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M/s. Greatship (India) Ltd. Versus Commissioner of Service Tax, Oil and Natural Gas Company Ltd.

2015 (4) TMI 1006 - BOMBAY HIGH COURT

Scope of Continental Shelf and Exclusive Economic Zone of India for the purpose of service tax - Legislative intent - Interpretation of Notification No.1/2002-Service Tax dated 1.3.2002, as amended by Notification No.21/2009-ST dated 7.7.2009 and the Notification No.14/2010-ST dated 27.2.2010 - whether the Notification No. 14/2010-ST dated 27.2.2010 is clarificatory / declaratory in nature - whether during the aforesaid period, the appellant was also liable to pay the service tax on the services .....

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words, a statute may introduce new rules of law and that in such case, it would amount to substantial change in the law and will not be necessarily retrospective. It has been held that for determining the nature of the Act regard must be had to the substance rather than the form. It has been held that if a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. It has been further held that an explanatory act is generally passed to supply an omission or .....

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ation of the Government of India in the Ministry of External Affairs dated 18.7.1986 and 19.9.1996 with immediate effect. It would thus be seen that for the first time from 1.3.2002, the areas in respect of which the notifications were issued in 1986 and 1996 were brought under the purview of the service tax. However, the notification only extended the applicability of service tax to the areas which were covered under the said notifications of 1986 and 1996. Even after issuance of 2002 notificat .....

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l shelf and exclusive economic zone of India. We find that the words used in the said notification are not capable of giving two meanings. - the 2010 Notification cannot be said to be clarificatory in nature, but it brings about substantive change in law. Whereas the 2002 Notification as amended by 2009 Notification is applicable only to the services rendered to installations, structures and vessels, the 2010 Notification widens the tax scope and amongst various other services also brings into t .....

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service rendered to the installations, structures and vessels. Not only this, but the Respondent also in the order- in-original has noted that the appellant is discharging applicable service tax on the services received by installations, structures and vessels in the Continental Shelf and Exclusive Economic Zone of India but was not discharging the service tax on services consumed by the seabed of Continental Shelf of India. - Decided against the revenue. - CENTRAL EXCISE APPEAL (LODGING) NO. 20 .....

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as to whether it brings about substantive change in law arises for consideration in the present Appeal. The question to be decided in the present Appeal revolves around the interpretation of Notification No.1/2002-Service Tax dated 1.3.2002, as amended by Notification No.21/2009-ST dated 7.7.2009 and the Notification No.14/2010-ST dated 27.2.2010. 2. The facts which are not in much dispute are as under :- (a) The appellant had entered into two contracts with M/s. Oil and Natural Gas Corporation .....

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in the Continental Shelf and Exclusive Economic Zone of India. These drilling activities were undertaken in open locations. Though it appears that the appellant in the original proceedings as well as before the learned Tribunal had raised an issue regarding classification of services, however, in the present appeal, the appellant has also not disputed that the services in question are covered by "Supply of Tangible Goods for use" as has been defined under Section 65(105)(zzzzj) of Chap .....

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ices rendered by these vessels for the purpose of prospecting mineral oil and as such for the services consumed by continental shelf of India or exclusive economic zone of India. The recipient of the service, ONGC, had also informed the appellant about the non-applicability of service tax on drilling work undertaken in open locations except the service provided to installations, structures and vessels in the Continental Shelf and Exclusive Economic Zone of India for the period between 7.7.2009 t .....

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hem to show cause as to why service tax amounting to ₹ 27,24,52,804/- should not be recovered from it along with interest under Section 75 and penalty under Sections 76 and 78 of the said Act. The appellant replied to the said show cause notice. Various contentions were raised by the appellant.However, in view of the questions of law raised on which the appeal was admitted, the only relevant contention would be that, the Notification dated 1.3.2002 as amended on 7.7.2009, made applicable t .....

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f India, for the purposes mentioned in column 3 of the Table. It was contended that the service provided by the appellant and which were consumed in the Continental Shelf of India and Exclusive Economic Zone of India have been brought in the tax net for the first time on 27.2.2010 and that thereafter the appellant was discharging the service tax liability in respect of the services rendered on that count. However, the Respondent no.1 rejected the contentions raised on behalf of the appellant by .....

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wing substantial questions of law :- "(a) Whether in the facts and circumstances of the case, the Appellate Tribunal was correct in law in holding that the transactions involved in the present case falls under Notification No. 21/2009-ST dated 7.7.2009 (as it stood prior to amendment by Notification No. 14/2010-ST dated 27.2.1010) issued under clause (a) of sub-section (6) of section 6, and clause (a) of sub- section (7) of section 7, of the Territorial Waters, Continental Shelf, Exclusive .....

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7.7.2009 is taxable ?" 3. Heard Shri Sridharan, learned Senior Counsel appearing on behalf of the appellant. The learned Counsel submits that upon a plain reading of the amended Notification dated 7.7.2009, it is clear that the said Notification only makes the provisions of service tax applicable to the installations, structures and vessels in the Continental Shelf of India and the Exclusive Economic Zone of India. The learned counsel submits that since the services which are subject matter .....

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the Table of the said Notification in the Continental Shelf and Exclusive Economic Zone of India for the purposes mentioned in the column of the said Table. He submits that the services rendered were for the purpose of prospecting mineral oil in the Continental Shelf and Exclusive Economic Zone of India. The service tax liability accrued to the appellant only from 27.2.2010 and from that date, the appellant has discharged the liability towards the Service Tax. 4. As against this, Shri Jetly, th .....

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7.2.2010 is, at the most, declaratory and explanatory so as to clear the doubts which were there in the Notification of 2002 which was amended on 7.7.2009. The learned counsel, therefore, submits that if the notification is clarificatory or explanatory in nature, the same will have to be given retrospective effect. The learned counsel, therefore, submits that the appeal is without merit and as such deserves to be dismissed. 5. With the assistance of the learned counsel for the parties, we have s .....

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s to whether mineral oil extracted from these areas can be treated as import liable to customs duty and as to whether goods supplied to these zones can be treated as export liable to duty. Considering the entire provisions of the said Act, the Apex Court observed thus :- "68. A combined reading of Sections 3, 6 and 7 of the Maritime Zones Act, 1976 shows that territorial waters, the seabed and subsoil underlying therein and the air space over such territorial waters form part of the territo .....

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f and exclusive economic zone, India has been given only certain limited sovereign rights and such limited sovereign rights conferred on India in respect of continental and exclusive economic zone cannot be equated to extending the sovereignty of India over the continental shelf and exclusive economic zone as in the case of territorial waters. Sub-section (6) of section 6 and sub-section (7) of Section 7 of the Maritime Zones Act, 1976 empower the Central Government by notification to extend any .....

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e deemed to be a part of India for the purposes of such enactments which are extended to those areas by the Central Government by issuing a notification". It has been held that sovereignty of India extends over the territorial waters and the seabed and subsoil underlying therein, the air space over such territorial waters, form part of the territory of India. It has been held that however, the position is different in the case of continental shelf and exclusive economic zone of India. The c .....

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ndia in respect of continental and exclusive economic zone cannot be equated to extending the sovereignty of India over the continental shelf and exclusive economic zone, as in the case of territorial waters. It was held that sub-section (6) of Section 6 and sub-section (7) of Section 7 of the Maritime Zones Act, empower the Central Government to issue a notification so as to extend applicability of any enactment in force in India with such restrictions and modifications which it thinks fit to t .....

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tended to those areas by the Central Government by issuing a notification. Having held thus, the Apex Court found that the mineral oil extracted and got to mainland from the areas in the continental shelf or exclusive economic zone, to which the Customs Act and Customs Tariff Act have been extended, by issuance of Notification under Sections 6 and 7 cannot be construed to be an import liable to Customs Duty and the goods supplied to these zones cannot be treated as export liable to duty. It was .....

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usive economic zones are concerned if a notification as provided under sub-section (6) of Section 6 and sub-section (7) of Section of the Maritime Zones Act is issued in respect of any area, by a a fiction of statute such area in the continental shelf and the exclusive economic zone of India, are deemed to be a part of India for the purpose of such enactments which are extended to those areas by the Central Government by issuing a notification. It can thus be seen that for making an enactment ap .....

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ification No. 1/2002-Service Tax dated 1.3.2002 (hereinafter referred to as the 2002 Notification ). "In exercise of the powers conferred by clause (a) of sub- section (6) of section 6, and clause (a) of sub-section (7) of section 7, of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (80 of 1976), the Central Government hereby extends the provisions Chapter V of the Finance Act (32 of 1994) to the designated areas in the Continental Shel .....

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f, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (80 of 1976 ), the Central Government hereby makes the following amendments ini the Government of India in the Ministry of Finance (Department of Revenue) Notification No. 1/2002-Service Tax, dated the 1 st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R. 153(E), dated the 1st March 2002, namely :- In the said notification, for the portion beginning with the words "designated areas in the Continent .....

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ive economic zone. In exercise of the powers conferred by clause (a) of the sub-section (6) of section 6, and clause (a) of sub-section (7) of section 7, of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976), the Central Government hereby extends the provisions Chapter V of the Finance Act (32 of 1994) to the [installations, structures and vessels in the continental shelf of India and the exclusive Economic Zone of India]" The .....

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rch, 2002, published in the Gazette of India, Extraordinary, vide number G.S.R. 153 (E), dated the 1 st March, 2002, except as respects things done or omitted to be done before such supersession, the Central Government hereby extends the provisions of Chapter V of the Finance Act, 1994 (32 of 1994), to the areas specified in column (2) of the Table below, in the continental shelf and exclusive economic zone of India for the purposes as mentioned in column (3 of the said Table :- Sl. No. The area .....

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e purpose of prospecting or extraction or production of mineral oil and natural gas. Any service provided or to be provided by or to such installations, structures and vessels and for supply of any goods connected with the said activity. 9. It can thus be seen from the Notification No.1/2002-Service Tax, that by exercising the powers conferred by clause (a) of sub-section (6) of Section 6 and clause (a) of sub-section (7) of section 7 of the Territorial waters, Continental Shelf, Exclusive Econo .....

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nomic zone of India.However, the said provisions were made applicable only to such of the areas which were only designated areas as declared by the notification by the Government of India, in the Ministry of External Affairs dated 18.7.1986 and 19.9.1996. 10. Vide the Notification No.21/2009-ST dated 7.7.2009, the notification No.1/2002 came to be amended. Portion beginning with the words "designated areas in the Continental Shelf" and ending with the words "with immediate effect& .....

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e provisions of service tax were made applicable to the entire continental shelf and exclusive economic zone of India. However, vide the said notification the services which are brought into the tax net were services to the installations, structures and vessels in the continental shelf of India and Exclusive Economic Zone of India. 11. By a Notification No.14/2010-Service Tax dated 27.2.2010, in supersession of the Notification No.1/2002-Service Tax dated 1.34.2002 the Central Government extende .....

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oduction of mineral oil and natural gas and supply thereof were brought into service tax net. Similarly, in case of installations, structures and vessels within the continental shelf and exclusive economic zone of India constructed for the purposes of prospecting or extraction or production of mineral oil and natural gas any service provided or to be provided by or to such installations, structures and vessels and for supply of any goods connected with the said activity was brought into service .....

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extraction or production of mineral oil and natural gas and for supply of goods connected with the said activity was also brought under the tax net 12. In this background, we propose to consider the question as to whether the 2010 Notification could be said to be declaratory, clarificatory or explanatory in nature and as such can be made applicable retrospectively or as to whether it bring the substantive change in law and cannot be made retrospectively applicable. 13. Their Lordships of the Ap .....

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ken a view that the " owner of house property" would only be such person who has become owner by means of a registered instrument. However, some of the High Courts had taken a view that the definition of owner of the house property' would also cover such persons who are entitled to enjoy benefits and income from the property in any manner they like. In para 46, Their Lordships have made a reference to a Judgment of the Delhi High Court, in Sushil Ansal v. CIT, wherein a suggestion .....

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Courts on the issue at hand. 48. In the Memorandum explaining provisions in Finance Bill 1987 concerning Section 27 reads as follows : SIMPLIFICATION AND RATIONALISATION OF PROVISIONS Enlarging the meaning of "owner of house property'' 27. Under the existing provisions of section 22 of the Income Tax Act, any income from house property is chargeable to tax only in the hands of the legal owner. As per section 27 of the Income Tax Act, certain persons who are not otherwise legal owner .....

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In some cases, pending resolution of disputes, the legal as well as the beneficial owners are assessed to tax in respect of the same income. As a measure of rationalisation, the Bill seeks to enlarge further the meaning of the expression "owner of house property", given in clause (iii) of section 27 by providing that a person who comes to have control over the property by virtue of such transactions as are referred to in clause (f) of section 269 UA will also be deemed to be the owner .....

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in relation to the assessment year 1988-89 and subsequent years." If this much is clear, the next thing to be considered is what is the effect of the amendment. 49. In Crawford's Statutory Construction, at page 107 paragraph 74 reads as follows : "74. Declaratory Statutes.-Generally speaking, declaratory statutes can be divided into two clauses : (1) those declaratory of the common law, and (2) Those declaring the meaning of an existing statute. Obviously, those declaratory of the .....

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author says "Declaratory Acts - A declaratory Act or enactment declares what the law is on a particular point, often 'for the avoidance of doubt'." 51. In Justice G.P. Singh's (Sixth Edition 1996) 'Principles of Statutory Interpretation' under the heading "declaratory statutes", the learned author has summed up as follows : "Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CR .....

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amble, and also the word 'declared' as well as the word 'enacted'. But the use of the words 'it is declared' is not conclusive that the Act is declaratory for these words may, at times, be used to introduce new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' .....

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t the amending Act is declaratory, it would not be so construed when the pre- amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law." 52. The above summing u .....

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power of the High Court to entertain a petition for exercising revisional juris-diction was before the amendment derived from s. 115, Code of Civil Procedure, and the legislature has by the amending Act attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act." (Emphasis supplied) 54. From the circumstances narrated above and from the Memorandum explaining the Finance .....

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ture so far as it relates to Section 27(iii), (iiia) and (iiib).Consequently, these provisions are retrospective in operation. If so, the view taken by the High Courts of Patna, Rajasthan, and Calcutta, as noticed above, gets added support and consequently the contrary view taken by the Delhi, Bombay and Andhra Pradesh High Courts is not good law." The Apex Court in the background of various divergent opinions taken by various High Courts with regard to the definition of "owner of hous .....

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Act in the case of Sedco Forex International Drill. Inc. &Anr. vs. Commissioner of Income Tax Dehradun & Anr. (2005) 12 SCC 717. In the said case, the appellant who was a foreign company, had entered into a wet lease with Oil Natural Gas Commission under which the appellant had agreed to supply oil rigs and the employees to man the rigs to enable ONGC to carry on offshore drilling in the territorial waters of this country. The appellant had entered into agreements (executed in U.K.) with .....

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)(ii) read with the Explanation thereto, in the Income Tax Act for the assessment years, prior to the amendment of the said provision by virtue of which explanation to the said provision was added in the yhear 1999. In this background, the Apex Court observed thus :- 12. In this state of the law, on 27th February, 1999 the Finance Bill, 1999 substituted the Explanation to Section 9 (1) (ii) (or what has been referred to by us as the 1999 Explanation). Section 5 of the Bill expressly stated that .....

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orated the substituted Explanation to Section (9)(1)(ii) without any change. 13. The Explanation as introduced in 1983 was construed by the Kerala High Court in Commissioner of Income tax vs. S.R. Patton [1992] 193 ITR 49, while following the Gujarat High Court's decision in S.G. Pgnatale (supra), to hold that the Explanation was not declaratory but widened the scope of Section 9(1)(ii). It was further held that even if it were assumed to be clarificatory or that it removed whatever ambiguit .....

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ly found that the salary of the assessee was paid by a foreign company. This Court dismissed the appeal holding it was a question of fact. [Commissioner of Income tax vs. S.R. Patton (1998) 8 SCC 608]. 15. Given this legislative history of Section 9(1)(ii), we can only assume that it was deliberately introduced with effect from 1.4.2000 and therefore intended to apply prospectively . It was also understood as such by the CBDT which issued Circular No. 779 dated 14th September, 1999 containing ex .....

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egarded as income earned in India. 5.3 This amendment will take effect from 1st April, 2000, and will accordingly, apply in relation to the assessment year 2000-2001 and subsequent years". 16. The departmental understanding of the effect of the 1999 amendment even if it were assumed not to bind the respondents under Section 119 of the Act, nevertheless affords a reasonable construction of it, and there is no reason why we should not adopt it. 17. As was affirmed by this Court in Goslino Mar .....

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planation must be read into the main provision with effect from the time that the main provision came into force . But if it changes the law it is not presumed to be retrospective irrespective of the fact that the phrase used are 'it is declared' or 'for the removal of doubts'. 18. There was and is no ambiguity in the main provision of Section 9(1)(ii). It includes salaries in the total income of an assessee if the assessee has earned it in India. The word "earned" had .....

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ively in the existing law and in addition is stated to come into force with effect from a future date, there is no principle of interpretation which would justify reading the Explanation as operating retrospectively". Considering the law on the issue, the Apex Court held that a cardinal principle of tax law is that, the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. An explanation to a statutory pr .....

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or "for the removal of doubts." The Apex Court held that there was no ambiguity in the main provision of Section 9(1)(ii). It only provides for taxing income of an assessee if the assessee had earned it in India. It has been held that the expression seeks to give an artificial meaning to the term "earned in India" thereby bringing the income earned for the rest period or leave period which has preceded and succeeded by the service rendered in India, also under the tax net an .....

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ection 271 (1)(c) was to penalize the assesesee for concealing particulars of the income and/or furnishing inaccurate particulars of such income. It was therefore contended that whether income returned was a profit or loss was really of no consequence. By Explanation 4 it was sought to be clarified that the penalty specified in the said section can be levied even if no tax is payable on the total income assessed. In this background, it will be appropriate to refer to the following observations o .....

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re, the date from which the amendment is made operative does not conclusively decide the question. The Court has to examine the scheme of the statute prior to the amendment and subsequent to the amendment to determine whether amendment is clarificatory or substantive. 7. In Reliance Jute and Industries Ltd. vs. Commissioner of Income Tax, West Bengal (1979 (120) ITR 921) it was observed by this Court that the law to be applied in income tax assessments is the law in force in the assessment year .....

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g provisions of the statute that the expression income' should be understood to include losses. The expression profits and gains' refers to positive income whereas losses represent negative profit or in other words minus income. This aspect does not appear to have been noticed by the Bench in Virtual's case (supra). Reference to the order by this Court dismissing the revenue's Civil Appeal No.7961 of 1996 in Commissioner of Income Tax v. Prithipal Singh and Co. is also not very i .....

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of the Wanchoo Committee pursuant to 8 which Explanation 4(a) was inserted w.e.f. 1.4.1976 needs to be noted. At para 2.74 it was noted as follows: "2.74 We are not unaware that linking concealment penalty to tax sought to be evaded can, at times, lead to anomalies. We would recommend that, in cases where the concealed income is to be, set off against losses incurred by an assessee under other heads of income or against losses brought forward from earlier years, and the total income thus, g .....

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th reference to the charging provisions of the statute that the expression income' should be understood to include losses inasmuch as losses represent negative profit or minus income. In this background, th Apex Court held that the act was intended to make the position express which otherwise was implied. In this background, it was held by the Apex Court that the Explanation was clarificatory in nature and not substantive and retrospectively applicable. 16. In the case of WPIL Ltd. Ghaziabad .....

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tion No. 46/94 dated 1.3.1994. It was submitted that the power-driven pumps were shown as an exempted item. However, due to inadvertence, parts of power-driven pumps used in manufacture of pumps within the factory which were all along exempted from 1978 were omitted. It was stated that the said omission was brought to the notice of the Government by the industries. It was further submitted that the Government was satisfied and accordingly amended Notification No.46/94 vide Notification No.95/94 .....

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erved in para 16 :- "16. In view of the consistent policy of the Government of exempting parts of power driven pumps utilized by the factory within the factory premises, it could not be said that while issuing notification No.46/94 of March 1, 1994, the exemption in respect of said item which was operative was either withdrawn or revoked. The action was taken only with a view to rescinding several notifications and by issuing a composite notification. The policy remained as it was and in vi .....

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cies Ltd. 2009 (14) S.T.R. 593 (S.C.) a question arose for consideration before Their Lordships as to whether the following expressions in sub-clause (1), which was inserted by the Finance Act 2008 was clarificatory or declaratory in nature so as to have the retrospective effect. "Explanation - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "service in relation to promotion or marketing of service provided by the client" includes any ser .....

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ve law may also be introduced. In this background the Apex Court observed thus : "36. It is, therefore, evident that by reason of an explanation, a substantive law may also be introduced. If a substantive law is introduced, it will have no retrospective effect." The notice issued to the assessee by the appellant has, thus, rightly been held to be liable to be set aside. Subject to the constitutionality of the Act, in view of the explanation appended to this, we are of the opinion that .....

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. We are herein not concerned as to whether it was constitutionally permissible for the Parliament to do so as we are not called upon to determine the said question but for our purpose, it would be suffice to hold that the explanation is not clarificatory or declaratory in nature." 18. Recently, the Constitution Bench of the Apex Court in the case of Commissioner of Income Tax (Central)-I, New Delhi vs. Vatika Township Pvt.Ltd. (2015) 1 SCC 1, had an occasion to consider whether the proviso .....

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amending clause does not seek to explain any pre- existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional juristdiction was before the amendment derived from s. 115, Code of Civil Procedure, and the legislature has by the amending Act attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act." .....

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x Act to be prospective and inapplicable for any assessment year prior to 1 st April, 1962, the date on which the Income Tax Act came into force: "11. Now it is a well settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability o .....

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ty or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." 36. In the case of C.I.T., Bombay v. Scindia Steam Navigation Co. Ltd.11, this Court held that as the liability to pay tax is computed according to the law in force at the beginning of the assessment year, i.e., the first day of April, any chang .....

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tive in nature." It can thus be seen that taking into consideration that the law brought about a substantive change, the Constitution Bench refused to consider it clarificatory or declaratory in nature. 19. From the analysis of the aforesaid Judgments of the Apex Court, it would be clear that if the statute uses the words "it is declared" or " it is clarified for removal of doubts", then it will be presumed that the amending law is declaratory or clarificatory. However, .....

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s construed retrospectively. It has been further held that an explanatory act is generally passed to supply an omission or to clear up doubts as to meaning of previous Act. However, in the absence of clear words indicating that the meaning of the Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. 20. In the case of Poddar Cement Ltd. & Ors. (cited supra), the Apex Court found that there was divergence of opinions with regard to the inte .....

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in nature, so as to clarify the doubts as to who would come within the ambit of definition of "owner of house property". 21. In the case of Gold Coin, it was held that the provisions of Section 271 penalize the assessee for concealing particulars of the income and/or furnishing inaccurate particulars of such income. It was further held that by earlier judicial pronouncement the definition of income' was also interpreted to include loss as it was negative profit. It was found that s .....

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case of WPIL Ltd. Ghaziabad (cited supra), it was found that right from 1978, various notifications were issued exempting the payment of duty on the manufacture of power-driven pumps and parts thereof. However, when various notifications granting exemptions were consolidated and fresh notification was issued on 1.3.1994, though the power-driven pumps were included in exempted items, the parts of power- driven pumps were omitted. A representation was made to the Government pointing out this erro .....

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rtificial meaning to the term earned in India and also brings under the tax net salary for the rest period when the assessee was not working in India, makes a substantive change in the existing law and as such could not be said to be clarificatory in nature. It is to be noted that even though in the amendment words "removal of doubt it is clarified" were used, the aforesaid view has been taken by the Apex Court. 24. Similarly, in the case of Martin Lottery Agencies Ltd., though the wor .....

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ge and as such could not be held to be declaratory or clarificatory and as such did not have retrospective operation and held that it would only apply prospectively. It is to be noted that even by the amendment, the words "for removal of doubts", "it is declared" were used. 25. In this background, we have to consider as to whether the 2010 Notification can be said to be declaratory or clarificatory in nature or as to whether it brings into effect the substantive change in law .....

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Central Government by issuing notification. It would thus be clear that insofar as continental shelf and exclusive economic zone is concerned, unless a notification is issued in exercise of powers under sub-section (6) of Section 6 and sub-section (7) of Section 7 of Maritime Zones Act, the areas in the continental shelf and exclusive economic zone cannot be considered to be the area where the sovereignty of India extends. Only upon issuance of such notification, the areas which are so notified .....

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y of service tax extends to the whole of India except the State of Jammu and Kashmir. The expression "India" includes the territorial waters of India. Indian territorial waters extend up to twelve nautical miles from the Indian land mass. Chapter V of the Finance Act which governs the levy of Service Tax has not extended to the levy to designated areas in the Continental Shelf and the Exclusive Economic Zone of India ( as has been done in case of Central Excise vide Notification No. 16 .....

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er the provisions of Maritime Zones Act, then the provisions of Chapter V of Finance Act which governs the levy of Service Tax could not be made applicable to any area in the continental shelf and exclusive economic zone of India. 28. For the first time, the 2002 Notification was issued under the provisions of the Maritime Zones Act on 1.3.2002 thereby extending provisions of Chapter V of Finance Act to the designated areas in the continental shelf and exclusive economic zone of India as declare .....

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f 2002 notification, the provisions of Chapter V of the said Act did not apply to the other areas in the continental shelf and exclusive economic zone of India which were not covered by the said notifications. 29. The 2009 July Notification brought an amendment by which the words beginning with "designated areas in the continental shelf" and ending with the words "with immediate effect" were substituted by the words "installations, structures and vessels in the continent .....

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ation came under the tax purview. Prior to that, only such of installations, structures and vessels in the continental shelf of India and exclusive economic zone of India were under the tax net, if they were in the areas as notified in 1986 and 1996 notifications. However, the July, 2009 Notification removed the said restrictions and the service tax provisions were made applicable to the installations, structures and vessels in the continental shelf of India and the exclusive economic zone of In .....

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pect of whole of continental shelf and exclusive economic zone of India, any services provided for activities pertaining to construction of installations, structures and vessels for the purposes of prospecting or extraction or production of mineral oil and natural gas and supply thereof have been brought under the tax net. It would further be seen from Sr. No.2 of the table, that insofar as the installations, structures and vessels within the continental shelf and exclusive economic zone of Indi .....

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ctures and vessels for the purpose of prospecting or extraction or production of mineral oil and natural gas and supply thereof under the tax net. Perusal of Sr. No.2 of the Table would reveal that insofar as installations, structures and vessels within the continental shelf and exclusive economic zone of India constructed for the purpose of prospecting or extraction or production of mineral oil and natural gas are concerned, any services provided or to be provided by or to such installations, s .....

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vessels. The comparison would show that insofar as the installations, structures and vessels are concerned, though the 2002 Notification as amended in 2009, covers only the service to the installations, structures and vessels, by way of 2010 Notification, the services to or by the installations, structures and vessels have been brought into the tax net. 31. The principles while interpreting the tax statute have been stated by the Apex Court in the case of Commissioner of Income-tax, Madras, vs. .....

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se; and also that every Act of Parliament must be read according to the natural construction of its word. In a classic passage LORD CAIRNS stated the principle thus: "If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hands, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of .....

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is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." Relying upon this passage Lord Upjohn said: "Fiscal measures are not built upon any theory of taxation". "10. It is obvious that the Legislature has deliberately used the word moneys.' Wherever the Legislature intended to refer to payment in kid other than cash or money, it has taken care to provide specifically t .....

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iness or profession. In S. 93(4)(c), benefit' is defined as a payment of any kind for the purposes of the section. A converse case arose before the Calcutta High Court in Commr. Of Income-tax, West Bengal-H v. Kanan Devan Hills Produce Company Ltd. (1979) 119 ITR 431: (1979 Tax LR NOC 163) in which the words "which results directly or indirectly in the provision of any benefit or amenity or perquisite whether convertible into money or not" in Cl. (c) (iii) of S. 40 of the Act came .....

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not propose to burden the Judgment with plethora of authorities. We will only refer to two recent Judgments of the Apex Court. In the case of Commissioner of Income Tax-III vs. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444. The Apex Court considered its earlier Judgments and observed thus :- " 24. We may gainfully refer to The Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 KB 64 at 71 which involved the Finance (No. 2) Act 1915 which imposed excess profits duty on trade or .....

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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." 25. In Commissioner of Stamp Duties (NSW) v. Simpson, (1917) 24 CLR 209 Barton J., citing Viscount Haldane in Lumsden v Inland Revenue Commissioners, [1914] AC 877, stated the following: "The duty of Judges in construing Statutes is to adhere to the literal Construction unless the context renders it plain that such a construction c .....

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a settlement and that Section 49 providing for deed poll was not applicable and therefore, the taxpayer did not have to pay any stamp duty. 26. Lord Granworth in Grundy v. Pinniger, (1852) 1 LJ Ch 405 has observed that: "To adhere as closely as possible to the literal meaning of the words used,is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom." That is to say, once the literal rule is departed, then any number of interpretati .....

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Lexis Nexis, p. 863; Vepa P. Sarathi, Interpretation of Statutes, 5th Ed., Easter Book Company, Chapter VIII, Taxing Statutes). ThisCourt in CIT v. Keshab Chandra Mandal, AIR 1950 SC 265 has held that hardship or inconvenience cannot alter the meaning of the language employed by the legislature if such meaning is clear and apparent. Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint to do so.(Pandian Chemicals Ltd. v. .....

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(7) SCC 273) 28. The Australian High Court in Federal Commissioner of Taxation v .Westraders Pty Ltd, (1980) 144 CLR 55 considered the scope of Section36A of the Income Tax Assessment Act, 1936(Cth), which on a literal interpretation allowed the taxpayer to make a profit and still claim a loss for tax purposes. The Commissioner argued the taxpayer's conduct amounted to a tax avoidance scheme and should therefore be disallowed under Section 260 of the Income Tax Assessment Act, 1936(Cth). Th .....

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which will attract an obligation on the part of the citizen to pay tax. The function of the court is to interpret and apply the language in which the Parliament has specified those circumstances. The court is to do so by determining the meaning of the words employed by the Parliament according to the intention of the Parliament which is discoverable from the language used by the Parliament. It is not for the court to mould or to attempt to mould the language of the statute so as to produce some .....

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td v. Inland Revenue Commissioners, [1975] 1 WLR 413 and BP Refinery (Westernport) Pty Ltd v. Hastings Shire, (1977) 180 CLR 266. 30. In Hepples v. FCT, (1991) 173 CLR 492, the High Court of Australia unequivocally favoured the principle that taxation legislation should be subject to a strict literal interpretation and opined that such an approach was supported by 'common sense'. Therein, the taxpayer, on ceasing to be employed, was paid $40,000 by his employer in exchange for the taxpay .....

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te of Andhra Pradesh has ascribed plain meaning to the terms computer and computer programme in a fiscal statute and reiterating the proposition laid down in Inland Revenue Commissioner case (supra), observed that a court should not be over zealous in searching ambiguities or obscurities in words which are plain. 32. In Prakash Nath Khanna v. C.I.T., 2004 (9) SCC 686, this Court has explained that the language employed in a statute is the determinative factor of the legislative intent. The legis .....

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nd and Ors.v. Mohan Koikal and Ors., (2011)4 SCC 266 this Court has observed as follows: "32. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is,without distorting or twisting its language. 33. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says " .....

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is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean." 34. Thus, the language of a taxing statute should ordinarily be read understood in the sense in which it is harmonious with the object of the statute to effectuate the legislative animation. A taxing statute should be strictly con .....

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he proviso to Sec. 113 of the Income Tax Act which provided for levy of surcharge on tax on undisclosed income, found during search and seizure for the block assessment period was prospective or retrospective in nature. While holding the said provision to be prospective in nature, the Constitution Bench observed thus : "41. We would like to embark on a discussion on some basic and fundamental concepts, which would shed further light on the subject matter. 41.1 No doubt,there is no scope for .....

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stitutional goal as well, enshrined as one of its basic feature, which runs through our Constitution. It is for this reason, specific provisions are made in the Constitution, empowering the legislature to make laws for levy of taxes, including the income-tax. The rationale behind collection of taxes is that revenue generated therefrom shall be spent by the governments on various developmental and welfare schemes, among others. 41.2 At the same time, it is also mandated that there cannot be impos .....

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a particular tax or not. No doubt, with the application of this principle, Courts make endeavour to find out the intention of the legislature. At the same time,this very principle is based on "fairness" doctrine as it lays down that if it is not very clear from the provisions of the Act as to whether the particular tax is to be levied to a particular class of persons or not, the subject should not be fastened with any liability to pay tax. This principle also acts as a balancing factor .....

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tion: "Tax Statutes . . . should be strictly construed, and, if any ambiguity be found to exist, it must be resolved in favor of the citizen. Eidman v.Martinez, 184 U.S. 578, 583; United States v. Wigglesworth, 2 Story, 369,374; Mutual Benefit Life Ins. Co. v. Herold, 198 F. 199, 201, aff'd 201 F.918; Parkview Bldg. Assn. v. Herold, 203 F. 876, 880; Mutual Trust Co. v.Miller, 177 N.Y. 51, 57." 41.4 Again, in United States v. Merriam[15], the Supreme Court clearly stated at pp. 187- .....

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he taxpayer. Gould v. Gould, 245 U.S. 151, 153" 41.5 As Lord Cairns said many years ago in Partington v. Attorney-General[16]: "As I understand the principle of all fiscal legislation it is this : If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax,cannot bring the subject within the letter of the law, the subject is free,howeve .....

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urts have to adhere to literal interpretation. At first instance, the Court is required to examine the language of the statute and make an attempt to derive its natural meaning. The Court interpreting the statute should not proceed to add the words which are not found in the statute. It is equally settled that if the person sought to be taxed comes within the letter of the law he must be taxed, however, great the hardship may appear to the judicial mind to be. On the other hand, if the Crown see .....

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ay while interpreting the taxing statute. It is equally settled that nothing is to be read in, nothing is to be implied and one is required to look fairly at the language used and nothing more and nothing less. No doubt, there are certain judgments of the Apex Court which also holds that resort to purposive construction would be permissible in certain situation. However, it has been held that the same can be done in the limited type of cases where the Court finds that the language used is so obs .....

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find that the words used in the said notification are not capable of giving two meanings. As already discussed hereinabove, prior to 2002, the areas in the continental shelf and exclusive economic zone of India were not brought under the purview of service tax net. Only by the Notification of 2002, the said provisions were made applicable to the areas in the continental shelf and exclusive economic zone of India, only insofar as the areas which were covered under the 1986 and 1996 notifications. .....

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ion of mineral oil and natural gas, including the services rendered to or by such installations, structures and vessels. 36. It is further to be noted that it is a settled principle of law that, it is presumed that each and every word used by the legislature is with some intention. It is equally settled that each and every word used by the legislature is to be required to be given meaning and not ignored. It is to be noted that in the 2010 notification no such words like "it is clarified fo .....

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ce tax dated 1.3.2002". It could thus be clear that the legislative intent is to supersede the 2002 Notification as amended in 2009 and substitute with 2010 notification. The legislative intent could further be gathered from the following words : "except as things done or omitted to be done before such super session." It would thus be seen that what has been saved by the notification upon supersession is only in respect of things done or omitted to be done before supersession i.e .....

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he Finance Act, 1994 to the areas specified in column 2 of Table in the continental shelf and exclusive economic zone of India for the purpose as mentioned in column 3 of the said Table. 37. It is sought to be contended on behalf of the Revenue that in 2002 Notification, as amended in 2009, this Court should construe that the legislature not only intended to make the provisions applicable to the installations, structures and vessels in the continental shelf and exclusive economic zone of India b .....

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considering the provisions of Andhra Pradesh Motor Vehicles Taxation Act, 1963, an argument was sought to be raised on behalf of the Revenue that it was permissible to supply casus omissus. Rejecting the said contention and relying on the observations made by His Lordship Tulzapurkar,, J. (as His Lordship then was), the Court observed thus :- "29. However, we may notice that therein only Tulzapurkar, J. stated the law thus: (SCC p.376, para 10) "In other words, under the first princip .....

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nt enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature." 30. Giving the plain meaning to the provisions referred to hereinbefore, in our opinion,the rate of tax could not be increased in derogation to the proviso appended to Section 3 of the Act. The notification in our opinion as it seeks to change the basis of the mode of taxation is illega .....

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ax on Consumption or Sale of Electricity Act, 2003. An argument was advanced that the words "unless different intention appears" should be read in Section 20(1) of the said Act. Rejecting the contention, the Apex Court observed as follows :- "92. Submission of Mr. Andhyarujina that this Court must read the words "unless a different intention appears" in sub- section (1) of Section 20 of the 2003 Act, in our opinion, is impermissible in law. We have rejected a similar con .....

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situation, may the court take recourse to purposive construction. It is also a well-settled principle of law that casus omissus cannot be supplied (See J. Srinivasa Rao v. Govt. of A.P.)." "93. The proviso appended to sub-section (1) of Section 20 of the 2003 Act although for all intent and purport incorporates Section 6 of the General Clauses Act but a significant departure therefrom must be borne in mind. If the legislature has used different words, or has omitted certain words, in o .....

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" or the Act does not contain a provision inconsistent therewith were known to the legislature. Whereas in sub- section (1) of Section 20 of the 2003 Act they did not introduce any such thing, they did so while enacting sub-section (2) thereof." The Apex Cort in unequivocal terms rejected the contention regarding supply of casus omissus. It held that the intention of the legislature must be gathered from the words used in the statute and only when such rule give rise to anomalous situa .....

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ure, but it brings about substantive change in law. Whereas the 2002 Notification as amended by 2009 Notification is applicable only to the services rendered to installations, structures and vessels, the 2010 Notification widens the tax scope and amongst various other services also brings into the service tax net the services rendered to or by the installations, structures and vessels. It can thus be seen that the present transaction, which is in the nature of providing services by the vessels o .....

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