State of
U.P. & Anr Vs. Haji Ismail Noor
Mohammad & Co [1988] INSC 156 (9 May 1988)
Venkatachalliah,
M.N. (J) Venkatachalliah, M.N. (J) Pathak, R.S. (Cj)
CITATION:
1988 AIR 1409 1988 SCR Supl. (1) 261 1988 SCC (3) 398 JT 1988 (2) 468 1988
SCALE (1)1050
ACT:
U.P.
Sales Tax Act, 1948/U.P. Sales Tax Rules, 1948 Sections 3D and 4B/Rule
25A(5)-Tax-Special relief to dealer holding recognition certificate-Date of
actual issue of certificate immaterial-Dealer to be in possession of
certificate at assessment.
HEAD NOTE:
The
respondent "dealer" registered under the U.P. Sales Tax Act, 1948 was
carrying on the business of manufacture of oils from groundnuts and other oil
seeds, and was under section 3-D of the Act, liable to purchase-tax on oil
seeds at 3% ad valorem on the turnover of its purchases from the cultivators or
other unregistered dealers. Section 4-B of the Act contemplated special reliefs
in purchase-tax to certain manufacturers of 'notified goods', if the
"dealer holds a recognition certificate issued under sub-section (2) in
respect thereof". Sub-rule (5) of Rule 25-A of the U.P.
Sales
Tax Rules, 1948, however, stipulated that a 'recognition-certificate' issued
for purposes of Section 4-B of the Act "shall take effect from the date of
its issue." On 10.2.1969 the State Government notified oils of all kinds
to be "notified goods" for purposes of section 4-B entitling the
dealer to a concessional rate of purchase tax at 2% on the raw material
required for the manufacture of the "notified goods". On 21.3.1969,
respondent applied under section 4-B(2) for the grant of a recognition
certificate, which was granted only on 5.12.1969. The relief to the respondent
in the form of concessional rate of purchase tax was accordingly confined and
limited to the turnover of such first-purchases made only after 5.12.1969, the
date of issue of the recognition certificate.
In the
writ petition filed by the respondent, the Full Bench of the Allahabad High
Court, by majority, accepted its contention that the clause in sub-rule (5) of
Rule 25-A regarding the effective date of the recognition certificate was at
cross-purposes with and did not carry out the objects of Section 4-B and was
therefore, ultra-vires section 4-B.
The
High Court held that the requirements of section 4-B were substantially
complied with if the dealer, at the time of assessment, held a recognition
certificate, subject to the requirement that the turnover was after the date of
the application.
262
Before this Court the Revenue contended that the interpretation placed by the
High Court runs in the teeth of the express statutory language and the clear
intendment of the provision that the dealer should hold the 'recognition
certificate' at the time of the purchases.
Dismissing
the appeal, it was, ^
HELD:
(1)
There is nothing basically wrong in the approach of the High Court that the
statutory language does not insist upon the contemporaneity of the holding of
the certificate with the purchases and that it was suffcient if the dealer,
subsequently, came to hold a certificate "in respect thereof".
[267D-E]
(2) To
insist upon a contemporaneity would amount to qualifying the word 'holds' in
section 4-B by adding the words "at the time of the purchases".
[267E]
(3)
The words "in respect thereof" are "colourless words", but
in section 4-B they are, in their reference to the certificate, suffciently,
though non-specifically, wide enough to include a certificate obtained later
but pertaining to the turnover in question. [267F-G] (4) The rule which compels
only its prospective operation might, not unreasonably, be held to be
inconsistent with the ultra vires of section 4-B. There is nothing unreasonable
in this construction of section 4-B.
Indeed,
by the 1978 Amendment, this position has been made clear in the rule itself,
which after the amendment, expressly provides that the certificate will take
effect from the date of the application made by the dealer and not merely from
the date of the issue. [267G-H; 268A] Trustees v. IRC., [1946] 174 LT 133,
referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 768 (NT) of 1975.
From
the Judgment and Order dated 3.1.1973 of the Allahabad High Court in Writ
Petition No. 4225 of 1971.
S.C. Manchanda
and A.K. Srivastava for the Appellants.
NEMO
for the Respondents.
The
Judgment of the Court was delivered by 263 VENKATACHALIAH, J. This appeal by
certificate, preferred by the State of U.P. against the Judgment, dated,
3.1.1973 of the Allahabad High Court in W.P. No. 4225/1971, raises a short
question whether the Rule 25-A(5) of the U.P.
Sales
Tax Rules 1948 (Rules) in so far as it stipulates that a
'recognition-certificate' issued for purposes of Section 4-B of the U.P. Sales
Tax Act 1948 (Act) "shall take effect from the date of its issue" is
inconsistent with does not carry-out the purposes of and, therefore, is ultra-vires
Section 4-B of the U.P. Sales Tax Act 1948 (Act).
The
full bench of the Allahabad High Court, by a majority, has, by the judgment
under appeal, preferred this view.
2. So
far as the declaration on the law on the point is concerned, the matter loses
much of its edge in view of the relevant amendment brought about by the U.P.
Taxation Laws (Amendment & Validation) Act 1978, which now provides that
such a recognition certificate shall take effect from the anterior date of the
presentation of the application by the dealer. By the same amendment, the
certificate is rendered valid, for three successive assessment years at a time
and the renewals shall also be for like periods.
3. The
necessary and material facts are in a short compass and may briefly be stated:
Respondent Haji Ismail Noor Mohammad & Co. a registered firm of partners
was a "Dealer" registered under the Act. It, inter-alia, carried on
the business of manufacture of oils from groundnuts and other oil seeds. The
oil so manufactured was sold by the Dealer both intra-state; inter-state and by
way of export.
Under
Section 3-D of the Act, a dealer is liable to purchase-tax on oil seeds at 3%
ad-valorem on the turnover of the purchases made by the dealer from the
cultivators or other unregistered dealers. Section 4-B of the Act, however,
contemplates special reliefs to certain manufactures of notified goods, the
relief being in the form of concessional rate of purchase tax or exemption
there from, as the case may be, as notified by the State-Government if the
"dealer holds a recognition-certificate issued under sub-section (2) in
respect thereof." On 10.2.1969, the State Government notified that oils of
all kinds to be "notified goods" for purposes of Section 4-B and that
the purchases by the dealer, liable to tax on the turnover of the first purchases
shall be entitled to a concessional rate of tax at 2% on the 264 raw-material
required for the manufacture of notified-goods.
The
present controversy relates to the Dealer's entitlement to the concessional
rate of purchase tax respecting the purchase turn-over of its first-purchases
under the said notification.
4. On
21.3.1969, Respondent applied under Section 4- B(2) to the
prescribed-authority, in the prescribed-form for the grant of a recognition
certificate. The recognition certificate, for certain reasons, was granted only
on 5.2.1969. There appears no dispute that the turn-over of the first-purchases
of the Respondent, respecting which the claim for reduced-rate of tax was made,
constituted raw- material required for the manufacture of notified goods and,
therefore, satisfied the requirement of the notification.
However,
the relief was confined to the turnover of such first-purchases made only after
5.12.1969, i.e., the date of issue of the certificate and the relief in respect
of the turnover prior to that date was refused on the basis of the condition in
sub-rule 5 of Rule 25-A which provided that "such certificate shall take
effect from the date of its issue".
Respondent,
in its writ-petition before the High Court contended that this clause in
Sub-Rule (5) of Rule 25-A is at cross-purposes with and did not carry out the
objects of Section 4-B and is ultra-vires Section 4-B. The High Court, by majority
opinion, has accepted this contention.
5. The
provisions of Section 4-B and Rule 25A(5) may now be noticed:
"4-B.
Special relief to certain manufacturers.
(1)
Notwithstanding anything contained in sections 3, 3-A, 3-AA and 3-D:- (a) where
any goods liable to tax under section 3-D are purchased by a dealer who is
liable to tax on the turnover of his first purchases under that section and the
dealer" holds a recognition certificate issued under subsection (2) in
respect thereof," he shall be liable in respect of those goods to tax at
such concessional rate, or be exempt from tax, as may be notified in the
Gazette by the State Government in that behalf;
265
(b) where any goods liable to tax under any other section are sold by a dealer
to another dealer and such other dealer furnishes to the selling dealer in the
prescribed form and manner a certificate to the effect that he holds a
recognition certificate issued under sub-section (2) in respect thereof, the
selling dealer shall be liable in respect of these goods to tax at such concessional
rates, or be exempt from tax as may be notified in the Gazette by the State
Government in that behalf.
(2) A
dealer who requires any goods referred to in sub-section (1) for use as raw
material for the purposes of manufacture in the State of Uttar Pradesh of any
notified goods, and such notified goods are intended to be sold by him in the
State or in the course of inter-state trade or commerce or in the course of
export out of India, may apply within such period, and in such form and manner,
as may be prescribed, to the assessing authority for the grant of recognition
certificate in respect thereof and if the applicant satisfied such requirements
and conditions as may be prescribed, the assessing authority shall grant to the
dealer in respect of such goods a recognition certificate in such form and
subject to such conditions as may be prescribed." Sub-Rule 5 of Rule 25-A
provides:
"25-A(5).
The recognition certificate shall ordinarily be issued within 30 days of the presentation
of the application to the Sales Tax Officer. If, however, it may not be
possible to issue the certificate within the time specified above, the Sales
Tax Officer shall obtain the approval of the Assistant Commissioner (Executive)
of his range for an extension of time, after stating the reasons for which it
is not possible to issue the certificate in time. Such certificate shall take
effect from the date of its issue." (underlining supplied) In reaching
such conclusion on the point as it did the reasoning that commended itself to
the High Court was this:
"....
The efficacy of the recognition certificate under clause (a) aforesaid becomes
material and relevant at the time of the quantification of the purchase tax,
i.e., when 266 the assessment order is being drawn up. It is in the assessment
proceedings that the liability to pay tax at a concessional rate is fructified.
A dealer would be entitled to the concessional rate if he holds a recognition
certificate........." "........ The language of clause (b) does not
make it a condition precedent or a necessary obligation that the purchasing
dealer must at the time of the purchase produce the recognition certificate. If
the purchasing dealer, subsequent to the transaction of purchase, furnishes to
the selling dealer the certificate that he holds a recognition certificate, the
requirements of clause (b) are fully satisfied." The High Court also took
into account that sub-Rule 5 of Rule 25-A while rightly recognising the need
for the issue of the certificate with due despatch and within a time bound
schedule, could not, consistently with the scheme and purpose of Section 4-B,
provide that the certificate shall take effect only from the date of its issue.
6. Shri
Manchanda, learned Senior Advocate appearing in support of the appeal,
contended that the interpretation placed by the High Court runs in the teeth of
the express statutory language which stipulates that "the dealers holds a
recognition certificate" and the interpretation placed on it by the High
Court, if accepted, would have the effect of adding something to the language
of the section which is not in the Section. Learned Counsel said that the High
Court had, by the judgment, virtually introduced a fiction that under certain
circumstances where there had been a delay in issuing the certificate, the
dealer must be deemed to have held the certificate.
Shri Manchanda
submitted that the clear intendment of the provision was that the dealer should
hold the 'recognition-certificate' at the time of the purchases and that it
would not be sufficient compliance with the statute if the dealer comes to hold
it subsequently. He accordingly commended the view that found favour with the
learned judge in the minority in the High Court.
We did
not have the benefit of the arguments from the side of the respondent, which
has remained unrepresented.
7. It
is really a matter of construction of the language of Section 267 4-B; whether
the dealer should hold a recognition certificate at the time the purchases were
made or whether the requirements of the 'Section should be held to be satisfied
if the dealer holds such a "recognition certificate" at the time of
the assessment of the turnover in question. The High Court has held that the
requirements of the Section are substantially complied with if the certificate
is available to the dealer at the time the liability to tax of the turnover in
question is sought to be determined, subject to the requirement that the
turnover is after the date of the application filed by the dealer for issue of
a certificate. According to the High Court, the date of actual issue of the
certificate should not be held to be material and that the benefit for the concessional
rate of tax should be available to the dealer if the dealer, at the time of the
assessment, holds a recognition certificate "in respect thereof'.
According to the High Court the language of Section 4-B does support the
extreme construction that the recognition certificate should be held at the
time of the purchases themselves.
8. On
a consideration of the matter we are persuaded to the view that the
construction placed on the provision by the High Court is an eminently
plausible one. There is nothing basically wrong in the approach of the High
Court that the statutory language does not insist upon the contemporaneity of
the holding of the certificate with the purchases and that it is sufficient if
the dealer, subsequently, comes to hold certificate "in respect
thereof". It seems possible to say that to insist upon a contemporaneity
of the purchases and the certificate would also amount to qualifying the word
'holds' in the section by adding the words "at the time of the
purchases".
It is true,
the words "in respect thereof" as Lord Greene M.R. said are "colourless
words", See Trustees v.
IRC,
[1946] 174 LT 133 but in Section 4-B, they are in their reference to the
certificate, sufficiently, though non- specifically wide enough to include a
certificate obtained later but pertaining to the turnover in question. If this
is the scheme of Section 4-B in that it does not exclude from its contemplation
the efficacy and sufficiency, for its purpose of a certificate issued
subsequently, then, the rule which compels only its prospective operation
might, not unreasonably, be held to be inconsistent with and ultra- vires of
Section 4-B. We find therefore nothing unreasonable in this construction of
Section 4-B. Indeed by the 1978 Amendment, this position has been made clear in
the rule itself which, after the amendment, expressly provides that the
certificate will take effect from the 268 date of the application made by the
dealer and not merely from the date of the issue.
9. In
this view of the matter, the judgment of the High Court does not call for
interference. The appeal is dismissed. However, there will be no order as to
the cost.
R.S.S.
Appeal dismissed.
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