9911796707
TMI Blog2020 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... under the head 'List of goods taxable at the rate of 20% at the point of first sale'. With effect from 01.04.2017, these commodities were brought under Entries 2 and 3 of the 6th schedule under the head 'List of goods taxable at the rate of 35% at the point of first sale'. In line with the provisions of Section 75(1) of the PVAT Act that grants power to the Government to alter the rate of tax by amendment to the schedules, Notification dated 31.03.2017 was issued under G.O.Ms.No.20/A1/CD/2017 dated 31.03.2017 and the schedule rate of tax for Petrol and Diesel was raised to 35% at the point of first sale from 01.04.2017. A Bill was introduced and passed in the Legislative Assembly to give effect to the amendments made to the Schedule. 4. On 10.04.2020, vide G.O.Ms.No.17 dated 07.04.2020, the rates of tax upon Petrol and Diesel were reduced to 22.15% and 18.5% respectively. This amendment was made invoking Section 31 of the PVAT Act which confer powers on the Government to, by Notification, reduce the rate of tax on commodities covered by the PVAT Act. Thereafter, the Government decided, at a meeting held on 18.05.2020, to increase the rate of tax as follows in the regions of Puduch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the Government to notify reductions in the rate of tax and the latter, power upon the Government to alter, add to, or cancel any of the schedules to the Act. 8. To appreciate the rival contentions advanced, one would have to note and appreciate the purpose and scope of the two statutory provisions involved. Section 31 of the PVAT Act which mimics Section 30 of the Tamil Nadu Value Added Tax Act, 2006 (in short 'TNVAT Act') and Section 17 of the erstwhile Tamil Nadu General Sales Tax Act, 1959 (in short 'TNGST Act') is a provision for grant of exemption from tax or reduction in rate of tax, by Notification, for the benefit of a specified class of assesses or transactions. I extract below all three of the provisions aforesaid to illustrate the similarity in structure as well as intent. TNGST Section 17 Power of Government to notify exemptions and reductions of tax. - (1) The Government may, by notification, [issued whether prospectively or retrospectively,] make an exemption, or reduction in rate, in respect of any tax payable under this Act - (i) on the sale or purchase of any specified goods or class of goods, at all points or at a specified point or points in the series o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the benefit of exemption or reduction or reduced rate of tax to a specified class of transactions or class of assessees upon their satisfying conditions that are to be stipulated in the Notification itself. It is only upon satisfaction of the conditions that the specified assessee or class of transaction will be entitled to exemption or reduced rate of tax and if the conditions were not complied with, then that assessee or transaction would be visited with the regular rate of tax, applicable in general to all assessees and transactions involving that specific commodity. 11. The provisions of Section 86 of the TNVAT Act and 59 of the TNGST Act correspond to the object and purpose contained in Section 75 of the PVAT Act and provide for a wholesale change/alteration in the rate of tax by amendment of Schedule. All three provisions are extracted below: TNGST Section 59. Power to amend Schedules:- (1) The government may, by notification, alter, add to or cancel any of the Schedules. TNVAT 86. Power to amend Schedules-- (1) The Government may, by notification, alter, add to or cancel any of the Schedules. (2) Where a notification has been issued under sub-section (1) there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect: Provided that if the notification under sub-section (1) is issued when the Legislative Assembly is in session, every endeavour shall be made to introduce such a Bill in the Legislative Assembly during that session: Provided also that where for any reason a Bill as aforesaid does not become law within six months from the date of its introduction in the Legislative Assembly, the notification shall cease to have effect on the expiration of the said period of six months except as respect things done or omitted to be done before the notification so ceases to have effect. (3) All references made in this Act to any of the Schedules shall be construed as relating to the Schedules for the time being amended in exercise of the powers conferred by this section. 12. An amendment to the Schedule would thus apply across the board and impact all assessees and transactions involving the specified commodity. This is the distinction in application between the two sets of provisions. 13. A Division Bench of this Court in State of Tamil Nadu V. Kannapiran Steel Re-rolling Mills (112 STC 161) had occasion to consider the question as to whether an exemption granted by way of Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther powers enabling in this behalf and in supersession of the notification issued vide G.O.Ms.No.17, dated 17th April, 2020 of the Commercial Taxes Secretariat, Government of Puducherry and published in the Gazette of Puducherry, Extraordinary, Part-II, No.14, dated 7th April, 2020, save as respect things done or omitted to be done before such supersession, the Lieutenant-Governor, Puducherry being satisfied that it is necessary so to do in the public interest, is pleased to levy the rate of tax payable in respect of petrol and diesel under the said Act as mentioned below: Regions Petrol Diesel Puducherry and Karaikal 28.00% 21.80% Mahe 23.90% 18.15% Yanam 25.70% 20.00% 2. This notification shall come into force with effect from the 29th day of May, 2020. 3. The rate of tax mentioned above is valid for a period of three months from the date of effect of this notification. (By order of the Lieutenant-Governor) SHURBIR SINGH, I.A.S., Secretary to Government (Finance) 15. The rates of tax on petrol and diesel have been altered across the board and ostensibly, 'in public interest'. The notification does not refer to or address a specific class of assesses/t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent shall be made retrospectively if it would have the effect of prejudicially affecting the interests of a dealer. (2) The Commissioner may, on the recommendation of the Ministry of External Affairs, Government of India, if he is of opinion that it is expedient in the interest of general public so to do, by a notification in the Official Gazette, add to, or omit from, or otherwise amend, the Sixth Schedule." I I. G ujarat Value Added Tax Act, 2003 5. (1) The sales and purchases of the goods specified in Schedule I shall be exempt from tax subject to the conditions and exceptions set out therein against each of them in column 3 of that Schedule. (1A) The State Government may, by notification in the Official Gazette, add to, or enlarge, any entry in Schedule I, or relax or omit any conditions or exceptions specified therein, and thereupon the said Schedule shall be deemed to be amended accordingly. (2) (a) Subject to such conditions as it may impose, the State Government may, if it considers necessary so to do in the public interest, by notification in the Official Gazette, exempt any specified class of sales or purchases or sales or purchases of goods by any specified dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise amend or modify any Schedule, prospectively or retrospectively, and thereupon the Schedule shall be deemed to have been amended accordingly. Provided that the Government shall not very the rate of tax so as to enhance it, in any case, exceeding forty paise in a rupee." 106. Power of Government to make rules: (1) The Government may, subject to the condition of previous publication, make rules, by notification, for carrying out the purposes of this Act; Provided that if the Government is satisfied that circumstances exist which render it necessary for it to take immediate action, if any, it may make any rules without such previous publications; Provided further that any rule under this Act may be made so as to have retrospective effect. ...... (4) The Government shall cause every rule made under this Act and every notification issued under this Act to be laid, as soon as may be after it is published before the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions in which it is so laid or the sessions immediately following, and if the State Legislature agrees in making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax; (b) provide for reducing or enhancing the rates of tax or for specifying the rates of tax where NIL rates are specified, and thereupon the Schedule shall stand amended for the purposes of this Act: 1[* * *] 2[***] (2) The provisions contained insub-section (6)of section 83 regarding rules made by the State Government shall apply mutatis mutandis to any notification issued under sub-section (1) as they apply to the rules made by the State Government." 83. Power to make rules :- (1) The power to make rules under this Act shall be exercisable by the State Government, by notification in the Official Gazette. ...... (6) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made and notify such decision in the Official Gazette, the rule shall, from the date of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
