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TMI Blog2024 (5) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Tribunal is right in Law in holding that provisions of Section 5 of the Act can only be invoked by the Petrol Taxation Officer when he is not satisfied with the correctness and completeness of the return filed by a dealer pursuant to Rule-15? 2. Whether on the facts and circumstances of the case the Tribunal is right in law in holding that the Act and the Rules do not contain any specific provision for taking action by the Petrol Taxation Officer in the cases of escaped assessments? 3. Whether on the facts and circumstances of the case the Tribunal is right in Law in holding that the Act and the Rules provide only for filing of monthly returns and therefore assessments are only required to be made month-wise and any annual assessment made shall not be deemed to be an assessment under the Act/ Rules?" Factual matrix: 03. The respondent/appellant dealer deals in petroleum and lubricants throughout the country and has its bulk depot at rail road railway station, Jammu. The respondent has been assessed to Tax by Petrol Taxation Officer, hereinafter for short as PTO, for the year 1989-1990 in terms of order dated 03.12.1993, under section 5 of Jammu and Kashmir Motor Spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-receipt of monthly returns, therefore only monthly assessments are provided /prescribed under the Act/Rules. Submissions made by learned Advocate General on behalf of Commissioner Tax, Jammu. 08. Mr D.C. Raina, Learned Advocate General, has stated that the GST and the Act of 2005 though are two independent Acts yet are integral to each other. The reassessment cannot be reopened under Section 5 of the Act of 2005, but the conjoint reading of Section 7 (11) of GST and Section 5 of Act of 2005, PTO to take action in cases of escaped assessments. Learned Advocate General further submits that PTO after assessment in terms of Section 5 of Act of 2005 doesn't become functus officio and is not denuded of his powers for reassessment under Section 7 (11) of GST for escaped assessments. In support of his submissions, the learned Advocate General referred to and relied upon various sections of GST Act 1962 like Section 2, "2 (g) 2l, Section 4 Section 7 (11), Section 12 d and the provisions of Act of 2005 like Section 2, 5, 22, 23, Rule 15 and 16 etc. Learned Advocate General has further relied upon the Judgment passed by this court in case titled Alson Motors through Mubeen Shah v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962 Preamble -An Act to provide for the levy of a general tax on the sale [or purchase] of goods in the sate and for other matters connected therewith. Section 2[(g) "Dealer" means any person who carries on (whether regularly or otherwise) the [business of selling, purchasing], supplying or distributing goods, directly or indirectly, for cash or for deferred 1 inserted by Act XIII of 1978 2 sub-clause (iv) added by Act No. XXV of 1972 3 substituted by Act XIII of 1978 4 substituted by Act XX of 1981. 3 payment, or for Commission, remuneration, or other valuable consideration and includes, - (i) a factor, broker, commission agent, delcredere agent, or any other mercantile agent, by whatever name called and whether of the same description as hereinbefore mentioned or not, who carries on the business of selling, [purchasing], supplying or distributing goods belonging to any principal whether disclosed or not; (ii) (ii) Notwithstanding any condition to the contrary contained in the agreement with the principal, an auctioneer who carries on the business of selling, [purchasing] or auctioning goods belonging to any principal, whether disclosed or not or whether the offer of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. [(14) (a) No order of assessment under sub-sections (6), (8), (9) and (10) of this section shall be made after the expiry of four years from the end of the 3 (year) or after expiry of one year from the end of the year in which the return or revised return under sub-section (1), (3) or (4) of this section is filed, whichever is later; (b) no order of assessment or re-assessment under sub-section (11) of this section shall be made after the expiry of eight years from the end of the year or one year from the end of the year in which the notice is served, whichever is later; (15) Notwithstanding anything contained in sub-section (14) of this section an order of fresh assessment in pursuance of an order under section 11, 11-A or 12, or an order of Court may be made before the expiry of 2 years from the end of the financial year in which such order is passed. (16) Where the assessment or re-assessment proceedings are stayed under the order of any Court or other competent authority for any period, such period shall be excluded in computing the period of limitation for such assessment or re-assessment specified in sub-section (14), (15) or any other provisions of this Act.] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) where some of the returns for a year have not been filed or no return has been filed for such year, the amount of tax due under this Act, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act or 20% of the amount of tax assessed, whichever is higher, has been paid; or c) in case the appeal is against the imposition of penalty, 5% of the penalty levied has been paid;] [Provided that the Appellate Authority may, for reasons to be recorded in writing, stay the recovery of the [demand disputed in appeal]. However, the stay will not cover the amount of tax and penalty payable under clauses (a), (b) and (c) of the second proviso.] (2) The appellate authority 6 [or the Commissioner, as the case may be], may after giving the appellant reasonable opportunity of being heard: (a) Confirm, reduce, enhance or annul the assessment or penalty (b) set aside the order and direct the assessing authority to pass a fresh order after such further enquiry as may be directed. (3) if the amount of assessment or penalty is reduced by the appellate authority [or the Commissioner, as the case may be under clause (a) of sub secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o forfeiture of any sum or which effects the recovery from any person of any amount under section 12-A that person or the Commissioner, Sales Tax having jurisdiction over the whole of the State may by application in writing (accompanied where the application is made by that person by a fee of five hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, it shall as soon as may be not later than ninety days from the receipt of such application draw up a statement of the case and refer it to the High Court : Provided that the Tribunal may, if it is satisfied that the dealer or the Commissioner was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days: Provided further that, if in exercise of its power under this sub-section, the Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises that person or the Commissioner may within ninety days of such refusal, either withdraw his application and if he does so any fee paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve proof both as to the amount of the tax or penalty which is due and as to the person from whom it is due." "RULE 15: a) A dealer shall furnish a return of sale of goods in form P-4 for every month to the Petrol Taxation Officer on or before 21st day of next following month. b) The tax payable on the sales made in a month shall be paid in the Treasury against the challan in Form P-5 within fifteen days from the expiry of the said month. 4th foil of the receipted challan or any other proof for having made the payment shall be attached to the monthly return. c) The dealer may deposit the tax by a crossed cheque/ crossed bank draft alongwith a challan in Form P-5 duly filed in and signed by him in the office of Chief Petrol Taxation Officer who shall issue provisional receipt in Form P-6. The cheque/ bank draft shall soon thereafter be deposited in the Treasury. The 3rd and 4th foils of the receipted challan obtained from the Treasury shall be delivered to the dealer, and the provisional receipt issued earlier shall be surrendered by him and cancelled by the said authority under his signatures. d) On receipt of the return the Petrol Taxation Officer may examine the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not flow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i.e., the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it is for the legislature to do the needful in the matter." 12. In the case of Bank of Chettinad Ltd. v. Commissioner of Income-tax, Madras, the Privy Council quoted with approval the following passage from the opinion of Lord Russel of Killowen in Inland Revenue Commissioners v. Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case." As Lord Cairns said many years ago in Partington v. The Attorney General (1):-"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, however apparently within the spirit of the law the case might otherwise appear to be." 28. The passage was quoted with approval by the Privy Council in the Bank of Chettinad v. Income Tax Commissioner (1) and the Privy Council registered its protest against the suggestion that in revenue cases "the substance of the matter" may be regarded as distinguished from the strict legal position. (See also F. L. Smidth & Co. v. F. Greenwood [VIII T.C. 193, 206]). 29. It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess and return and the dealer having paid the amount of tax on any other sum payable under the Act, he shall issue a certificate in form P-7. The conjoint reading of Section 5 and Rule 15 of the Act of 2005 clearly specifies that section 5 will be made applicable only if the return filed by an assessee before the PTO is held not to be complete and correct. PTO can exercise his powers under section 5, read with rule 15-D. Section 5 will not be invoked in cases where complete and correct return is filed and P-7 is issued pursuant to Rule 15. This question has been answered in affirmation. 2. Whether on facts and circumstances of the case, the tribunal is right in law in holding that the act and the rules do not contain any specific provision for taking action by the Petrol Taxation Officer in the cases of escaped assessments? 17. Admittedly, there is no specific provision for taking action by PTO in cases of Escaped assessments, whereas under section 7 (11) of the GST, there is a clear provision for reassessment, if the assessing authority has reasons to believe that by reasons of omission or failure on the part of a dealer to make a return under sub section (1) or sub section (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means that when there is a conflict between a general and a special provision, the latter shall prevail. The said principle has been stated in Cries on Statute Law, 5th Edn., at P. 205, thus : "The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply." 13. But this rule of construction is not of universal application. It is subject to the condition that there is nothing in the general provision, expressed or implied, indicating an intention to the contrary. When the words of a section are clear, but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in Heydon's case (1584) 3 Rep. 7, yield better results : "To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act; to consider, according to Lord Coke : (1) What was the law before the Act was passed; (2) What was the mischi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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