Gauhati High Court
Kumar Iron And Steel Pvt. Ltd. vs Commissioner Of Taxes And Ors. on 11 May, 1994
Equivalent citations: [1994]95STC298(GAUHATI)
JUDGMENT D.N. Baruah, J.
1. The above civil rules involve common questions of law and fact. I, therefore, propose to dispose of all these civil rules by a common judgment.
2. The petitioner-company has filed the above civil rules against annexure V, common, order dated April 23, 1988, passed by the 1st respondent, the Commissioner of Taxes, Assam, dismissing the revision petitions filed by the petitioner under Section 20(2) of the Assam Finance (Sales Tax) Act, 1956 (for short "the Act") against the annexure III, common order dated November 15, 1984, passed by the 2nd respondent--Assistant Commissioner of Taxes (Appeals), Guwahati and has also challenged the annexure VI notices dated May 31, 1988 passed by the 3rd respondent--Superintendent of Taxes, Unit-C, Guwahati, demanding tax with interest up to 31st May, 1988, from the petitioner-company.
3. The petitioner's case may briefly be stated as follows :
The petitioner is a private limited company. It carries on the business of manufacture and sale of M.S. rounds or steel, etc., in Assam. The company is a dealer under the Act. The petitioner-company also undertakes job works for conversion of billets into M.S. rounds on behalf of various customers in Assam. The petitioner as a dealer has been paying tax as required under the Act on its Overall turnover of iron and steel materials manufactured by it for sale in the State. For the period ending September 30, 1977 (in Civil Rule No. 1099 of 1988), March 31, 1988 (in Civil Rule No. 1100 of 1988), September 30, 1979 (in Civil Rule No. 1101 of 1988), March 31, 1981 (in Civil Rule No. 1102 of 1988), September 31, 1981 (in Civil Rule No. 1103 of 1988), March 31, 1982 (in Civil Rule No. 1104 of 1988) and September 30, 1982 (in Civil Rule No. 1105 of 1988), the petitioner submitted its returns of turnover showing details of sales and paid the admitted tax as per law. No tax was, however, paid on the sale proceeds of the surplus M.S. rounds received by the petitioner from its customers if the burning loss was less than 10 per cent. The 3rd respondent issued notices under Section 9(2) of the Act and in pursuance thereof the petitioner appeared before the 3rd respondent and produced its books of accounts in support of returns. The 3rd respondent examined the account and assessed the turnover of the petitioner. Later the 3rd respondent issued notices under Section 11 of the Act to include the value of the surplus M.S. rounds which was not earlier held to be taxable by him. The petitioner appeared and submitted objections. With regard to the sale proceeds of surplus M.S. rounds left with the petitioner by various owners who entrusted the petitioner to undertake the job of conversion of billets into M.S. rounds, the petitioner submitted that the said goods not being manufactured by the petitioner in Assam for sale, the sale price thereof was not liable to be. included in its turnover under the provisions of Section 2(9) read with Section 2(6) of the Act and, as such, not liable to tax. The 3rd respondent, however, rejected the contention of the petitioner by various :orders of assessment passed on different dates. The petitioner being aggrieved by and dissatisfied with the aforesaid orders of assessment preferred appeals before the 2nd respondent under Section 19(1.) of the Act. The petitioner also submitted petitions under the provisions of proviso to Section 19(1) of the Act for admission of the appeals without payment of the disputed demand and prayed for stay of realisation of the same till disposal of the appeals. For the period ending September 30, 1977, March 31, 1978, September 30, 1979, March 31, 1981, September 30, 1981 and March 31, 1982 the 2nd respondent rejected the prayer for stay and directed the petitioner to pay the total demand on account of tax and interest amounting to Rs. 10,438.15 for the period ending September 30, 1977, Rs. 12,899.66 for the period ending March 31, 1978 and Rs. 29,363,68 for the period ending September 30, 1979. For the period ending March 31, 1981, September 30, 1981 and March 31, 1982 the 2nd respondent directed the petitioner to deposit Rs. 11,500, Rs. 15,000 and Rs. 24,000 respectively over and above the amount the petitioner had already deposited. The petitioner paid the said amounts and thereafter the appeals were admitted. For the period ending September 30, 1982, the 2nd respondent stayed the demand and admitted the appeal. Against the order of the 2nd respondent for the period ending September 30, 1977, March 31, 1978 and September 30, 1979 the petitioner filed revision petitions before the 1st respondent. The 1st respondent by order dated February 21, 1984 allowed the revision petitions directing the 2nd respondent to admit the appeals and to stay the demand subject to payment of Rs. 1,500, Rs. 2,500 and Rs. 2,000 for the above period. After hearing the petitioner, the 2nd respondent disposed of all the appeals by annexure III, common order dated November 15, 1984, rejecting the appeals and upholding the decision of the 3rd respondent. The 2nd respondent also rejected the objection regarding the payment of interest raised by the petitioner's counsel. Being aggrieved, the petitioner filed revision petitions before the 1st respondent. The 1st respondent also by annexure V, common order dated April 23, 1988, dismissed the revision petitions. Thereafter, as a follow up action the 3rd respondent issued annexure VI notices dated May 31, 1988. Hence, the present petitions.
4. I have heard both sides.
5. Dr. A.K. Saraf, learned counsel for the petitioner, submitted that a dealer was liable to pay taxes on the aggregate sale price of taxable goods manufactured, made or processed by him in Assam, or brought by him into Assam from any place outside Assam for the purpose of sale in Assam. :Tax was not payable by a dealer on the value of all taxable goods sold by him. The learned counsel further submitted that admittedly the petitioner converted the billets supplied by different owners into M.S. rounds and such conversion was made by the petitioner solely on behalf of the owners and after conversion delivered the manufactured M.S. rounds to the owners. It was an admitted fact that during conversion of billets into M.S. rounds a portion of the billets were burnt out in the process of conversion. Burning loss during the process of conversion was estimated to 10 per cent and accordingly the petitioner as per the arrangement was required to return the manufactured goods less 10 per cent showing as burning loss. In some cases burning loss was even more than 10 per cent and in some other cases the burning loss was less than 10 per cent. Even if the burning loss was more than 10 per cent, under the arrangement the petitioner was liable to return 90 per cent of the manufactured M.S. rounds and in case the burning loss was less than 10 per cent, the excess of M.S. rounds beyond 90 per cent were to be retained and sold by the petitioner. The learned counsel further submitted that in the process of manufacture the petitioner was never the owner of the aforesaid billets. The entire process of manufacture was done solely on behalf of the owners and not on behalf of the petitioner. The petitioner was entitled to retain the aforesaid excess M.S. rounds only as per arrangement. Therefore, by no stretch of imagination the price fetched by selling the excess M.S. rounds could be said to be "sale price" within the meaning of Section 2(6) of the Act.
6. Mr. D.P. Chaliha, learned Government Advocate, on the other hand, supported the impugned actions of the respondents. He strenuously argued that the left out M.S. rounds were the property belonging to the petitioner as per the terms of their agreement and, therefore, while converting the billets into M.S. rounds, the manufacturing process was done by it on its own behalf and not on behalf of the customers. As such, the petitioner was liable to pay tax under the Act inasmuch as the sale proceeds of the excess M.S. rounds were to be included in the turnover and, therefore, the impugned actions of the respondents were just, proper and no interference was called for.
7. For the purpose of proper appreciation of the legal position it will be apposite to look to few of the definitions.
"Dealer" has been defined under Section 2(2) of the Act. As per the said definition, "dealer" means any person who carries on the business of selling taxable goods in Assam. Prior to December 15, 1977 the definition of "dealer" was somewhat different. It meant any person who used to sell taxable goods manufactured, made or processed by him in Assam, or brought by him into Assam from any place outside Assam for the purpose of sale in Assam.
"Sale price" has been defined under Sub-section (6) of Section 2 of the Act as follows :
"(6) 'Sale price' used in relation to a dealer means the amount of the money consideration for the sale of taxable goods manufactured, made or processed by him in Assam, or brought by him into Assam from any place outside Assam for the purpose of sale in Assam, less any sum allowed as cash -discount according to the trade practice, but includes any sum charged for containers or other materials for the packing of such taxable goods ;"
"Taxable goods" has been defined in Section 2(8). As per the said definition it means such goods as are specified in the Schedule attached to the Act.
Section 3 of the Act imposes liability to pay tax by every dealer in taxable goods on his turnover at the rates specified in column 3 of the Schedule attached to the Act. Tax under the said section shall be payable at the stage of first sale of the taxable goods in Assam.
If we look to the definition we find that the liability to pay tax under the Act is dependent on the turnover of a dealer. "Turnover" as per definition given in the Act means aggregate of the sale prices or part of sale prices receivable by a dealer during such period.
8. From the reading of the above definitions it is abundantly clear that sale price is the amount of money consideration for the sale of taxable goods manufactured, made or processed by him in Assam, or brought by him into Assam from any place outside Assam for sale in Assam. Unless the taxable goods are manufactured, made or processed in Assam or brought by a dealer into Assam for sale, the amount of money consideration for sale of such goods cannot be said to be "sale price" as per the definition given in Section 2(6). If there is no sale price within the meaning of Section 2(6), it cannot be included within the expression of "turnover" as defined in Section 2(9) of the Act and a dealer is liable to pay tax on his turnover.
9. The general rule is that a taxing statute should be construed strictly as a person should not be taxed unless the words of the statute unambiguously impose the tax on him. A person cannot be taxed by expanding the meaning of the expression used in the statute. The provisions of taxing Acts are to be construed with strictness and no payment is to be exacted from a person which is not clearly and unequivocally required by an Act of the Parliament. It has been well recognised by Indian courts that in revenue cases regard must be had to the substance of the transaction rather than to its mere form.
10. In Union of India v. Commercial Tax Officer reported in [1956] 7 STC 113 ; AIR 1956 SC 202, the Supreme Court considered the question as to whether certain sales of goods to the Government of India, Ministry of Industry and Supplies, were exempt from sales tax under Section 5(2) of the Bengal Finance (Sales Tax) Act, 1941. The said section exempt sales to Indian Stores Department, the Supply Department of the Government of India and railway or water transport administration. The High Court held that the Department of Industries and Supplies was not the same as Indian Stores Department or the Supply Department of the Government of India and held that the sales were not exempt. The High Court observed that the said Department of Industries and Supplies was not the same as the Indian Stores Department or the Supply Department of the Government of India. Therefore, it was held that the sales were not exempt. It was contended before the Supreme Court that the real object of the sub-section was to give exemption not to particular departments but to the sales of such goods to any department of the Government of India. The Supreme Court while rejecting the contention held that according to the section the exemption was given to all sales made to those two departments, no matter whether the sales were only of the kind of goods which used to be sold to them at the date of the Act or other kinds of goods. The interpretation involved the addition of qualifying words to the section which ordinarily was not permissible for the court to do. To extend the benefit of statutory exemption of the sales made to the newly created department of Industries and Supplies, of goods not required for war purposes but for meeting international obligations would necessarily widen the scope of the exemption and would impose greater loss of revenue on the State of Bengal than what the Act, by its language intended to do. In the said case the Supreme Court observed that the exemption was a creation of the statute and must be strictly construed and could not be extended to sales to other departments. The Supreme Court further observed that the fact that the. section was not amended until 1949, by withdrawing the exemption, did not at all indicate that the Bengal Legislature intended to extend the benefit.
11. Again in Fernandez v. State of Kerala [1957] 8 STC 561 ; AIR 1957 SC 657, the Supreme Court observed thus :
"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 the spirit of the statute or the substance of the law. If the Revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter."
12. In Tarulata Shyam v. Commissioner of Income-tax, West Bengal, reported in [1977] 108 ITR 345 ; (1977) 3 SCC 305 the Supreme Court held :
"35. To us, there appears no justification to depart from the normal rule of construction according to which the intention of the Legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt, J., in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 KB 64 (KB) at page 71, that 'in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no 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'.
Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be."
13. In Commissioner of Income-tax v. Cellulose Products of India Ltd. reported in [1991] 192 ITR 155 ; (1991) 4 SCC 467 the Supreme Court while considering a taxing statute observed that liberal construction to effectuate the object of the provisions may be resorted to only in cases of genuine doubts or possibility of forming two alternative opinions. It is only when there is a genuine doubt about the interpretation of a fiscal statute or where two opinions are capable of being formed that the rule of liberal interpretation to effectuate the object of the provision may be taken recourse to.
14. Again in Mahadeo Prasad Rais v. Income-tax Officer, "A" Ward, Gorakhpur, reported in [1991] 192 ITR 402 ; (1991) 4 SCC 560 the Supreme Court observed that where literal construction creates anomaly, absurdity and discrimination, only then statute should be liberally construed even slightly straining the language so as to avoid anomaly.
15. Again in Commissioner of Income-tax, Orissa v. N.C. Budharaja & Company reported in [1993] 91 STC 450 ; 1994 Supp (1) SCC 280 the Supreme Court observed thus :
"It is submitted by counsel for the respondent-assessee that since Section 80HH is intended to encourage establishment of industrial undertakings in backward areas for the reason that such establishment leads to development of that area besides providing employment, we must adopt a liberal interpretation which advances the purpose and object underlying the provision. The said principle, however, cannot be carried to the extent of doing violence to the plain and simple language used in the enactment. It would not be reasonable or permissible for the court to rewrite the section or substitute words of its own for the actual words employed by the Legislature in the name of giving effect to the supposed underlying object. After all, the underlying object of any provision has to be gathered on a reasonable interpretation of the language employed by the Legislature."
16. A Division Bench of this Court in Banamali Tea Estate v. State of Assam reported in (1985) 2 GLR 163, relying on the decisions of the Supreme Court held that in a taxing statute there is no room for any intendment. In order to interpret the taxing statute one has to look merely at what is clearly stated.
17. Keeping in mind the proposition of law enunciated by the Supreme Court and also this Court it is to be seen whether in the instant cases the petitioner is liable to pay tax in respect of excess M.S. rounds, The admitted position is that the petitioner did not manufacture himself those excess M.S. rounds. At the time of conversion of billets into M.S. rounds the petitioner manufactured the same only on behalf of the respective owners. No doubt, the left out M.S. rounds are taxable goods. But while assessing tax under the Act, the sale proceeds thereof cannot be included in his turnover inasmuch as the sale proceeds cannot be said to be sale price as defined inasmuch as the petitioner did not undertake any manufacture work or process the said M.S. rounds. Therefore, it cannot be said to be sale price and if it is not a sale price, the sale proceeds cannot be included in the turnover as defined under the Act and if it cannot be included in the turnover the question of realisation of tax under the Act does not arise. The language used in the definitions is very clear and specific and there is no ambiguity in the expression given in the definitions. Therefore, unless the petitioner manufactures, makes or processes any taxable goods or brings any taxable goods from outside Assam for sale in Assam, the petitioner is not liable to pay tax under the Act as demanded in respect of the excess M.S. rounds as aforesaid.
18. In view of the above, I allow the petitions and set aside the annexures I, II, III and V orders and annexure VI notices in the above civil rules and hold that the petitioner is not liable to pay tax under the Act in respect of the excess M.S. rounds for the said period mentioned in the aforesaid civil rules.
19. Under the facts and circumstances, I make no order as to costs.