily sales, etc., etc., and the manner in which they have to be verified and "all such other conditions thereof as may be necessary and prescribing a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, direct him to pay by way of penalty, a sum which shall not be less than ten per centum but which shall not exceed one and a half times of the amount of tax to which he is assessed or is liable to be assessed under section 5-B in addition to the amount of tax to which he is assessed or is liable to be assessed. A reference to rule 15 would show that before the submission of the monthly return it is required of a dealer licensed in form P1, P2, or P3 to pay the full amount of tax due under section 3 of the Act on all sales of motor spirit as shown in the monthly return, into a Government Treasury or the branch of the State Bank of India or at the office of the District Excise and Taxation Officer. It also provides specifically that a retail dealer licensed in form P1 shall prepare or cause to be prepared a return and shall lodge the said return with the Petrol Taxation Officer of the districts in which his licence has been issued, within 21 days of the close of the month to which it relates. A combined reading of the statutory provisions of the Act and in the rules would mean that the return obliged to be filed by the petitioners ought to have been lodged within 21 days of the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned, it is rendered possible if any dealer fails to pay the amount of tax due from him and inasmuch as we have indicated that on a combined reading of section 5-A and rule 15 the time within which the return should have been submitted or tax should have been paid, the quantum of interest to be levied also has to be reviewed or reconsidered in the light of the same in respect of the petitioners with reference to the orders under challenge before us. The authority concerned who passes any order under the Act has been conferred with the power of review under section 23 of the Act and we direct the concerned taxing authorities in these cases to take up on their own a review and reconsideration of the orders in the light of our orders to redetermine and revise, if need be, the quantum of penalty and interest and till such review and determination directed by us is made and revised orders, if any, are communicated to the petitioners concerned the taxing authorities shall withhold their hands for recovering any of the amount remaining due from the respective petitioners, under the orders under challenge. 17.. For all the reasons, we reject the claim of the petitioners that in the abs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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