State Trading Corporation of India Ltd. vs State of Gujarat

M.B. Shah, J.—The applicant is a Government of India undertaking and is a registered dealer under the Gujarat Sales Tax Act as well as under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act"), within the jurisdiction of the Sales Tax Officer, Gandhidham Circle at Gandhidham, Kutch District. Admittedly, prior to April, 1980, the applicant was making monthly payment of tax under the Sales Tax Act as well as under the Central Act. It is the case of the applicant that from April, 1980, it was advised by the local sales tax practitioner that, under the Central Act, quarterly returns can be filed and that the tax amount can also be paid at the time of submitting the returns and that monthly payment of tax was not obligatory in respect of the Central Act as there was no provision for making monthly payment. The applicant, therefore, stopped making monthly payment of Central sales tax from April, 1980, and since then, it made payments of Central sales tax quarterly up to November, 1981. However, from December, 1981, the applicant started making monthly payments even in so far as the Central sales tax was concerned.

Before the Gujarat Sales Tax Tribunal and the sales tax authority, the disputed contentions, therefore, were :

(i) whether the applicant was required to make monthly payment in so far as the Central sales tax is concerned ? and

(ii) whether the applicant would be liable to pay interest as provided u/s 47(4A) of the Sales Tax Act read with section 9(2) of the Central Act for the delayed payment of Central sales tax ?

It is the contention of the applicant that under rule 5 of the Central Sales Tax (Gujarat) Rules, 1970, the Central sales tax is required to be paid quarterly and, therefore, it was not obligatory on the applicant to make monthly payment of such tax as provided in rule 31(1A) of the Gujarat Sales Tax Rules, 1970. It was also contended that, even if there is delay in payment of sales tax, the applicant would not be required to pay interest as provided u/s 47(4A) of the Sales Tax Act. In the alternative, it was contended that the interest was levied without issuing any notice and without following any principles of natural justice. The Tribunal negatived the said contentions by holding that rule 5 of the Central Sales Tax (Gujarat) Rules, 1970, makes no provision as to the time for making payment and that it does not require the applicant to make payment of tax quarterly. The Tribunal further held that the provisions contained in rule 31(1A) of the Gujarat Sales Tax Rules, 1970, would be applicable and that the applicant is required to make monthly payment of tax as provided therein. The Tribunal also negatived the contention of the applicant that interest u/s 47(4A) of the Sales Tax Act was levied without affording an opportunity of hearing to the applicant and held that there was no requirement for considering whether there was sufficient cause or not for not making such monthly payments in the matter of levy of interest. For this purpose, the Tribunal relied upon the decision of the Supreme Court in the case of Haji Lal Mohd. Biri Works v. State of U.P. [1973] 32 STC 496, wherein the Supreme Court observed that liability to pay such interest was automatic and arises by operation of law and that it was not necessary for the Sales Tax Officer to make an assessment order in respect of interest or to issue a notice of demand in respect of such interest. For this purpose, the Tribunal also relied upon the decision of the Supreme Court in the case of Associated Cement Co. Ltd. v. Commercial Tax Officer [1981] 48 STC 466. However, with regard to the calculation of interest, the Tribunal modified the order passed by the Sales Tax Officer by considering rule 31(1A) of the Gujarat Sales Tax Rules, 1970, which, inter alia, provides for monthly payment of tax due or one-third of the total amount of tax paid or payable as per the return for the corresponding quarter of the immediately preceding year. At the time of hearing of the appeal, the learned advocate for the applicant furnished the necessary details showing the total amount of tax paid as per the returns for the corresponding quarters of the immediately preceding year. No objection was raised by the learned Government agent appearing for the State with regard to the details submitted by the learned advocate for the applicant and it bears the signatures of the learned advocates for the parties. On that basis, the Tribunal modified the order passed by the sales tax authorities. It directed that the figures of the amount of interest in question as levied by the Sales Tax Officer should be modified by the concerned Sales Tax Officer so as to bring them in conformity with the figures submitted by the applicant as per the two appendices marked as "A" and "B" appended to the judgment and the interest in question should be levied in accordance with the figures of tax given in column 3 of the said appendices instead of column 4.

Against the aforesaid judgment and order passed by the Gujarat Sales Tax Tribunal in Second Appeals Nos. 189 and 190 of 1982 decided on March 30, 1984, the applicant preferred an application before the Tribunal for making a reference to this Court. After considering various contentions raised by the applicant, the Gujarat Sales Tax Tribunal has referred the following questions for our decision u/s 69 of the Gujarat Sales Tax Act, 1969 (hereinafter referred to as "the Sales Tax Act").

Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the applicant was liable to pay interest u/s 47(4A) of the Gujarat Sales Tax Act, 1969, read with section 9(2) of the Central Sales Tax Act, 1956, for non-payment of Central sales tax on monthly basis as laid down in rule 31(1A) of the Gujarat Sales Tax Rules, 1970 ?

Whether, on the facts and circumstances of the case, the Tribunal was right in not holding that the principles of natural justice were violated on the ground that the applicant was not allowed sufficient opportunity of being heard on the point of levy of interest ?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that section 47(4A) of the Gujarat Sales Tax Act, 1969, did not contemplate any notice to the applicant for enquiring into reasonable cause for not making monthly payment of the Central sales tax ?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that no discretion was vested in the sales tax authority to remit either wholly or partly interest which a dealer is liable to pay ?

Whether, on the facts and in the circumstances of the case, the direction of the Tribunal as to the calculation of interest given in paragraphs 10 and 11 of the judgment of the Tribunal in Second Appeals Nos. 189 and 190 of 1982 can be said to result in enhancement of penal interest levied by the Sales Tax Officer and whether the same is not permissible in law ?

We would first consider question No. 1, i.e., whether the Tribunal was right in law in holding that the applicant was required to pay Central sales tax on monthly basis as laid down in rule 31(1A) of the Gujarat Sales Tax Rules, 1970. For deciding this question, it would be necessary to refer to section 9 of the Central Sales Tax Act, 1956. Sub-section (1) provides that the tax payable by any dealer under this Act on sales of goods effected by him in the course of inter-State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of sub-section (2), in the State from which the movement of the goods commenced. For our purpose, sub-section (2) of section 9 is relevant, which is as under :

"(2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, charging or payment of interest, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly."

So far as the present case is concerned, the relevant part of sub-section (2) clearly provides that, subject to other provisions of the Act and the Rules made thereunder - (i) the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State, shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax; (ii) and, for this purpose the authorities may exercise all or any of the powers they have under the general sales tax law of the State; and (iii) the provisions of such law (general sales tax law of the State), including provisions relating to returns, ............. advance payment of tax, ....... charging or payment of interest ......... shall apply accordingly. Hence, the sales tax authority is entitled to collect the Central sales tax in accordance with the provisions of the Gujarat Sales Tax Act and the Rules made thereunder including the provisions relating to returns, advance payment of tax and charging or payment of interest.

Further, relevant provision under the Gujarat Sales Tax Act for payment of tax and charge of interest for the delayed payment is section 47. Sub-section (1) of section 47 provides that tax shall be paid in the manner provided therein and at such intervals as may be prescribed. Hence, as per sub-section (1) of section 47, the tax is required to be paid at such intervals as may be prescribed by the Rules. Relevant rules are rule 31 and sub-rule 31(1A). If the tax is not paid at the intervals as prescribed by the Rules, then, under sub-section (4A) of section 47, simple interest at the rate of 24 per cent per annum for the delayed payment is required to be paid. It provides that, if a dealer does not pay the amount of tax within the time prescribed for its payment, then such dealer shall pay simple interest at the rate of 24 per cent per annum on the amount of tax not so paid or on any less amount thereof remaining unpaid during such period.

Sub-section (4A) of section 47 reads as under :

"(4A). Where a dealer does not pay the amount of tax within the time prescribed for its payment under sub-section (1), (2) or (3), then there shall be paid by such dealer for the period commencing on the date of expiry of the aforesaid prescribed time and ending on date of payment of the amount of tax, simple interest, at the rate of twenty-four per cent per annum on the amount of tax not so paid or on any less amount thereof remaining unpaid during such period."

Further, period or interval, during which the tax is required to be paid, is prescribed by rule 31 of the Gujarat Sales Tax Rules, 1970. Sub-rule (1) of rule 31 provides that every dealer to whom sub-rule (1A) does not apply and who is required to furnish the monthly or quarterly returns or declarations shall within a period of one month and seven days immediately succeeding the month or quarter for which any such return or declaration is required to be furnished pay into the Government Treasury the tax due and payable in such month or quarter along with the amount of any interest payable by him under sub-section (4A) of section 47. He is also required to submit to the Sales Tax Officer one copy of the receipted challan in form 33 along with the returns. For our purpose, the relevant provision is sub-rule (1A)(a) of rule 31, which is as under :

"(1A)(a) Every dealer, who is required to furnish quarterly return or as the case may be declaration and in whose case, the total amount of tax payable by him, for all the places of business in the State, in the previous year is not less than twenty-five thousand rupees shall, for the first two months of every such quarter make a monthly payment of an amount which is -

(i) the actual amount of tax payable for the month, or

(ii) one-third of the total amount of tax paid or payable as per the return for the corresponding quarter of the immediately preceding year.

(b) The monthly payment for the first two months of a quarter under clause (a) shall be made within a period of one month and seven days from the end of the month to which the payment relates.

(c) The payment of balance of the amount of tax and penalty due from him after deducting the monthly payments for the first two months of the quarter made under clause (b), from the aggregate of the amount of tax due from him according to the quarterly return or as the case may be declaration and the penalty, if any, payable by him u/s 45, shall be made on or before the date prescribed for submission of such quarterly returns or as the case may be declaration.

(d) The payments under this rule shall be indicated by dealer by submitting to the concerned Sales Tax Officer one copy of the receipted challan in form 33."

This rule specifically provides that a dealer, who is required to furnish quarterly returns and in whose case total amount of the tax payable by him in the previous year is not less than twenty-five thousand rupees, shall, for the first two months of every such quarter, make monthly payment of tax as provided therein. It gives an option to the dealer to make monthly payment of tax on the basis of the actual amount of tax payable for the month or to pay one-third of the total, amount of tax paid or payable as per the returns for the corresponding quarter of immediately preceding year. In view of sub-rule (1A), a dealer, who has paid more than twenty-five thousand rupees as tax in the previous year, is required to make monthly payment of tax for the first two months of every such quarter. The balance of amount of tax payable for third month is required to be paid along with the quarterly returns. Therefore, reading sub-section (2) of section 9 of the Central Act together with section 47 of the Gujarat Sales Tax Act and rule 31 of the Gujarat Sales Tax Rules, the applicant was required to make payment of sales tax every month as provided in rule 31(1A).

The learned advocate for the applicant has relied upon rule 11 of the Central Sales Tax (Registration and Turnover) Rules, 1957 and rule 5 of the Central Sales Tax (Gujarat) Rules, 1970, for contending that the applicant is required to pay sales tax as per the said rules and, therefore, is not required to make monthly payment of tax.

Rule 11 of the Central Sales Tax (Registration and Turnover) Rules, 1957, deals with determination of turnover and the period of turnover in relation to any dealer liable to pay tax under the Central Act. It reads as under :

"11(1). The period of turnover in relation to any dealer liable to pay tax under this Act shall be the same as the period in respect of which he is liable to submit returns under the general sales tax law of the appropriate State :

Provided that in relation to a dealer who is not liable to submit returns under the general sales tax law of the appropriate State, the period of turnover shall be a quarter ending on the 30th June, 30th September, 31st December and 31st March, as the case may be, in a financial year."

Admittedly, the proviso to sub-rule (1) of rule 11 is not applicable in the present case. Therefore, as per this rule, the period of turnover in relation to the applicant-dealer shall be the same period which is provided in the Gujarat Sales Tax Act. In this view of the matter, in our view, the aforesaid rule 11 nowhere advances the contentions raised by the learned advocate for the applicant.

Further, heavy reliance was placed upon rule 5(1) of the Central Sales Tax (Gujarat) Rules, 1970, for contending that the applicant is required to submit quarterly returns along with receipted challans in the prescribed form in respect of the tax due according to such returns. Therefore, it was contended that the applicant is not required to make monthly payment of tax as provided in rule 31(1A). Sub-rule (1) of rule 5 reads as under :

Rule 5 : Submissions of returns. - (1) Every dealer registered under the Act shall unless he had been exempted in this behalf by the Commissioner, by an order in writing in this behalf, furnish a return in form III(B) in respect of each period for which his turnover is required to be determined under rule 11 of the Central Sales Tax (Registration and Turnover) Rules, 1957. Such return shall, inter alia, contain the particulars relating to the inter-State sales on which tax is leviable in the State of Gujarat u/s 9 of the Act and shall be furnished to the Sales Tax Officer within one month from the expiry of the period to which the return relates and to each return he shall attach one copy of the receipted challan in form IV(B) in respect of tax due according to such return and an abstract in form I(B)(1) :"

We are not concerned with the proviso to sub-rule (1) of rule 5 and, therefore, we are not referring to it.

This sub-rule (1) of rule 5 only provides for submission of returns by a dealer registered under the Central Act. He is required to submit quarterly returns for his turnover. Such returns should contain the particulars relating to inter-State sales on which the tax is leviable in the State of Gujarat u/s 9 of the Central Sales Tax Act. Such return is required to be furnished to the Sales Tax Officer within one month from the expiry of the period to which the return relates. It also provides that along with each return, the dealer shall attach one copy of the receipted challan in the prescribed form in respect of the tax due according to such return. This would mean that rule 5 deals with the submission of returns. It nowhere provides as to how the sales tax due and payable is required to be paid. The mode of payment of tax due is not provided. The mode of making payment of tax due is specifically provided only under the Gujarat Sales Tax Rules, 1970 and, as stated earlier, the said Rules would be applicable in view of section 9(2) of the Central Act for the purposes of collection, assessment and payment of tax and charging or payment of interest. Further, it should be noted that sub-rule (1A)(a) of rule 31 of the Gujarat Sales Tax Rules carves out an exception with regard to a dealer, in whose case total amount of tax payable by him in the previous year exceeds twenty-five thousand rupees and that he is required to pay the amount of sales tax on monthly basis as per the mode provided therein. With regard to those dealers, in whose cases, the total amount of tax payable by them in the previous year is less than twenty-five thousand rupees, they are not required to pay sales tax on monthly basis even though they are required to furnish quarterly returns.

Considering the aforesaid aspect, it is apparent that there is no conflict between rule 5 of the Central Sales Tax (Gujarat) Rules, 1970 and rule 31(1A)(a) of the Gujarat Sales Tax Rules, 1970. Rule 31 provides for time for payment of sales tax or intervals for making such payment as required u/s 47 of the Gujarat Sales Tax Act. Rule 5(1) only deals with submission of return and what a return should contain. It does not provide for time or mode of making payment of sales tax due. It also does not provide that, along with submission of return, sales tax due and payable should be paid. The only requirement of sub-rule (1) of rule 5 is that along with the return one copy of the receipted challan in respect of the tax due according to such return is required to be attached. If the tax is required to be paid monthly, then, with the quarterly return, copies of three receipted challans would be required to be attached. If the tax is required to be paid at the end of the quarter, only one copy of the receipted challan would be attached. Therefore, it would be far-fetched to say that, merely because the return is required to be submitted with one copy of the receipted challan in respect of the tax due according to such return at the end of the quarter, the applicant is required to make payment of sales tax only at the end of the quarter. Hence, in our view, there is no substance in the submission of the learned advocate for the applicant that the applicant was required to make payment of sales tax at the end of the quarter, i.e., at the time of submitting the return.

Once it is held that the applicant is liable to make monthly payment of Central sales tax, as provided under rule 31(1A) of the Gujarat Sales Tax Rules, 1970 and, if he has not paid sales tax on monthly basis, then as provided under sub-section (4A) of section 47 of the Gujarat Sales Tax Act, he would be required to pay interest for the delayed payment of tax. Sub-section (4A) requires that, if a dealer does not pay the amount of tax within the time prescribed for its payment, he is required to pay simple interest at the rate of 24 per cent per annum on the amount of tax not so paid or on any less amount thereof remaining unpaid during such period. Admittedly, in this case, the applicant has not paid the tax as provided on monthly basis and, therefore, it was liable to pay interest u/s 47(4A) of the Gujarat Sales Tax Act, 1969, read with section 9(2) of the Central Sales Tax Act, 1956.

In this view of the matter, question No. 1 requires to be answered in the affirmative in favour of the Revenue and against the assessee.

Re : Questions Nos. 2, 3 and 4 :

These questions do not require elaborate discussion, because, it is well-established that, with regard to arrears of sales tax, accrual of interest is automatic and arises by operation of law. No separate notice of demand is required to be served in that respect. Usual interest becomes payable if the arrears of sales tax remained unpaid within the prescribed period during which the tax is required to be paid. It is a matter of mere arithmetical calculation to arrive at the figure of interest. The amount of tax on which interest is to accrue, the rate of interest, the date from which interest is to commence and the date up to which interest is to be counted are all known. For this purpose, the Tribunal rightly referred to the decisions of the Supreme Court in the cases of Haji Lal Mohd. Biri Works, Allahabad through Abdul Hamid Vs. The state of U.P. and Others, and Associated Cement Company Limited Vs. Commercial Tax Officer, Kota and Others, . It should be noted that the aforesaid decisions are relied upon by the Supreme Court in the case of Prahlad Rai and others Vs. Sales Tax Officer, Meerut and others, . In this view of the matter, questions Nos. 2, 3 and 4 are required to be answered in the affirmative in favour of the Revenue and against the assessee.

Re : Question No. 5 :

For this question, we make it clear that, once the assessee has not paid sales tax due on monthly basis, as stated above, he was required to pay interest as provided u/s 47(4A) of the Gujarat Sales Tax Act. Further the Tribunal, with the consent of the Revenue, has directed that the order passed by the Sales Tax Officer with regard to payment of interest shall be modified and interest shall be charged so as to bring it in conformity with the figures submitted by the applicant as per the two appendices marked as "A" and "B" appended to the judgment and interest in question shall be levied in accordance with the figures of tax given in column 3 of the said appendices instead of column 4. By adopting this method, it seems that, with regard to the months of January, 1981 and February, 1981, the applicant is required to pay interest on the hypothetical amount of Rs. 69,71,294 on the basis of one-third of the total amount of tax paid as per the return for the corresponding quarter of the preceding year, i.e., ending March, 1980. The Sales Tax Officer has calculated interest for the quarter January-February-March, 1981, on the basis of the quarterly return submitted by the applicant and worked out interest by dividing it by three, i.e., Rs. 20,70,778 per month. Considering the fact that the applicant has failed to make monthly payment of sales tax due, the Sales Tax Officer had properly calculated interest on the basis of quarterly return submitted by the applicant. Further, as the revenue authorities have not moved for enhancement of interest for the particular quarter, it was not open to the Tribunal to enhance the interest by directing the applicant to pay interest on hypothetical amount of Rs. 69,71,294 instead of Rs. 20,70,778 as directed by the Sales Tax Officer. In this view of the matter, question No. 5 is required to be answered in affirmative in favour of the assessee and against the Revenue that is to say, for the months of January, 1981 and February, 1981, interest should be levied only on the basis of Rs. 20,70,778 per month as calculated by the Sales Tax Officer.

In the result, we answer the questions Nos. 1 to 4 in the affirmative in favour of the Revenue and against the assessee. Question No. 5 is answered in affirmative in favour of the assessee and against the Revenue. There shall be no order as to costs.

Reference answered accordingly.