The Commissioner, Trade Tax vs S/S Amco Binel Pvt. Ltd.

Prakash Krishna, J.—The dealer opposite party carries on the business of manufacture and sale of P.V.C. Sheets and has been granted eligibility certificate u/s 4-A of U.P. Trade Tax Act for the period from 19-8-1991 to 18-8-1999. Similar exemption has been granted to it in respect of inter State sales under notification No. 1094 dated 27-7-1991 issued by the State Government in exercise of powers conferred on it under Sub-section (5) of Section 8 of the Central Sales Tax Act (hereinafter referred to as the Act). Under the said notification, the dealer opposite party is entitled to claim total exemption in respect of inter State sales for the two assessment years. In the subsequent years, such a dealer is entitled to exemption at the rate prescribed in Annexure-1 to the notification. The dispute in the present case relates to the third assessment year from the date of grant of eligibility certificate. Under the notification, exemption is granted at 10% of the rate of tax normally applicable under Central Sales Tax Act to the goods concerned.

The afore stated notification was amended subsequently by notification No. 1228 dated 31-3-1992. The amending notification provides that in column 4 of the earlier notification for the word ''Act'' the words ''U.P. Sales Tax Act, 1948'' shall be substituted. In other words, for the purpose of calculation of the exemption under the amended notification, the rate of tax as applicable to the goods in question in the State of U.P. would be applicable. P.V.C. Sheets manufactured by the dealer opposite party is taxable at the rate of 10% in the State of U.P. The dealer opposite party claimed that in respect of inter State sales of P.V.C. Sheets against form C to registered dealer, dealer is liable to pay tax at the rate of 4%. The said plea (sic) not (sic) favour either (sic) the Assessing Authority or with the first appellate authority. The Tribunal, however, by the order under revision, accepted the contention of the dealer opposite party and held that the dealer opposite party is liable to pay tax at the rate of 10% of 4%, as the tax payable under Central Sales Tax Act is 4% in the third year, if the sale has taken place against form C.

In the memo of revision, the following question of law has been sought to be raised:

(i) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold the taxability of the dealer on the central sales against form C in the third year of the exemption of the new unit at the rate of 10% of the 4% despite the fact in the third year of the exemption of tax was liable to be paid at the rate of 10% of the 10% as per provisions of the Act?

Learned Standing Counsel contends that the dealer opposite party was granted eligibility certificate No. 177 dated 24-4-1993 u/s 4-A of U.P. Trade Tax Act and as per the said certificate, it is liable to pay the tax in the third year 10% of the due tax, in the fourth year 30% of the due tax, in the fifth year 40% and so on. The notification No. 1094 dated 27-7-1991 should be read with notification No. 1228 dated 31-3-1992. By the subsequent notification, the earlier notification having been amended, the only option left open to the dealer opposite party is either to accept the exemption as provided for under the eligibility certificate or to forgo it in toto.

Sri Nishant Nfflsra, Advocate appearing on behalf of the dealer opposite party, on the other hand, submits that the notification was issued u/s 8(5) of the Act for the purpose of providing exemption from or reduction in the payment of inter State sales tax to a new unit and to the units which have undertaken expansion, diversification or modernization. If literal interpretation, as placed by the learned Standing Counsel is accepted, it would lead to absurd result and the notification in question will provide greater rate of tax than the one prescribed under the Central Sales Tax Act. What to say about grant of exemption or reduction in rate of tax, submits the learned Counsel for the dealer opposite party. Elaborating the argument, he submits that the notification should be interpreted in the light of the words used in Section 8(5) of the Central Sales Tax Act whereby and whereunder these notifications were issued.

Considered the respective submissions of the learned Counsel for the parties and perused the record.

It is apt at this stage to have a look to the notification No. 1094 dated 27-7-1991. Relevant extract is reproduced below:

Whereas the State Government is of the opinion that for promoting the development of certain industries in the State, it is necessary to grant exemption from or reduction in rate of tax to new units and also to units which have undertaken expansion, diversification or modernization:

Now, therefore, in exercise of the powers under Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Act No. 74 of 1956) (hereinafter referred to as the ''Act'') the Governor is pleased to declare that:

1(A) in respect of any goods manufactured in a ''new unit'', other than the units of the type mentioned in Annexure II established in the areas mentioned in column 2 of Annexure I, the ''date of starting production'' whereof falls on or after first day of April, 1990 but not later than 31st day of March, 1995, no tax shall be payable, or, as the case may be, the tax shall be payable at the reduced rates, as specified in Column 4 of Annexure I, by the manufacturer thereof on the turnover of sales of such goods, for the period specified in Column 3 of the said Annexure I, or till the maximum amount of tax relief by such exemption from or reduction in the rate of tax as specified in Column 5 of Annexure I is achieved, whichever is earlier.

The period specified in Column 3 of the said Annexure shall be reckoned horn the date of the first sale, or the date following the expiration of six months from the date of starting production, whichever is earlier.

----------------------------------------------------------------------------------------- Sl. No. Location of Total period of Rate of tax applicable (denoted as unit exemption/reduction percentage of the rate of tax normally in the rate of tax applicable under the Act to the goods concerned) ------------------------------------------------------------------------------------------ Year in case of units in case ---------------------------------------------------of with a fixed other units capital investment exceeding 50 crores ------------------------------------------------------------------------------------------ 1 2 3 4 ------------------------------------------------------------------------------------------ 1 --- Ten years A B C ------------------------------------------------------------------------------------------ 1st year NIL NIL 2nd year NIL NIL 3rd year NIL 10% 4th year NIL 10% 5th year NIL 20% 6th year NIL 20% 7th year NIL 30% 8th year NIL 50% 9th year NIL 70% 10th year NIL 90% ------------------------------------------------------------------------------------------

As mentioned hereinbefore, the afore stated notification was amended by notification No. 1228 dated 31-3-1992. Relevant extract of the amended notification reads as under:

(a) In column 4 for the word "Act" the words "Uttar Pradesh Sales Tax Act, 1948" Shall be substituted.

The learned Standing Counsel strongly contends that a conjoint reading of the afore stated two notifications make the intention of the legislature clear that for the purpose of grant of exemption on the turnover of a commodity produced by a new unit, the rate of tax as applicable to the said commodity in the State of U.P. shall be taken into consideration and not the rate of tax as applicable to inter State sales. The said argument of the learned Standing Counsel has an attractive veneer or cosmetic charm but law is more than skin-deep and courts peep beneath to see the principle of equity and justice thereby promoted.

When the matter is examined deeply and Section 8(5) of the Central Sales Tax Act is taken into consideration, as also the purpose and object for which the afore stated two notifications were issued, the legal position appears to be otherwise.

Section 8 of the Central Sales Tax Act prescribes rate of tax on sales in the course of inter State trade or commerce. Sub-section (1) thereof provides that every dealer v-ho in the course of inter State trade or commerce (a) sells to the Government any goods: or (b) sells to a registered dealer other than the Government goods shall be liable to tax under Central Sales Tax Act at the rate of 4%. Under Sub-section (2) the tax payable by such dealer in the case of declared goods shall be calculated at twice the rate applicable to the sale or purchase of such goods and in case of goods other than the declared goods shall be calculated at the rate of 10% or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher. Sub-section (1) of Section 8 thus provides that the sale of goods other than declared goods to a registered dealer is settled at the rate of 4% if sale transaction is covered by form C otherwise it is taxable at the rate of 10%.

Section 8(5) of the Central Sales Act which is material for our purpose, opens with a non obstante Clause and provides that if the State Government is satisfied that it is necessary to do so in the public interest it may by notification in the Official Gazette and subject to such conditions as may be specified therein, direct that no tax or reduced rate of tax under the Central Sales Tax Act shall be payable by a dealer.

The afore stated two notifications were issued undoubtedly in exercise of powers conferred un the State Government u/s 8(5) of the Act. It may be noted that the power given to the State Government is for specific purpose i.e. to reduce the rate of tax or to exempt goods from levy of tax.

It has no power to raise the rate of tax on the sale of goods which takes place in the course of inter State trade or commerce. Xo such power vests with the Government of India also. Sub-section (5) of Section 8 gives a special privilege to the State Government to grant exemption or reduction in the rate of tax in respect of inter State trade or commerce. The State Government can exempt the goods from Central sales tax or reduce the rate of tax by issuing notification in the Official Gazette of the State. Reference can be made usefully to the case of State of Madras v. Natraja Mudaliar (1968) 22 SCC 376 wherein Justice Shah spoke for majority thus:

...Sub Section (5) of Section 8 provides forgiving individual exemptions in public interest.

At this juncture, it is important to notice that two notifications under consideration were issued by the State Government by way of delegated legislation.

Delegated legislation has been defined by Salmond as "that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority" (See: Salmond, Jurisprudence, 12th Edn. Page 116).

Delegated legislation is not a new phenomenon. Ever since the Statutes came to be made by Parliament, the Delegated Legislation also came to be made by an authority to which the power delegated by the Parliament. It is no use going back into the pages of history or to look to the Statute of Proclamations 1539, under which Henry VIII was given extensive powers to legislate by proclamations. What is intended to be emphasised is that there has always been, and continues to be, need for delegated legislation. The exigencies of the modem State, especially the social and economic reforms, have given rise to the making of Delegated Legislation on a large scale (by authorising the Government, almost in every Statute passed by Parliament or the State Legislature to make Rules) so much so that a reasonable fear could have arisen among the people that they were being ruled by the Bureaucracy.

One of the essential requirements of the delegated legislation is that the delegated legislation cannot widen or shorten the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making Rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act as held by the Apex Court in Agricultural Market Committee Vs. Shalimar Chemical Works Ltd.,

In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. Vs. The Asstt. Commissioner of Sales Tax and Others, , the Supreme Court upheld the validity of Section 8(2)(b) of the Central Sales Tax Act, 1958, and ruled, that Parliament, with a view to prevent evasion of tax, can make a provision that Central sales tax shall be levied at the same rate at which sales tax is levied under the State Act. This case has been followed in International Cotton Corpn. (P) Ltd. Ors. Vs. Commercial Tax Officer, Hubli, and Others, , and in State of Kerala Vs. Attesee (Agro Industrial Trading Corporation), .

Parliament as a policy decided that State can grant reduction or exemption from Central sales tax if it so deem fit in the public interest. This policy of Parliament as laid down in Section 8(5) cannot be transgressed or violated by the State Government while exercising its delegated power and thus cannot enhance the rate of Tax. It has been held in re, Article 143, Constitution of India. Rajnarain Singh Vs. The Chairman, Patna Administration Committee, Patna and Another, that power given under delegation can be exercised when ii supplements or modifies the existing Jaw. It cannot be exercised when it is in conflict with or repugnant to an existing law. The above case has been followed in Ramesh Birch and Others Vs. Union of India (UOI) and Others,

The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act as held by the Apex Court in Hukam Chand etc. Vs. Union of India (UOI) and Others, Addl. District Magistrate (Rev.) Delhi Admn. Vs. Shri Siri Ram,

In ITW Signode India Ltd. Vs. Collector of Central Excise, the Apex Court has field as under:

...It is a well- settled principle of law that in case of a conflict between a substantive Act and delegated legislation, the former shall prevail in as much as delegated legislation must he read in the context of the primary/legislative Act and not vice versa.

It is also equally true that while interpreting a particular profusion in a statute, one should look squarely at the words in the light of what is expressly expressed. The court cannot imply anything which is not expressed in it nor can it import provisions in the statute so as to supply any assumed deficiency. Reference fan be made to Commissioner of Sales Tax, Uttar Pradesh Vs. The Modi Sugar Mills Ltd.,

On consideration of various principles applicable to principles of interpretation of statute it has laid down time and again that it is the duty of court to avoid head on collision between two section of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.

In Union of India and another etc. etc. Vs. A. Sanyasi Rao and other etc. etc., the Apex Court read down Section 44 AC of Income Tax Act to save its vires. The said Section opens with a non obstante Clause and on its plain reading excludes the expenditures which are applicable to other businesses, for deduction from the income.

Now let us examine the argument of the learned Standing Counsel. If the argument of the learned Standing Counsel is accepted, as it is pointed out by the Tribunal, in 8th, 9th and 10th assessment year, under the notification, the dealer opposite party will have to pay 5%, 1% and 9% respectively of the tax while under the Central Sales Tax Act, on such transactions, the liability to pay the tax is 49c against form C. Anomalous position would be created. A person who is availing the benefit of concessional rate, will have to pay more, a situation not envisaged by the legislature.

Keeping in view the object and purpose of enactment of Section 8(5) of the Act, the notifications have to be interpreted harmoniously with the main provisions i.e. Section 8(5) of the Act. Interpretation of statute is not mechanical and literal exercise. One has to look into the attending circumstances and find out the real intention and purpose of law. ''Inconsistency'' and ''repugnancy'' should be avoided. It has been said time and again that it is the duty of the court to avoid "head on collision" between two Sections of the same Act and effect should be given to both by adopting harmonious construction. A construction that renders one of the provisions to a useless lumber or dead letter is not a harmonious construction.

The recent trend of the courts while interpreting a statute is to give a purposive interpretation. Reference can be made to the following cases:

(1) P. Vaikunta Shenoy and Co. Vs. P. Hari Sharma,

(2) Standard Chartered Bank and Others etc. Vs. Directorate of Enforcement and Others etc.,

(3) Shubh Shanti Services Ltd. Vs. Manjula S. Agarwalla and Others,

In the case of New India Assurance Company Ltd. Vs. Nusli Neville Wadia and Another, the Apex Court has given preference to purposive interpretation than to principle of literal interpretation.

Now the question arises as to how to reconcile the amending notification to Section 8(5) of the Central Sales Tax Act. In the amending notification it has been specifically provided that the rate as prescribed for under U.P. Trade Tax Act shall be taken into consideration for the purposes of calculation of reduced rate of tax in respect of inter State transactions. In a given case, as in the present one, the rate of tax prescribed under U.P. Trade Tax Act on a particular commodity i.e. P.V.C. Sheets is 10% while the same commodity is taxable at the rate of 49c (with form C) under Central Sales Tax Act. Both Section 8(5) of the Central Sales Tax Act and the notification (as amended) may exist together without there being any conflict or disharmony where rate of tax as provided under U.P. Trade Tax Act is lesser than the one prescribed under Central Sales Tax Act. The difficulty arises only when a higher rate of tax is provided under the U.P. Trade Tax Act.

To overcome the said difficulty principle of reading down and of harmonious constructions, as delineated above would be attracted. The notification should be ''read down'' accordingly, otherwise the notification in question instead of achieving the object i.e. to provide exemption or reduction in the rate lesser of central sales tax would frustrate it. It should be read as referring to lower rate of tax as provided under the U.P. Trade Tax Act or under the Central Sales Tax Act.

In my considered view, the view taken by the Tribunal that the dealer opposite party is liable to pay the tax on central sales at the rate of 10% of 4% as prescribed under Central Sales Tax Act in the present case and not 10% of 10% as prescribed under U.P. Trade Tax Act, is legally correct.

Viewed as above, the order of the Tribunal is on terra firma and does not call for any interference in the present revision. The question of law as raised by the department is, therefore, decided against it and in favour of the dealer opposite party.

There is no merit in the revision. The revision is dismissed, but no order as to costs.