AI Structured Summary
Not yet generated for this judgment
Judgment
K. Lahiri, C.J.—The sole question posed in this writ application under Article 226 of the Constitution may be framed thus:
Is the Petitioner entitled to remission and/or refund u/s 37A of the Assam Sales Tax Act, 1947?
It is the common case of the parties (a) that at all relevant period the Petitioner was a "dealer" under the Assam Sales Tax Act, 1947, for short "the Act": (b) that "Natural Gas"'' was taxable under "the Act" upto 31.3.69 but on and from 1.4.69 the item was made taxable under the Assam (Sales of Petroleum and Petroleum Products, including Motor spirit and Lubricants) Taxation Act, 1955 : (c) that at all relevant time the Petitioner was net a dealer within the meaning of the expression in the Assam (Sales of Petroleum and Petroleum Products, including Moter Spirit and Lubricants) Taxation Act, 1955; (d) that the Petitioner purchased natural gas and paid sales tax upto August 22, 1968.
Necessary facts for disposal of the points: Government of Assam, Finance Department informed the Petitioner in reply to their letter dated 9.5.68 that u/s 37A (2) of "the Act" as well as u/s 24A (2) of the Assam Finance (Sales Tax) Act, 1956 (as amended) the manufacturers would be entitled to draw back, set off or refund of the whole or any part of the amount of tax paid at the time of purchase of raw materials used by them for manufacture of goods for sale. It was also stated that if natural gas was used by the Petitioner as raw material for the manufacture of "chemical fertilizer" for sale, it would be eligible for the above concession. However, on scrutiny of the provision of Section 37A of "the Act" as well as Section 24A (2) of the Assam (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1955, the Government informed the Petitioner, by its letter dated 7th March, 1969, that a manufacturer is entitled to refund, draw back or set off subject to certain conditions and that necessary rules in this connection were in the process of being framed. It is claimed by the Petitioner that it had paid sales tax on natural gas to the tune of Rs. 14,867.34 p. till August, 1968. Similarly, the Petitioner paid Rs. 77,423.61 p. till March. 1969. The Petitioner asked for refund of sales tax paid u/s 37A (2) of "the Act'''' which was turned down by the Government. The Petitioner claims that he was entitled to refund u/s 37A (2) of "the Act" We are, therefore, to consider whether the State Government has acted illegally or in breach of Section 37A (2) of "the Act" in refusing to refund the amount of Rs. 62,919.05 as prayed for by the Petitioner.
The sole contention of Mr. Banerjee, learned Counsel for the Petitioner is that the State Government is bound to refund either the whole of the amount of Rs. 62,919.05 or a part of the tax paid in respect of the purchase of natural gas u/s 37A of "the Act". We extract the provision of Section 37A of "the Act".
37A. (1) The State Government, for reasons to be recorded in writing, may remit the whole or part of the amount of the tax or penalty payable in respect of any period by any registered dealer who has suffered heavy loss due to any natural calamity.
(2) The State Government may by rules, provide that in such circumstances and subject to such conditions as may be prescribed, a draw back, set off, or a refund of the whole or any part of the tax paid in respect of any purchase of raw materials under this Act for use by any dealer in the manufacture of goods for sale, be grunted to such-dealer.
[Emphasis added]
Section 37A was inserted by Assam Act XVIII of 1959 with effect from 1.4.59 which was word for word same with the present Sub-section (1) of Section 37A. The head note of the section read as ''Remission'' which still continues to be so. We have doubt as to whether the entire section falls under the term ''Remission'' or not. By Act XIV of 1967 Sub-section (2) was introduced with effect from 18.10.67. In short, during the period commencing from 1.4.59 to 17.10.67 the previsions of Section 37A(1) were in the field and Sub-section (2) came into force on and from 18.10.67.
It is necessary to re-count that Section 37 deals with "Refund". Section 37(1) imposes a statutory obligation on the Commissioner to refund any sum paid by a dealer in excess of the sum due from him under "the Act". Section 37(2) provides that where the tax has been levied under the Act in respect of the ''declared goods'' which are subsequently sold in the course of inter-State trade or commerce, the tax so levied shall be refundable in the manner prescribed. Earlier Section 52A provided for such refund but it was deleted on the introduction of Section 37(2), Sub-sections (3) and (4) of Section 37 provides that interest is payable by the Government if, for reasons of delay, a refund is not made within 90 days of such refund being due. However, no interest is payable on refund due under Sub-section (2) of Section 37. Sub-section (4) of Section 37 provides that where the tax assessed has been reduced on appeal, revision etc. the refund shall be deemed to be due from the date of the knowledge of the assessing authority about the order of the appellate or revisional authority.
It is thus seen that the power of ''refund'' was exclusively kept within the jurisdiction of the Commissioner of Taxes. The State Government had no jurisdiction to grant refund, acting u/s 37 of "the Act". The term ''Refund'' connotes that after payment or deposit of the amount or part thereof is directed to be refunded from the coffer of the holder of the fund. It means "to re-pay or to restore or to return money in restitution or repayment, e.g. to refund over-paid taxes and/or to refund taxes paid on curtain contingencies". It is the common case of the parties that the State Government has no power or jurisdiction to direct refund of any tax or part thereof acting u/s 37 of "the Act".
Now let us turn to Section 37A of "the Act". It will be seen on perusal of Section 37A (l) that when it is established that a registered dealer has suffered heavy loss due to any ''natural Calamity'' the State Government may remit the whole or part of the amount of the tax or penalty "payable" in respect of any period. Section 37A (1) empowers the State Government to remit the whole or part of the amount of the tax or penalty. However, it can allow such remission only when a registered dealer has suffered heavy loss due to any natural calamity. The existence of the circumstance is a condition precedent to enable the Government to allow refund etc. Similarly, the State Government must record reasons in writing before granting remission The term ''payable'' has some significance, however, we leave it at that, as we are not very much concerned with Section 37A (1). Mr. Banerjee, learned Counsel for the Petitioner has fairly and correctly submitted that the case does not fall within the ambit of Section 37A (1) of the "Act"
It is, therefore, to be seen whether the Petitioner is entitled to the relief provided in Section 37A (2). The legislative intent is imprinted in Section 37A (2). The Sub-section has been designed to empower the State Government to grant a draw back, set off or refund of the whole or any part of the tax paid in respect of any purchase of raw materials under ''the Act'' for use by any dealer in the manufacture of goods for sale. The tax which may be refunded u/s 37A (2) must be one which has been paid in respect of any purchase of raw materials under "the Act", that is, the Assam Sales Tax Act, I947. It is the common case of the parties that after 1.4.69 ''Natural Gas'' was no longer taxable under ''the Act'' as it became taxable only under the Assam. (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1955. As such the claim of the Petitioner for refund of the tax paid from 1.4.1969 onwards could not have been entertained by the State Government u/s 37A(2) of "the Act". The tax for that period was paid by the Petitioner under the provisions of some other Act. This aspect of the matter is also not disputed by learned Counsel for the Petitioner.
The main contention of learned Counsel for the Petitioner is that the State Government could grant the relief even in the absence of any Rules. It is difficult to accept the contention. As alluded, the legislative intent is pictured in Section 37A(2) of ''the Act'', They desired that the State Government should exercise the power in the manner and as provided In "the Rules". Only upon framing of the Rules providing "such circumstances" and "such conditions" as may be prescribed in the Rules, the State Government may grant refund. In other words the Government may allow draw back, set off or refund In accordance with the circumstances and the conditions prescribed in "the Rule". The legislature intended and that only upon making of the Rule prescribing the circumstances and the conditions, the draw-back, set off and refund could be granted by the State Government. When the Government is empowered to do a certain thing in a certain way and in certain manner the power can be exercised only under those circumstances. The very object or prescribing specific circumstances and certain conditions to be provided in the Rules is to control the power of the State Government while exercising the power. We cannot read the collocation of the words "by Rules provide that in such circumstances and subject to such conditions as may be prescribed" as otiose. To omit them is to miss the target. We cannot give any meaning to the Sub-section if we just read the section without those expressions In our opinion, the State Government is authorised to frame the Rules setting out the circumstances and subject to such conditions to grant reliefs. The legislature never desired to grant the State Government arbitrary and unbridled power to grant the relief in any circumstances and under any condition. Only after the Rules are made setting forth the circumstances and the conditions the authority may grant relief.
We do not think that we can "re-write" the Sub-section (2) of Section 37A to exclude the expressions. The language of the Sub-section being plain and unambiguous it is not open to us to read something which is not there based on a priori reasoning as to the probable intention of the legislature. Such intention can be gathered only from the words actually used in the Sub-section. In a court of law, what is expressed has the same value as what is intended. In The Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur, the Supreme Court has held that it is the duty of the court to give effect to the words used without scanning the wisdom or policy of the legislature and without engrafting, adding or deleting or implying anything which is not congenial or consistent with such express intent of the law giver. More so, if the statute is a taxing statute. Same principles we note in Shrimati Tarulata Shyam and Others Vs. Commissioner of Income Tax, West Bengal, In Polestar Electronic (Pvt.) Ltd. Vs. Additional Commissioner, Sales Tax and Another, the Supreme Court relied on the Rule laid down by Rowlatt J. in Cape Brandy Syndicate v. Commissioner of Inland Revenue (1921) 1KB 64 which was accepted by the House of Lords in Canadian Eagle Oil Co. Ltd, v. The King 27 TC 205 (248) , Rowlatt J, observed in a situation more or less same with the present case, that 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 of fairly at the language used. The same view has been taken by Bhagwati J, speaking for the Supreme Court in A.V. Fernandez Vs. The State of Kerala, Lord Halsbury in Leader v. Daffey (1888) 13 App. Cas 295 (301) observed as follows:
that, whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained. But I agree that you must, look at the whole instrument in much as there may be inaccuracy and inconsistency.
For the reasons set forth above we conclude that until the Rules are framed neither the State Government nor any other authority is empowered to grant any relief u/s 37A(2) of "the Act". It is an admitted fact that no rule has been framed providing the conditions and circumstances for granting the reliefs. As such, neither the State Government nor any other authority could have granted any relief to the Petitioner. The Petitioner is not entitled to any relief until the Rules are framed prescribing the circumstances and/or the conditions under which remission or refund may be granted by the State Government and or any other authority. Under these circumstances the petition must fail.
Mr. Banerjee, learned Counsel for the Petitioner has strongly contended that we should direct the State government to frame the Rules. We are of the opinion that it is for the State Government to frame the Rules. It ''may'' frame the Rules or it ''may not''. It may be that due to socio-economic conditions prevailing in the State the Government desire not to make the Rules. It might be that the State Government considered that it would not be just and expedient to frame the Rules to grant set off, refund or draw back. It may be that the State Government considered that the provisions of "refund" u/s 37 of ''the Act'' and the "remission'''' u/s 37A (1) were sufficient and no other relief was called for. Strangely the provisions of Section 37A (2) are continuing since 1967. Seventeen yean have elapsed but no effective Rules have been framed. If the State Government do not desire to grant relief u/s 37A (2) the Sub-section need be deleted, which, the State has not done so as yet. It ii high time for the State Government to consider whether to frame the Rules or to delete the Sub-section (2) of Section 37A. We draw the attention of Mr. S.N. Bhuyan, learned Advocate General, Assam, who appears on behalf of the Respondents in the instant case and leave the matter at that.
For the reasons set forth above we hold that the Petitioner has no legal right to claim any relief u/s 37A (2) of "the Act". We hold that we cannot direct the State Government to grant relief to the Petitioner u/s 37A (2) of the Act on the facts and circumstances of the case.
In the result the petition fails. It is dismissed with costs of Rs. 200/- payable by the Petitioner to the Respondents. Learned Advocate General submits that instead or making the payment to the State Government the said amount may be directed to be paid to the Gauhati High Court Legal Aid Committee. We highly appreciate the stance taken by learned Advocate General, Assam to uphold and foster growth of the Legal Aid System in the State. We, therefore, direct the Petitioner to pay the amount to the Secretary, Gauhati High Court Legal Aid Committee within two months from to-day.