TMI Blog2016 (7) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty was imposed on the petitioner for concealment of duty liability before the Settlement Commission itself. The order dated 14.11.2014, impugned in W.P. No.38658 of 2015, is set aside and the matter is remanded to the Settlement Commission for its consideration afresh in the light of the law declared and the observations made in this judgement. - Decided in favor of petitioner. - WRIT PETITION Nos.38658, 38728 AND 38751 OF 2015 - - - Dated:- 2-6-2016 - SRI RAMESH RANGANATHAN AND SRI SURESH KUMAR KAIT, JJ. FOR THE PETITIONER : PUSHYAM KIRAN FOR THE RESPONDENT : SATHYARAM(SR SC FOR CB EXCISE) COMMON ORDER : (per Hon ble Sri Justice Ramesh Ranganathan) W.P. No.38658 of 2015 is filed by the petitioner seeking a writ of mandamus to declare Order No.53/2014- ST dated 14.11.2014 passed by the 1st respondent, rejecting their settlement application with respect to service tax liability for the period October, 2010 to March, 2012, as arbitrary, illegal, unlawful and violative of principles of natural justice. W.P. No.38728 of 2015 is filed by the petitioner seeking a writ of mandamus to declare Order No.38/2013-ST dated 06.11.2013 passed by the first respondent, in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the third show-cause notice also, they had discharged their service tax liability; they disclosed particulars upto March, 2012, and sought settlement even beyond the period specified in the third show-cause notice; they also admitted additional liability under mining and mineral service, works contract service and goods transport service, which were earlier overlooked by the authorities; in its Order dated 14.11.2014, the Settlement Commission recorded that the previous two applications were filed on 28.01.2013 and 18.04.2013, by that time the third showcause notice issued on 24.04.2012 was already available in the hands of the petitioner, they could have filed an application for settlement at that time along with the previous applications or at least before the decision on the previous applications as the show cause notices were periodical in nature, and as the third application was filed after the earlier two applications were settled by the Commission, it was liable to be rejected in view of the bar under Section 32-O of the Central Excise Act ( the Act for short). The petitioner would contend that mere omission to file an application under Section 32-E of the Act in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of (i) mining of mineral, oil or gas services under Section 65(105)(zzzy) of the Finance Act, 1994; (ii) works contract services under Section 65(105)(zzzza) of the Finance Act, 1994, (iii) erection, commissioning or installation services under Section 65(105)(zzd) of the Finance Act, 1994, and short payment of service tax under transport of goods by road service falling under Section 65(105)(zzp) of the Finance Act, 1994; service tax of ₹ 18,19,78,297/- was demanded under Section 73(1) of the Finance Act, 1994 for the period 01.08.2008 to 30.06.2010; the show-cause notice proposed a demand of interest under Section 75, and penalty under Sections 76, 77 and 78 of the Finance Act; the show-cause notice was made answerable to the Commissioner, Customs, Central Excise and Service Tax, Hyderabad; subsequently, vide show-cause notice in OR No.137/2011 dated 22.10.2011, the Commissioner had demanded service tax of ₹ 2,68,19,623/-, for the period July, 2010 to September, 2010, based on the information provided by the petitioner to the department by their letters dated 02.08.2010, 30.08.2010 and 17.01.2011; the petitioner had furnished details of payment received by them, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said applications, the petitioner had accepted their liability by filing applicable declarations under Section 32E of the Act as made applicable to service tax matters under Section 83 of the Finance Act, 1994; the Settlement Commission, after a detailed hearing, observed that the application was hit by the bar in terms of the express provisions of Section 32-O of the Act; and the application filed by the petitioner was rejected by order dated 14.11.2014. It is further submitted, in the counter-affidavit filed on behalf of the 2nd respondent, that the orders passed by the Settlement Commission are the culmination of judicial proceedings under the provisions of Section 32P of the Act; these Orders were passed after conducting a number of detailed hearings in the case; the petitioner was claiming ignorance of the provisions of law; while admitting their liability, they had now come forward with the lame excuse which necessitated rejection; the petitioner was not a small or a medium assessee, who did not have the services of experienced Chartered Accountants; the petitioner, being a limited company and after obtaining registration for some of the taxable services provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... realized that the orders of the Settlement Commission were not judicious, and required intervention; and the Writ Petitions were liable to be dismissed. The counteraffidavit records the scope and jurisdiction of the Settlement Commission as (1) in view of Section 32-F, the Settlement Commission proceeds to decide and settle a case when an application is submitted by an assessee voluntarily making a true and correct declaration of the facts relating to the case; (2) the Settlement Commission is entitled to decide and may exercise all the powers of an original authority in deciding the case. The decision of the Settlement Commission is final and conclusive. It is not an appealable order in terms of Section 32-M of the Act; and (3) the object of the Settlement Commission is to settle an issue which has been brought before it at the instance of an assessee, and the function of the Settlement Commission is not an adjudicatory function. In its order dated 30.10.2013 the Settlement Commission observed that the applicant had filed an application for settlement admitting service tax liability of ₹ 2,35,52,071/- for the period 01.07.2010 to 30.09.2010, as against the demand of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce had been given. In its order dated 06.11.2013, the first respondent observed that the petitioner had not paid service tax, for the period August, 2008 to June, 2010, for various services rendered within the due dates; they had also not filed ST-3 returns in time; they had not even taken registration for works contract service, erection, commissioning and installation service, and mining service; the fact of providing various services, which rendered them liable for service tax, was not informed to the department; and non-registration, and non-payment of service tax, attracted penalty under the relevant legal provisions. The first respondent held that the petitioner was liable for penal action. However, as they had made a full and true disclosure of additional service tax liability and had co-operated during the proceedings before the Commission, the first respondent considered the petitioner eligible for partial immunity from penalty. In its order dated 14.11.2014, for the period October, 2010 to March, 2012, the first respondent (i.e. the Settlement Commission) observed that the petitioner had filed three applications covering three show-cause notices (1) SCN No.57/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by Sri Ch. Pushyam Kiran, Learned Counsel for the petitioner. Oral submissions were made, and written arguments filed on behalf of the respondents, by Sri Jalakam Satyaram, Learned Standing Counsel for Central Excise. Sri S. Ravi, Learned Senior Counsel appearing on behalf of the petitioner, would submit that the application dated 18-4-2013 seeking settlement of the case, arising out of Show-Cause Notice O.R. No. 69/2010 dated 23-8- 2011, for the period 01.08.2009 to 30.06.2010, was accepted by the Settlement Commission by its final order dated 6-11-2013 passed under Section 32F(5) of the Act; the settlement application dated 28.01.2013, seeking settlement of the case arising out of Show-Cause Notice O.R. No. 137/2011 dated 22-10-2011, for the period July, 2010 to September 2010, was accepted by the commission by its final order dated 30-10-2013 passed under Section 32F(5) of the Act; while disposing of these two applications, the Commission had recorded its finding that the Petitioner had made a full and true disclosure of their additional Service Tax liability, they had co-operated during the proceedings before the Commission, and the Commission considered them eligible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of particulars of liability before the Commission; the Commission has the powers of an assessing officer as declared under Section 32-I of the Act; the power to grant immunity is contained in Section 32K; the very application, under Section 32E(1) of the Act, pre-supposes suppression of facts before the assessing officer; and the only logical construction, that flows from the conspectus of these provisions, is that, prior to the amendment, it is only if the Commission had imposed penalty for concealment of particulars of duty before it, would the bar apply; an alternative construction could be that the pre-amended Section 32-O covered cases of concealment both before the Central Excise Officer and the Settlement Commission itself; in such an event, the consequences would be that this Court must hold the newly inserted Explanation to be a mere surplusage; if, on the other hand, the pre-amended Section 32-O contemplated penalty having been imposed only for concealment of particulars before the Central Excise Officer, the Explanation could be interpreted to be clarificatory in nature; such an interpretation, in the first instance, would mean that no subsequent application is maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory position, as is applicable to the proceedings, into consideration while deciding a matter before it; it is evident from the finding recorded by the Settlement Commission, in rejecting the Petitioner s third application, that it has implicitly taken into consideration the Explanation, inserted to Section 32-O(1)(i) in the year 2014, while passing the impugned order; the Commission had found that there was concealment of duty liability from the Central Excise Officer in the previous proceeding before it; the earlier cases were found fit only for partial immunity from penalty; and the Commission had imposed 1% of the tax liability, concealed from the Central Excise Officer, as penalty . Learned Standing Counsel would further submit that penalty was proposed to be imposed on the petitioner in first show cause notice which was challenged and decided by the Settlement Commission; in its order dated 06.11.2013, the Settlement Commission has explained and ordered accordingly; the order of the Settlement Commission clearly establishes suppression/ concealment from the Central Excise Officer by the applicant/ petitioner; and no useful purpose would be served in remanding the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2015. In this context, it is necessary to note that the third show-cause notice, in O.R.No.97/2012 dated 24.04.2012, was issued to the petitioner more than a year and half prior to the order passed by the Settlement Commission on 06.11.2013 with respect to the show-cause notice in O.R.No.69/2010 dated 23.08.2011, and on 30.10.2013 in respect of the show-cause notice in O.R.No.137/2011 dated 22.10.2011. It is not in dispute that the petitioner had filed the third application before the Settlement Commission on 25.11.2013 more than a year and half after receipt of the show-cause notice in O.R.No.97/2012 dated 24.04.2012. Even if the third application had been submitted just one month earlier i.e. at any time before the final order was passed by the Settlement Commission on the first of the earlier two show-cause notices on 30.10.2013, the bar under Section 32-O(1)(i) of the Act would, even according to the revenue, not have been attracted. It is only because the petitioner filed the third application before the Settlement Commission on 25.11.2013, with respect to the show-cause notice in O.R.No.97/2012 dated 24.04.2012, after the Settlement Commission had passed final Orders, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication under Section 32E for settlement, on the ground of concealment of particulars of his duty liability; then, he shall not be entitled to apply for settlement under Section 32-E in relation to any other matter . By Section 101 of Finance Act No.2 of 2014, effective from 06.08.2014, the following Explanation was inserted to Section 32-O(1)(i) of the Act: In this clause, the concealment of particulars of duty liability relates to any such concealment made from the Central Excise Officer. Section 32-O(1)(i) of the Act, after its amendment with effect from 06.08.2014, reads as follows: Where an order of settlement passed under sub-section (7) of section 32F, as it stood immediately before the commencement of section 122 of the Finance Act, 2007 (22 of 2007) or sub- section 5 of section 32F, provides for the imposition of a penalty on the person who made the application under Section 32E for settlement, on the ground of concealment of particulars of his duty liability; then, he shall not be entitled to apply for settlement under Section 32-E in relation to any other matter. Explanation : In this clause, the concealment of particulars of duty liability relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation, it appears that it has widened the scope of the main section, effect should be given to the legislative intent notwithstanding the fact that the legislature named that provision as an Explanation. Courts have to find out the true legislative intent, as the legislature has different ways of expressing itself. The words used alone are the repository of legislative intent and, if necessary, an Explanation may be construed according to its plain language and not on any a priori consideration . ( Aphali Pharmaceuticals Ltd. (1989) 4 SCC 378; United Motors (India) Ltd. AIR 1953 SC 252; Hiralal Ratanlal v. State of U.P. (1973) 1 SCC 216 ; D.G. Mahajan v. State of Maharashtra AIR 1977 SC 915; S. Sundaram Pillai (1985) 1 SCC 591. Mere description of a certain provision as an Explanation is not decisive of its true meaning. Ultimately it is the intention of legislature which is paramount, and mere use of a label cannot control or deflect such an intention. The interpretation must obviously depend upon the words used therein, but it must be borne in mind that when the provision is capable of two interpretations, that should be adopted which fits the description. ( Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Andhra Pradesh AIR 1958 SC 468). On a conjoint reading of Section 32-O(1)(i) of the Act, and the Explanation thereto, it is clear that, if penalty is imposed on the applicant by an order passed by the Settlement Commission under Section 32-F(5) of the Act for concealment of particulars of their duty liability from the Central Excise Officer, the applicant is thereafter not entitled to apply for settlement under Section 32-E in relation to any other matter. The petitioner herein was imposed penalty of ₹ 2,35,000/- and ₹ 19,00,000/- by the order of the Settlement Commission dated 30.10.2013 and 06.11.2013 respectively for concealment of duty liability from the Central Excise Officer. If the Explanation to Section 32-(O)(1)(i) of Act is held to apply retrospectively, the Settlement Commission must then be held to be justified in passing the impugned order dated 14.11.2014 rejecting the petitioner s application for settlement dated 25.11.2013. II. DOES THE EXPLANATION TO SECTION 32-O(1)(i) OF THE ACT OPERATE PROSPECTIVELY OR RETROSPECTIVELY? The fact, however, remains that both the events firstly of a show cause notice being issued to the petitioner on 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions in the grant. ( Government of A.P. v. P.Laxmi Devi (2008) 4 SCC 720; Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the City of Ahmedabad 1999(4) SCC 468 ; Vijay Prakash D. Mehta v. Collector of Customs (1988) 4 SCC 402 ; Anant Mills Ltd. v. State of Gujarat (1975) 2 SCC 175). It is necessary, therefore, to examine the nature of this right in the light of the relevant statutory provisions. Section 32E, in Chapter-V of the Act, refers to the application for settlement of cases and, under sub-section (1) thereof, an assessee may, in respect of a case relating to him, make an application, before adjudication, to the Settlement Commission to have the case settled, in such form and in such manner as may be prescribed and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, in its application to the Settlement Commission regarding their duty liability, must not have been disclosed earlier before the Central Excise Officer having jurisdiction; (f) the applicant should disclose to the Settlement Commission the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by them, and such other particulars as may be prescribed including particulars of excisable goods in respect of which the assessee admits short levy on account of misclassification, under-valuation and inapplicability of exemption notification; and (g) any such application shall be disposed of by the Settlement Commission in the manner provided in Chapter-V. In addition to the restriction placed by the first proviso, of making an application to the Settlement Commission only after receipt of a show-cause notice from the Central Excise Officer for recovery of duty, additional restrictions are placed thereby on the applicant invoking the jurisdiction of the Settlement Commission i.e., (1) the applicant should have filed returns showing the particulars stipulated under clause (a) of the proviso. Even a person, who has filed retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke into consideration the allegations in the show-cause notice, and the submission of the Revenue in this regard. IV. THE RIGHT TO INVOKE THE JURISDICTION OF THE SETTLEMENT COMMISSION IS GOVERNED BY THE LAW IN FORCE WHEN THE SETTLEMENT PROCEEDINGS COULD HAVE BEEN INSTITUTED: The statutory right to make an application to the Settlement Commission, like a right of appeal, vests in an applicant at the time the original proceedings could have been instituted i.e., soon after a show cause notice for recovery of duty, issued by the Central Excise Officer, is received by them. Just as depriving a suitor in a pending action, of an appeal to a superior tribunal which belonged to him as of right, is a very different thing from regulating procedure, ( Nahar Industrial Enterprises Ltd. v. Hong Kong Shanghai Banking Corpn. (2009) 8 SCC 646 ; Colonial Sugar Refining Company v. Irving (1905) AC 369 (PC)), the right conferred on an applicant to make an application for settlement is a substantive statutory right and is not a mere matter of procedure. Again like the right of appeal, which accrues to the litigant and exists as on and from the date the lis commences although it may be ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion itself, would not be affected by a subsequent amendment. This substantive right is governed by the law prevailing at the time of commencement of the proceedings. ( Garikapatti Veeraya 30; Kasibai 33). The submission of Sri Jalakam Satyaram, Learned Standing Counsel for Central Excise, that, as the Explanation to Section 32-(O)(1)(i) was inserted with effect from 06.08.2014 during pendency of settlement proceedings, the subsequent decision of the Settlement Commission on 14.11.2014 is governed by the said Explanation, therefore, necessitates rejection. VI. STATUTORY PROVISIONS WHICH CONFER A RIGHT AND PROVIDE A REMEDY OF SETTLEMENT SHOULD BE GIVEN A LIBERAL CONSTRUCTION: Chapter-V of the Act places emphasis on settlement of cases as, unlike adjudication which is lengthy and cumbersome, a settlement brings about a finality to the entire dispute. The provisions of Chapter-V are attracted only when an assessee desires to avail the option of a settlement. The scheme of Chapter-V of the Act is for the Settlement Commission to exercise complete jurisdiction over the case after it is admitted till it is finally settled. The proceedings before the Commission lead to an expedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collusion, (c) any wilful mis-statement, (d) suppression of facts, (e) contravention of any of the provisions of the Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show-cause why he should not pay the amount specified in the notice along with interest payable thereon under Section 11-AA, and a penalty equivalent to the duty specified in the notice. Section 11-A(5) stipulates that where, during the course of any audit, investigation or verification, it is found that any duty has not been levied or paid or has been short-levied or short-paid for the reasons mentioned in clauses (a) to (e) of sub-section (4), but the details relating to the transactions are available in the specified record, then, in such cases, the Central Excise Officer shall, within a period of five years from the relevant date, serve a notice on the person, chargeable with the duty, requiring him to show-cause why he should not pay the amount specified in the notice along with interest under Section 11AA and penalty equivalent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnish their reports. Section 32F(4) stipulates that, where such a report has been furnished to it, the Settlement Commission may, after examination of such report and if it is of the opinion that any further enquiry or investigation in the matter is necessary, direct the Commissioner (Investigation) to make such further enquiry or investigation, and furnish a report on matters covered by the application, and any other matter relating to the case. Section 32F(5) enables the Settlement Commission, after examination of the records, the report under sub-section (3), the reports under sub-section (4), and after giving an opportunity of being heard to the applicant and to the Principal Commissioner or the Commissioner of Central Excise having jurisdiction, and after examining such further evidence as may be placed before it or obtained by it, to pass such orders as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the reports under Sub-Section (3) or Sub-Section (4) of Section 32F. Wide powers are conferred on the Settlement Commission under Chapter V of the Act. Section 32G(1) confers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not come into force . Section 32K(2) stipulates that the immunity granted to a person under Section 32-K(1) shall stand withdrawn if such person fails to pay the sum specified in the order, or fails to comply with any other condition subject to which immunity has been granted, and thereupon the provisions of the Central Excise Act shall apply as if such immunity has not been granted. Section 32K(3) confers power on the Settlement Commissioner to withdraw the immunity granted under Section 32K(1) if it is satisfied that such person had, in the course of the settlement proceedings, concealed any particulars material to the settlement, or had given false evidence; and, thereupon, such person may be tried for the offence with respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement. He shall also become liable for imposition of any penalty under the Act to which such person would have been liable had no such immunity been granted. Section 32L(1) confers power on the Settlement Commission, if it is of the opinion that any person who made an application for settlement under Section 32E has not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make it amply clear that Section 32-K(1) is curative and declaratory in nature, and has retrospective application. IX. TWO DIFFERENT EXPRESSIONS IN A STATUTE MUST BE CONSTRUED TO CARRY DIFFERENT MEANINGS: As Parliament has used two different expressions in the Explanation to two distinct provisions, this Court cannot presume the effect of both the Explanations to be the same. If both the Explanations were meant to have the same effect, and to have retrospective application, it was unnecessary for Parliament to use two different expressions in the Explanations to Section 32-K(1) and Section 32-O(1)(i) of the Act, as use of the same words would have sufficed. When two different expressions are used by the same statute, one has to construe these different expressions as carrying different meanings. ( Kailash Nath Agarwal v. Pradeshiya Industrial Investment Corpn. of U.P. Ltd., (2003) 4 SCC 305). Different use of expressions in two provisions of a statute is for a purpose for, otherwise, the same expression would have been used. ( B.R. Enterprises v. State of U.P., (1999) 9 SCC 700 = AIR 1999 SC 1867). It would be difficult to maintain that, when two expressions of differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cealment of particulars of duty liability before the Central Excise Officer. XI. COURTS CANNOT MAKE UP DEFICIENCIES IN THE ACT AS A RESULT OF DEFECTIVE PHRASING : As it is clear that the Explanation to Section 32-O(1)(i) does not have retrospective effect, Section 32-O(1)(i), as it stood prior to 06.08.2014, could mean imposition of penalty on the applicant on the ground of concealment of particulars of duty liability only before the Settlement Commission or concealment of duty liability either before the Settlement Commissioner or before the Central Excise Officer. The effect of Section 32-O(1)(i) is that, once penalty is imposed on the applicant on the ground of concealment of particulars of duty liability, then every subsequent application for settlement is barred, and the applicant is not entitled to avail the statutory remedy of a settlement, by moving an application before the Settlement Commission thereafter. As noted hereinabove, Section 32E(1) of the Act enables an application to be made to the Settlement Commission only in cases where the assessee has not disclosed its duty liability to the Central Excise Officer. The said provision however requires the applicant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant immunity only if the assessee has co-operated with the Settlement Commission and has made a full and true disclosure of their duty liability, Section 32-K(3) confers power on the Settlement Commission to withdraw immunity to an assessee who had concealed material particulars before it. Section 32(L)(i) confers power on the Settlement Commission to send the case back to the Central Excise Officer if the applicant has not co-operated in the proceedings before it. Other than Section 32-O(1)(i), there is no other provision in Chapter V of the Act which confers power on the Settlement Commission to reject a subsequent application for settlement when penalty has been imposed on the applicant in an earlier application for concealment of particulars of duty liability before it. While Section 32-(O)(1)(i) of the Act is not free from ambiguity, it must be borne in mind that the task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. Language is, at best, an imperfect instrument for the expression of human intention. One should not make a fortress out of the dictionary but remember that statutes always have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n merits. XIII. EXPLANATION TO SECTION 32-O(1)(I) CANNOT BE CONSTRUED AS MERE SURPLUSSAGE : If, as is now contended before us by Sri Jalakam Satyaram, Learned Standing Counsel for Central Excise, that the intention of the legislature was to bar the jurisdiction of the Settlement Commission being invoked again on a penalty being imposed earlier by the Commission for concealment of duty liability before the Central Excise Officer, insertion of the Explanation to Section 32-O(1)(i) was unnecessary, and must be held to be a mere surplussage for, even without the Explanation, Section 32-O(1)(i) should be held to have conveyed the same meaning. Courts have adhered to the principle that effort should be made to give meaning to each and every word used by the legislature, and it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage if they can have a proper application in circumstances conceivable within the contemplation of the statute. ( Gurudevdatta VKSSS Maryadit v. State of Maharashtra 2001 (4) SCC 534; Manohar Lal v. Vinesh Anand (2001) 5 SCC 407; Aswini Kumar Ghose v. Arabhinda Bose 1953 SCR 1 = AIR 1952 SC 369). A cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of doubt or dispute, a construction should be made in favour of the taxpayer and against the Revenue. ( Manish Maheshwari v. CIT (2007) 3 SCC 794 ; J. Srinivasa Rao v. Govt. of A.P. (2006) 12 SCC 607 ). If a provision of a taxing statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee, should be accepted, ( I.T. Commissioner, W.B. v. N.H. Tea Co. AIR 1973 SC 2524), and against the Revenue. ( Sneh Enterprises v. Commr. of Customs (2006) 7 SCC 714; Manish Maheshwari (2007) 3 SCC 794). In this context it is necessary to note that Section 194-C of the Income Tax Act was amended by the Finance Act, 1995 with effect from 1/07/1995. Explanation III, which was inserted thereto, stipulated that, for the purposes of the said Section, the expression work shall also include (c) carriage of goods and passengers by any mode of transport other than by railways. In Birla Cement Works v. Central Board of Direct Taxes AIR 2001 SC 1080, the Supreme Court held that, from 01.07.1995, Section 194-C of the Income Tax Act was applicable to transport contracts as well; the question, however, was whether the explanation was only clarific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoking the jurisdiction of the Court, is so inordinate as to necessitate an inference that the petitioner has abandoned their claim to the relief sought for. ( U.P. Pollution Control Board v. Kanoria Industrial Ltd. (2001) 2 SCC 549). It is not even the case of the Revenue that third party rights have intervened in the interregnum. As the petitioner has invoked the jurisdiction of this Court, just a little more than a year after the impugned order was passed, we are satisfied that the delay is not so inordinate as to necessitate dismissal of the Writ Petition or to deny the petitioner the relief sought for. This contention, urged on behalf of the Revenue, must also fail. XVI. CONCLUSION : Viewed from any angle, the Settlement Commission has erred in rejecting the petitioner s application for settlement dated 25.11.2013, by its order dated 14.11.2014, on the ground that the said application was barred by Section 32-(O)(1)(i) of the Act. As noted hereinabove the Explanation to Section 32-O(1)(i) does not have retrospective effect and, consequently, the petitioner s application dated 25.11.2013 would be barred under Section 32-(O)(1)(i) of the Act only if either of the two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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