Supreme Court of India
ASSOCIATED CEMENT CO. LTD.versusCOMMERCIAL TAX OFFICER, KOTA & ORS.
- Citation
- 1981 INSC 157
- Decided
- 2 September 1981
- Disposal
- Case Partly allowed
- Bench
- P N BHAGWATI
Holding
Penalties for non‑deposit of tax on freight in the original returns are unsustainable and are set aside, but interest under section 11B is payable.
Summary
Associated Cement Co. Ltd., a cement manufacturer, filed its sales‑tax returns for 1973‑74 under the Rajasthan Sales Tax Act and the Central Sales Tax Act without including freight charges, believing they were not taxable. After the Supreme Court in Hindustan Sugar Mills Ltd. v. State of Rajasthan held that freight forms part of the sale price, the company filed revised returns in October 1978 and paid the additional tax. The assessing authority then levied penalties under section 7AA of the Rajasthan Act and interest under section 11B for the delay in depositing tax on the freight. The company appealed, contending that penalties were unsustainable and that interest should not accrue because the tax was payable only after assessment. The Court held that penalties for not depositing tax on freight in the original returns were untenable and set them aside, but affirmed that interest under section 11B was payable from the date the tax became due. Consequently, the appeal was allowed in part: penalties were quashed, while the liability to pay interest was upheld.
Issues considered
- The assessing authority's power to impose penalty under section 7AA for failure to deposit tax on freight charges at the time of filing the original returns.
- Whether the assessee is liable to pay interest under section 11B of the Rajasthan Sales Tax Act for the period between filing the original return and payment of tax on freight via the revised return.
Legislation cited
- Central Sales Tax Act, 1956s. 9, s. 9(2)
- Rajasthan Sales Tax Act, 1954s. 10, s. 11B, s. 7, s. 7AA
- Rajasthan Sales Tax Rules, 1955s. Rule 25
Subjects
sales taxfreight chargespenaltyinterestself‑assessmentRajasthan Sales Tax Actassessment orderrevised returntax liability
Judgment
563
ASSOCIATED CEMENT CO. LTD. A
v.
COMMERCIAL TAX OFFICER, KOl A & ORS.
September 2, 1981
B
[P.N. BHAGWATI, A.P. SEN & E.S. VENKATARAMIAH, JJ.]
Rajasthan Sales Tax Act 1954 Ss. 7AA, 10, JIB and Central Sales Tax Act
1956, S. 9-Scope of.
Assessee not depositing the tax in respect of amount of freight at the time of
filing original return-Revised return filed and tax deposited-Assessing authority C
whether competent to inipose penalty-Assessee whether liable to pay interest on
the tax due.
The appellant-assessee a company manufactured cement which was sold
partly in the State of Rajasthan and partly outside the State. The sales tax
returns relating to the sales were filed by the assessee under the Rajasthan Sales
Tax Act, 1954 and under the Central Sales Tax Act 1956 before;; the Assessing D
Authority for the period August 1, 1973 to July 31, 1974 i.e. for the assessment
year 1974-75. In those returns the assessee did not include in the taxable turn..
over the freight charges paid in respect of the goods sold under the bona fide
impression that freight charges were not to be so includible in the taxable turn-
over in view of certain decisions rendered by the High Courts and the Supreme
A
Court.
E
The Supreme Court on August 29, 1978 in Sugar Mills Limited v. State of
Rajasthan and others [1979] 1 SCR 276 held that freight charges formed part of
the sale price and were includible in the taxable turn-over of an assessee and that
sales tax was payable thereon.
Coming to know of the aforesaid decision the assessee prepared and filed
the revised returns in respect of the assessment year 1974-75 before the Commer- F
cial Tax Officer on October 20, 1978 including freight charges in the turn-over
and also deposited alongwith the revised returns, challans showing payment of
the balance of the tax payable under the State Act as well as under the Central
Act.
The assessing authority passed two orders of assessment one under section
10(3) of the State Act and the other under section 9 of the Central Act. The G
former order of assessment levied a penalty of Rs. 53,353 under section 7AA of
the State Act on account of the delay in depositing the sales tax payable in
respect of the amount of freight charges and also levied interest of Rs. 85910/-
under s. llB of the State Act. In the latter order of assessment a penalty of
Rs. 1,34,205/~ was levied under section 7AA of the State Act read with section
9(2) of the Central Act for the delay in depositing the tax payable in respe<t of H
the freight charges, and interest of Rs. 2,07,174/- was levied under section 11 B
of the State Act read with section 9(2) of the Central Act,
564 SUPREME COURT REPORTS ( 1982] ] S.C.R.
A In the appeals to this Court on the question whether : (A) the Assessing
Authority was right in imposing penalty on the assessee under the two assessment
orders for not depositing the tax in respect of the an1ount of freight at the time
of filing of the original returns under the State Act and the Central Act, and (B)
the assessee was liable under section llB of the State Act to pay interest on the
tax in res::iect of the amount of freight for the period between the date of filing
of the original return and the date when such tax was actually paid while filing
8 the revised return. ,
HELD : [By the Court]
(A) The levy of penllties for not including the freight charges in the
taxable turnover ifl the original returns and for not paying the tax in respect of
such freight charges is unsustainable and the two orders of assessment in so far
c as they levy penalty are liable to be quashed and set aside. (571 B, .589 B]
-.
Cen1ent Marketing Co1npany of India Limited v. Co1n1nissioner of Sales Tax
Indore (1980] l SCR 1098 referred to.
[per Bhagwati J. dissenting]
D B(lJ So long as the assessee pays the a1nount of tax which according to
him is due on the basis of tbe return filed by him, there would be no default on
his part in complying with the obligation under sub-section (2) of section 7 and
there would be no liability on him to pay interest under section lJB clause (a),
because he would have paid the amount of tax quantitied by him through the
process of self-assessment. The actual amount of tax payable by the assessee would
be determined only when it is assessed by the Assessing Authority under section
..
E 10 and that would not be payable until the expiration of the period specified in
the notice of demand or thirty days from the date of service of such notice, as
the case may be. [584 D-E]
(2) Since the assessee ·deposited the amounts of tax which according to
him were due on the basis of the returns actually filed by him and the returns
were accompanied by receipts showing deposit of such amounts of tax, there
was no default on the part of the assessee in paying the amounts of tax payable
under sub.section (2) of section 7 within the actual period allowed and in the
circumstances no interest was payable by the assessee under section llB clause (a).
[586 F·G]
State of Rajasthan v. Ghasi Lal [1965] 2 SCR 805 relied on.
G 3. When the assessment"'is made and the tax payable by an assessee is
determined, the tax so determined does not become payable until after a notice
of demand is served by the Assessing Authority under section 11 sub-section (2)
read with Rule 31 of the Rajasthan Sales Tax Rules 1955. The assessee is allowed
time to make payment upto the date specified in the notice of den1and and if no
such date is specified, then within thirty days from the date of service of the -
ff notice. So long the assessee pays up the amount of the tax assessed within the
time specified in the notice of demand or within thirty days from the date of
service of the notice, as the case may be, he would not be in default and hence
ASSOCIATED CEMENTV;C.T;O .. 56)
So-1 lB clause (b) provides that the ·asses:see wou\U be Hable to:pay interest on the A
tax assessed only if the amount of. such tax is not paid .within the period-specified
in.the notice of demand or in the absence of such specification, within thirty days
from the date of service of such notice and then too, the liability to pay interest
would commence not from the date of the assess1nent, but from the day cornmenc·
ing after the end of the said period, that is, the period specified in the· notice.of
demand or thirty days from the date of service of such notice, as the case may be·.
Thus even after the assessment is made and the tax_ payable by an assessee is B
determined, the assessee is not-liable to pay interest on the amount of such tax
until .after the period specified in the notice of demand or in the absence such
specification, thirty days from the date of service of such notice, have expired.
[574 D-H]
4. The language used in sub-section (2) of section 7 is "full amount of tax
due on the basis of return". The "return" is the return filed by the assessee
under sub-section (1) of section 7. When sub-section (l) of section 7 requires c
an assessee to file a return, the return filed nlust be correct and proper. If the
return is not correct and proper, the Assessing Authority may not give credence
to the return and may refuse to assess the 1ax on the basis of the return and if
the Assessing Authority finds that the assessee has concealed any particulars
from the return furnished by him or has de-liberately furnished inadequate parti-
culars in the return the Assessing Authority may levy penalty on the a.ssessee
under section 16, sub-section (l) clause (e) and the assessee may also be liable to D
be punished for an offence under section 16, sub-section (3) clause (d) for making
a false statement in the return. Whether the return filect be correct or not, the tax
payable by the assessee under sub-section (2) of section 7 would be the full
.. amount of tax due on the basis of the return. The return actually filed by the
assessee must be looked into in order to see what is the full amount of tax due
on the basis of such return. It is not the assessed tax nor is it the tax due on the
basis of a return which ought to have been filed by the assessee but it is the tax E
due according to the return actually filed that is payable under sub-section (2) of
section 7. This provision is real1y in the nature of self-assessment and what it
requires is that whatever be the amount of tax due on the basis of 'self-assessment
must be paid up along with the filing of the return which constitutes self-
assessrnent. The plain words of sub-section (2) of section 7 cannot be tortured
to mean full amount of tax due on the basis of return which ought to have been
filed but whieh has not been filed. [576 B·F]
5. The legislature could never have intended that the assessee should be
liable on pain of imposition of penalty, to deposit an amount which is yet to be
ascertained through assessment. How would the assessee know in advance what
view the Assessing Authority would take in regard to the taxability of any parti-
cular category of sales or the rate of tax applicable to them and deposit the
amount of tax on that basis ? Even in regard to the liability to pay interest, it G
does not stand to reason that the legislature should have subjected the assessee to
such liability for non-payment of an amount of which the liability for payment is
still to be ascertained, [577 E-G]
6. The tax payable under sub-se.:tion (2) of section 7 deall with in H
clause (a) of section llB cannot, be equated with the amount of the tax
assessed forming the subject matter of clause (b) of section llB and hence it must
566 SUPREME COURT REPORTS [1982) I s.c.R.
A be tax due on the basis of the return actually filed by the assessee and not on the
basis of a correct and proper return which ought to have been filed by him.
[578 G-H]
7. The scheme of taxation envisaged in the State Act clearly shows that
it is only when the assessment is made and the period specified in the notice of
demand or in the absence of such specification, thirty days from the date of
B service of such notice expires, that the amount of tax as assessed becomes payable
by the assessee and its payn1ent can be enforced by the Revenue. What becomes
payable by the assessee under sub-seccion (2) of section 7 is merely the tax due
on the basis of the return actually filed by the assessee that is, on the basis of
self-assessment. rs79 F-G]
c
8. On a true construction of the provisions of the State Act tax becomes
due from the assessee and is payable by him only when it is ascertained by the
Assessing Authority under section 10 or by the assessee under section 7(2). Till
..
then there is only the Jiabilily of the assessee to be assessed to tax and no tax can
be said to be payable by the assessee. The tax payable is ascertained when the
assessment is made by the Assessing Authority under section JO or \vhen the
assessee himself quantifies it through the process of self-assessment under sub-
D section (2) of section 7. These two amounts of tax may and in quite a number
of cases would be different because one is ascertained by the Assessing Authority
through the process of assessment and that is why sub-section (4) of section 7
provides that every deposit of tax made under sub-section (2) shall be deemed to
be provisional subject to necessary adjustments in pursuance of final assessment
of tax made under section 10. This provision clearly contemplates that the tax
payable under sub-section (2) of section 7 may be different from the tax assessed
E under section 10 and it cannot, therefore, obviously be the tax due on the basis
of a correct and proper return but must be the tax due on the basis of the return
actually filed. [580 D-G] ·
9(i) It is clear from the language of sub-section (2) of section 7 that it is
only on the filing of the return that the liability to pay the tax due on the basis
of the return arises. If no return is filed within the prescribed time, it would
F undoubtedly constitute a default attracting penalty under section 16, sub-section
ll) clause (n) but there would be no liability on the as5¢ssee to pay interest on
the amount of the tax, because the liability to pay the tax due on the basis of the
return under sub-section (2) of section 7 can arise only when the return is filed,
There is no liability on the assessee to pay any amount by way of tax until the
return is filed or the assessment is made. [581 H-582 B]
(ii) It can neither be held that section 7 sub-section (2) is attracted even
G when no return has been filed. It is clear that until the assessee files a return or
assessment is made, no tax is payable by the assessee, because till then there is
only a liability to be asse5sed to tax. The conclusion that a registered d~alcr
who does not file any return at all as required by sub-section (I) of section 7
would still be liable to pay the amount of tax and if he does not pay the san1e
before the due date for filing the return, he would be liable to pay interest under
H section ll(bl clause (a) cannot be accepted. This would be contrary to the
decision of this Court in State of Rajasthan v. Ghasi La/[1965] 2 SCR 805.
[582 C·FJ
ASSOCIATED CEMENT V. C.T.O. 567
(per A.P. Sen and Venkataramiah, JJ] A
B(l). The statutory liability under section llB arises wherever there is
default in payment of the tax within the period allowed by law irrespective of
any doubt which an assessee may be entertaining about the liability to pay the tax.
[604 D-E]
3tate of Rajasthan v. Ghasi Lal [1965] 2 SCR 805 distinguished. B
,
2. Tax, interest and penalty are three different concepts. Tax becomes
payable by an assessee by virtue of the charging provision in a taxing statute.
Penalty ordinarily becomes payable when it is found that an assessee has wilfully
violated any of the provisions of the taxing statute. Interest is ordinarily daimed
from an assessee who has withheld Payment of any tax payable by him and it is
always calculated at the prescribed rate on the basis of the actual amount of tax
withheld and thC extent of delay in paying it. It may not be wrong to say that
c
such interest is compensatory in character and not penal. [594 D~E]
3. Registered dealers can be classified into the following different classes :
(1) A registered dealer who files his return showing a higher taxable turnover
than the actual turnover which is ultimately found to be taxable at the time of
regular assessment and who pays tax under section 7(2) of the Act on the basis D
of the return. (2) A registered dealer who files a true and proper return and
pays tax on the basis of such return within the time allowed. (3). A registered
dealer who does not file any return at all as required by section 7(1) and pays
no tax under section 7(2) of the Act. (4). A registered dealer who files a true
return but does not pay the full amount of tax as required by section 7(2), and;
(5) A registered dealer who files a return but wrongly claims either the whole or
any part of the turnover as not taxable and pays under section 7(2) of the Act
that amount of tax, which according to him is payable, on the basis of the return.
In the case of a registered dealer falling ·under class (l) no question of payment
of interest would arise as the amount of tax paid by him at the time of filing
the return is much more than what is actually due and payable by him under the
Act. The extra tax paid by him becomes refundable after the regular assessment
is completed in view of section 7(4) of the Act. In the case of a registered dealer
faHing under clause (2) also no question of payment of interest arises as there is F
no shortfall in payment of the tax. [594 F-5950]
4. A fair reading of section llB of the Act suggests that the Act expects
that all assessees who are liable to pay sales tax should file a true return within
the period prescribed undert:sub-section (1) of section 7 and should produce a
treasury receipt or a receipt of any bank authorised to receive money on behalf
of the State Government showing that full amount of tax due from them has been G
paid. [595 H-596 A ]
5, It is settled law that a distinction has to be made by court while
interpreting the provisions of a taxing statute between charging prov1s1ons
which impose the charge to tax and machinery provisions which provide the
machinery for th~ quantification of the tax and the levying and collection of the H
tax so imposed. While charging provisions are construed strictly, m1chinery
sections are not generally subject to a rigorous construction. The courts are
5<i8 SUPREME COURT REPO~TS [1982] I S.C.R.
expected to construe the machinery sections in such a manner that a charge to
tax is not defeated. [596 C·D]
India U'nited Mills Ltd. v. Commissioner of Excess Profits Tax, Bombay
[1955) 1 S.C.R. 810, Gursahai Saigal v. Commissioner of lncon1e-tax Punjab [1963]
3 S.C.R. 893 Commissioner of lncome-taX v. Mahaliram Ramjidas, A.LR. 1940 P.C.
124 and Whitney v. Commissioners of Inland Revenue [1926] A.C. 37, referred to.
B 6. If the words 'on the basis of return' occurring in sub-section (2) of
section 7 of the Act are construed as on the basis of a true and proper return
which ought to have been filed under sub-section (1) of section 7 then all the three
classes of persons viz (i) those who have not filed any return at all and who are
Jater on found to be liable to be assessed, (ii) those who have filed a true
return but have not deposited the full amount_ of tax which they are liable to pay
and (iii) those who filed a return making a \Vrong claim that either the whole or
c any part of the turnover is not taxable and who are subsequently found to have
made a wrong claim, would be placed in the same position and they would aJJ
be liable to pay interest on the amount of tax which they are liable. to pay but
have not paid as required by sub-section (2) of section 7 of the Act. This view
is in conformity with the legislative intention in enacting section 1lB of the Act.
[599 A-CJ
D 7. In cases to which section 7(2) of the Act applies interest has to be paid
on the tax payable but which has not been paid from the last date on which the
return has to be filed for the assessment year in question and in cases to which
sub-section (2A) is applicable, from the last date on which the advance tax has
to be paid. The amount of interest has however to be calculated after the actual
amount of tax payable is assessed and necessary adjustments are made. [609 B-C]
E 8. Either by delaying the filing of the return or not filing it all or by
filing a return wrongly claiming that a certain part of the turnover is not taxable
or by not disclosing a part of the taxable turnover in the. return an assessee
cannot escape the liability to pay interest under section 11B on the amount of
tax withheld, as a consequence of his own action or inaction, from the last date
on which it had to be paid as per sub-section (2) or sub-section (2A) of section
7, as the case may be, read with the Rules. An assessee cannot contend that
interest does not accrue under section llB on the tax payable by him where the
time to file the return has elapsed until he actually files a return admitting the
liability to pay such tax or until assessment is made. [604 B-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 852 of
1980.
G From the Assessment orders dated the 30th January, 1980 of
the Commercial Tax Officer, Sp!. Circle Kola, (Rajasthan) for the
assessment year 1974-75.
Soli J. Sorabji, B.R. Agarwal and P. G. Gokhale for the
H Appellants.
S. T. Desai and B. D. Sharma for the Respondents.
ASSOCIATED CEMENT v. C.T.O. (Bhagwati, J) 569
The Judgment of A.P. Sen arid E. S. Venkataramiah JJ. was A
delivered by Venkataramiah J. P. N. Bhagwati, J .. gave a dissenting
opinion.
BHAGWATI, J. I have had the advantage of reading the Judg-
ment prepared by my learned brother Venkataramiah J., but despite
the great respect which I have for his learning and erudition, I find
myself unable to agree with the view taken by him. The facts
giving arise to this appeal are not very material because the question
which arises for consideration is essentially one of law, but the
factual setting does help to see the question in its proper perspective
and hence it would be useful to set out a few material facts.
The assessee is a public limited company carrying on business
c
of manufacture and sale of cement. It has a factory for manufac-
turing cement at Lakheri in the State of Rajasthan and it effects
sales of cement both inside as well as outside the State of Rajasthan.
Since some of the sales effected by the assessee were inside the State
of Rajasthan and some others were inter-state sales, the assessee D
filed returns of sales for the quarters comprised in the period !st
August 1973 upto 31st July 1974 both under the Rajasthan Sales
Tax Act 1954 (hereinafter referred to as the State Act) and the
Central Sales Tax Act 1956 (hereinafter referred to as the Central
Act). The assessee did not include in the taxable turn-over shown
in the returns the amount of freight paid in respect of the goods E
sold under the bonafide impression that the amount of freight did
not form part of the sale price and was not includible in the taxable
turn-over of the assessee. This impression was carried by the
assessee in view of certain decisions which had been given by some
High Courts as well as the Supreme Court and particularly the
decision of the Supreme Court in Hyderabad Asbestos Cement F
Products Limited v. State of Andhra Pradesh('). The assessee paid
up for each quarter the full amount of tax calculated on the basis
of the return submitted by it and the receipt for such payment was
filed alongwith the return. The amount of tax paid by the assessee
obviously did not include tax on the amount of freight, since
according to the assessee the amount of freight did not form part G
of the sale price and was accordingly not shown in the returns as
forming part of the taxable turn-over. Subsequently however, the
question whether the amount of freight formed part of the sale
price and was therefore includible in the taxable turn-over of the
assessee so as to be exigible to tax came up for consideration before H
(1) 24 S.T.C. 487.
570 SUPREME COURT REPORTS (I 982) I s.c.R.
A this Court in Hindustan Sugar Mills Limited v. State of Rajosthan
and others(') and it was held by this Court that by reason of the
provisions of the Cement Control Order 1967 which governed the
transactions of sale of cement entered into by the assessee with the
purchasers, the amount of freight formed part of the sale price
within the meaning of the first part of the definition of that term
B contained in section 2 (p) of the State Act and section 2 (h) of the
Central Act and was includible in the taxable turn-over of the asses-
see. As soon as this decision was given by the Court on 29th August '
1978, the asse$see immediately prepared revised returns in respect of ;
the period Isl August 1973 upto 31st July 1974 showing the amount
of freight as forming part of the taxable turn-over and filed the
c same before the Commercial Tax Officer, Special Circle, Kola on _,,'
20th October 1978. The assessee also deposited alongwith the re-
vised returns challans showing payment of the balance of the tax 17'
on the basis of the revised returns under the State Act as well as the
Central Act. Two orders of assessment were thereafter passed by the &
D
As~essing Authority, one under section IO sub-section (3) of the
State Act and the other under section 9 of the Central Act. The " \;;
former order of assessment levied a penalty of Rs. 53,355 under
section 7AA of the State Act and interest amounting to Rs. 85,910.50
under section l IB of the State Act for the delay in pa}ment of the
tax in respect of the amount of freight under State Act, which
according to the Assessing Authority ought to have been deposited •
E alongwith the filing of the original returns. Similarly, the latter
order of assessment also levied a penalty of Rs. 1,34,205 under
section 7 AA of the State Act read with section 9 sub-section (2) of
the Central Act and interest amounting to Rs. 2,07,174 under
section l IB of the State Act read with section 9 sub-section (2) of
the Central Act for the delay in depositing the tax payable in respect
F of the amount of freight under the Central Act. The assessee has
in the present appeal preferred with special leave challenged the
validity of both these orders of assessment in so far as they levy
penalty and interest on the assessee.
G
The first question which arises for consideration before us is
whether the Assessing Authority was right in imrosing penalty on
the assessee under the two assessment orders for not depositing the
tax in respect of the amount of freight at the time of filing of the
original returns under the State Act and the Central Act. My
H
(!) [1979] I S.C.R. 276.
ASSOCIATED CEMENT v. C.T.O. (Bhagwati, J.) 571
learned brother Venkataramiah has held, following the decisio" of A
this Court in Cement Marketing Company of India Limited v. Com-
missioner of Sales Tax, Indore(') that "the levy of penalties for not
including the freight charges in the taxable turn-over in the original
returns and for not paying the tax in respect of such freight charges,
is unsustainable" and that the two orders of assessment in so far as
they levy penalty on the assessee are liable to be quashed and set B
aside. I entirely agree with the view taken by him and I do not
r think T can usefully add anything to what he has said,
The next question that arises for consideration is whether the
assessee was liable under section 1!B of the State Act to pay interest
on the tax in respect of the amount of freight for the period between c
the date of filing of the origi"al return and the date when such tax
was actually paid while filing the revised return. The contention of
the.revenue was that the assessee was so liable and this contention
was sought to be supported by relying on section 2 sub-sections (I)
and (2) read with section 11 B of the State Act. The same provisions
with section 9 sub-section (2) of the Central Act were also relied D
upon for the purpose of sustaining the Revenue's claim for interest
under the Central Act. The determination of the question before
us therefore really turns on the true interpretation of section 7 sub-
section (I) and (2) read with section l IB of the State Act. Section
7 of the State Act as it stood at the material time was in the follow-
ing terms : E
"7. Submission of returns : (!)Every registered dealer,
and such other dealer, as may be required to do so by the
assessing authority by notice served in the prescribed
manner, shall furnish prescribed returns, for the prescribed
periods, in the prescribed forms, in the prescribed manner F
and within the prescribed time to the assessing authority;
Provided that the assessing authority may extend the
date for the submission of such returns by any dealer or
class of dealers by a period not exceeding fifteen days in
the aggregate. G
(2) Every such return shall , be accompanied by a
Treasury receipt or receipt of any bank authorised to receive
money on behalf of the State Government, showing the
H
(1) [1980] 1 S.C.R. 1098.
572 SUPREME COURT REPORTS [1982] ] S.C.R.
A deposit of the full amount of tax due on the basis of return
in the State Government Treasury of bank concerned.
(2AJ Notwithstanding anything contained in sub-section
(2), the State Government may by notification in the official
Gazette require any dealer or class of dealers specified
B therein, to pay tax at intervals shorter than those prescribed .
under sub-section (I). In such cases, the proportionate tax
on the basis of the last return shall be deposited at the '
intervals specified in the said notification in advance of the
return. The difference if any, of the tax payable according
to the return and the advance tax paid shall be deposited
c with the return and the return shall be accompanied by the
treasury receipt, or receipts, of any Bank authorised to
receive money on behalf of the State Government, for the
full amount of tax due shown in the return.
(3) If any dealer discovers any omission, error, or
D wrong statement in any returns furnished by him under
sub-section (1), he may furnish a revised return in the
prescribed manner before the time prescribed for the sub·
mission of the next return but not later.
Section l IB of the State Act during the relevant period provided •
E inter alia as under :
"l IB. Interest on failure to pay tax, fee or penalty-
(a) If the amount of any tax payable under sub.sec-
tions (2) and (2A) of section 7 is not paid within
F the period allowed, or
(b) If the amount specified in any notice of demand,
whether for tax, fee, or penalty, is not paid within
the period specified in such notice, or in the
absence of such specification, within 30 days from
G the date of service of such notice, the dealer shall
be liable to pay simple interest on such amount
at one per cent per month from the day com-
mencing after the end of the said period for a
period of three months and at one and a half per
H cent per month thereafter during the time he
continues to make default in the payments;
ASSOCIATED CEMENT v. C.T.O. (Bhagwati, J.) 573
Provided that, where, as a result of any order under A
this Act, the amount, on which interest was pay-
able under this section, has been reduced, the
interest shall be reduced accordingly and the
excess interest paid, if any, shall be refunded:
Provided further that no interest shall be payable B
under this section on such amount and for such
period in respect of which interest is paid under
the provisions of sections I J and 14.
These are the two sections which fall for construction but in order
to arrive at their true meaning and legal effect it is necessary to refer '.C
to a few other provisions of the State Act. Section 3 is the charging
section and it creates the liability to pay tax. That is the normal
function of a charging section in a taxing statute. But, of itself, it
does not make the tax payable by an assessee. It is only when the
tax which an assessee is liable to pay is ascertained that becomes D
payable by the assessee. Now tLe ncrmal mode by which the tax
payable by an assessee is ascertained is by the process of assessment
which is provided in section 10 Sub-section (1) clause (a) of section
IO says that assessment and determination of tax due for any year
shall be made after the returns for all the periods of that year have
• become due. Section 11 then provides for payment and recovery
E
of tax and its provisions in so far as material read inter alia as
follows:
"11. Payment and recovery of tax:(!) The tax shall be
payable by a dealer on the basis of the assessments. F
> (2) The tax paid by a dealer shall be adjusted against
tbe judgment determined as a result of the assessment under
section 10 and the balance of the amount shall be payable
by such dealer by such date as may be specified in the
notice of demand and, where no such date is specified, G
shall be paid within thirty days from the date of service
of the notice.
Provided that the assessing authority may, subject to
such conditions and restrictions as may be prescribed, in
respect of any particular dealer, and for reasons to be re- H
·,.._ corded in writing, extend the date of such payment and
574 SUPREME COURT REPORTS [1982] 1 S.C.R.
A allow such dealer to pay the tax due and the penalty, if
any, by instalments.
(3) In default of the payment of tax payable under
sub-section (I) or sub-section (2), the amount of tax shall
be recoverable as an arrear of land revenue.
B
Provided further that where recovery of tax or any
part thereof is stayed under the preceding proviso, the
c amount of such tax shall be recoverable with interest at
the prescribed rate on the amount ultimately found due;
and such interest shall be payable on such amount from the
date of tar. first become due."
When the assessment is made and the tax payable by an assessee
D is determined, the tax so determined does not become payable until
after a notice of demand is served by the Assessing Authority under
section 11 sub-se:tion (2) read with Rule 31 of the Rajasthan Sales
Tax Rules 1955 made by the Government of Rajasthan in exercise
of the powers conferred under section 26 of the State Act and then •
the assessec is allowed time to make payment up to the date specified
E in the notice of demand and if no such date is specified, then within
thirty days from the date of service of the notice. So long the
assessee pays up the amount of the tax assessed within tire time
specified in the notice of demand or within thirty days from the
date of service of the notice, as the case may be, he would not be
in default and hence section l IB clause (bl provides that the •
F assessee would be liable to pay interest on the tax assessed only if
the amount of such tax is not paid within the period specified in
the notice of demand or in the absence of such specification, within
thirty days from the date of service of such notice and then too,
the liability to pay interest would commence not from the date of
assessment, but from "the day commencing after the end of the
G said period" that is, the period specified in the notice of demand or
thirty days from the date of service of such notice, as the case may
be. Thus even after the assessment is made and the tax payable
by an assessee is determined, the assessee is not liable to pay interest
H on the amount of such tax until after the period specified in the
notice of demand or in the absence such specification, thirty days
from the date of service of such notice, have expired.
ASSOCIATED CEMENT v. c.r.o. (Bhagwati, J.) 575
Turning now to sub-section (I) of section 7 it requires every A
registered dealer to furnish prescribed returns for the prescribed
period, in the prescribed forms, in the prescribed manner and within
the prescribed time to the Assessing Authority. It was not disputed
on behalf of the Revenue that in the present case the prescribed
returns in the prescribed forms were furnished by the assessee in
time for the quarter comprised in the period !st August 1973 to
• 31st July 1974, the only grievance in regard to those returns
being that the amount of freight was not shown as forming part of
the taxable turnover. Sub-section (2) of section 7 provides that
every return furnished by the assessee must be accompanied by a
receipt showing the deposit of the full amount of tax due on tho
basis of the return and the assessee accordingly deposited the full c
amount of tax calculated on the basis of each quarterly return a.1d
filed the receipt showing such deposit alongwith the return. Since,
according to the view taken by the assessee at the time of filing the
original returns, the amount of freight did not form part of the
sale price, it was not included in the taxable turnover shown in the
original returns and hence no tax on the amount of freight was
D
deposited by the assessee while filing the original returns. It was
only after the decision of this Court in Hindustan Sugar Mills
Limited Company's case (supra) that the assessee filed revised returns
• including the amount of freight in the taxable turnover and deposited
the balance of the tax on the basis of the revised returns. The
argument of the Revenue was and that is the argument which has
E
appealed to my learned brother, Venkataramiah, that the words
"full amount of tax due on the basis of return" in sub-section (2)
of section 7 meant the full amount of tax due on the basis of a
true and proper return which ought to have been filed by the
assessee and not the full amount of tax due on the basis of the
return actually filed and since the amount of the freight was liable
F
to be included in the taxable turnover and hence in a true and
proper return, the "full amount of tax due on the basis of return"
within the meaning of sub-section (2) of section 7 included the tax
on the amount of freight and the assessee therefore ought to have
deposited the same at the time of filing, the original returns, and
since the assessee failed to do so, section I IA clause (a) was attracted
G
and the assessee was liable under that provision to pay interest on
the tax on the amount of freight which remained unpaid until the
filing of the revised returns. This argument, plausible though it
may seem, is in my opinion unsustainable. It is plainly contrary
to the language of sub-section (2) of section 7 read with section I IB
H
and is opposed to the scheme of the State Act. It is also incon-
576 SUPREME COURT REPORTS [1982] 1 S.C.R.
A sistent with the decision of a Bench of five Judges of this Court in
State of Rajasthan v. Ghasi La/(1). Indeed I fail to see how in the
face of the decision, the Court can possibly accept the argument of
the Revenue.
The language used in sub-section (2) of section 7 is "full
B amount of tax due on the basis of return". The "return" referred
to is obviously the return filed by the assessee under sub-section (I)
of section 7. Now it is true that when sub-section (I) of section 7
•
requires an assessee to file a return, the return filed must be correct
and proper. If the return is not correct and proper, the Assessing
Authority may not give credence to the return and may refuse to
c assess the tax on basis of the return and if the Assessing Authority
finds that the assessee has concealed any particulars from the return
furnished by him or has deliberately furnished inadequate parti-
culars in the return, the Assessing Authority may levy penalty on
the assessee under section 16 sub-section (I) clause (e) and the
assessee may also be liable to be punished for an offence under
D section 16, sub-section (3) clause (d) for making a false statement
in the return. But, whether the return filed be correct or not, the
tax payable by the assessee under sub-sectfon (2) of section 7 would
be the full amount of tax due on the basis of the return. We must
look at the return actually filed by the assessee in order to see what
is the full amount of tax due on the basis of such return. It is not
E the assessed tax nor is it the tax due on the basis of a return which •
ought to have been filed by the assessee but it is the tax due
according to the return actually filed that is payable under sub·
section (2) of section 7. This provision is really in the nature of
self-assessment and what it requires is that whatever be tbe amount
of tax due on the basis of self-assessment must be paid up along
with the filing of the return which constitutes self-assessment. I fail
to see how the plain words of sub-section (2) of section 7 can be
tortured to mean full amount of tax due on the basis of return
which ought to have been filed but which has not been filed.
G It may also be noted that the construction contended for on
behalf of the Revenue leads to a serious anomaly, If this construc-
tion were accepted, the tax payable under sub-section (2) of section
7 would be the full amount of tax due on the basis of a correct and
proper return and that would necessarily be the same as the tax
H assessed by the Assessing Authority, because what is a correct and
(I) [1965] 2 S.C.R. 805.
ASSOCIATED CEMENT v. C.T.O. (Bhagwati, J.) 577
proper return would be determinable only with reference to the A
assessment ultimately made. The assessment when made would
show whether the return filed was correct and proper, it would be
correct and proper if it accords with the assessment made; if it does
not accord with the assessment, then to the extent to which it differs
it would obviously have to be regarded as incorrect and improper.
The consequence of the construction suggested on behalf of the B
Revenue would be thus that the tax payable under sub-section (2) of
• section 7 would be the full amount of the tax as assessed, because
that would represent the tax due on the basis of a correct and
proper return and the assessee would have to deposit at the time
of filing the return, an amount equivalent to the amount of the tax
as assessed. If the assessee fails to do so, then apart from the c
liability to pay interest under section 11 B clause (a), the assessee
would expose himself to penalty under section 16 sub-section (I)
clause (n) which provides inter alia that any person who fails to
comply with any requirement of the provisions of the State Act, the
requirement under sub-section (2) of section 7 being to deposit the
full amount of tax due on the basis of return, shall be liable to 0
penalty in "a sum not exceeding Rs. 1,000 and in the case of conti-
nuing default, a further penalty not exceeding Rs. 50 for every day
of such continuance." This is a consequence which it is difficult to
believe could ever have been contemplated by the legislature. The
legislature could never have intended that the assessee should be
liable, on pain of imposition of penalty, to deposit an amount which E
is yet to be ascertained through assessment. How would the
assessee know in advance what view the Assessing Authority would
take in regard to the taxability of any particular category of sales
or the rate of tax applicable to them and deposit the amount of
tax on that basis ? And this would be all the more problematic in
the case of a statute like the sales tax law which is full of comple- 'F
xities and where it may be difficult to assert dogmatically that a
particular view is right or wrong. Even in regard to tbe liability to
pay interest, it does not stand to reason that the legislature should
have subjected the assessee to such liability for non-payment of an
amount of which the liability for payment is still to be ascertained.
Moreover, on the construction of the Revenue, if the assessee has
G
not deposited at the time of filing the return an amount equivalent
to the full amount of the tax assessed, the assessee would be liable
to pay interest on amount remaining unpaid from the date of filing
of the return until payment. But, as I have already pointed out
H
above, when the assessment is made and the tax payable by the
•
578 SUPREME COURT REPORTS [1982) l S.C.R.
A assessee is determined, the assessee is given time for payment of the
amount of the tax assessed upto the period specified in the notice
of demand and in the absence of such specification, within thirty
days from the date of service of such notice and it is only if the
assessee fails to make payment within such period that he becomes
liable to pay interest on the amount of the tax assessed to the extent
B to which it remains unpaid. There is no liability on the assessee
to pay interest on the amount of the tax assessed un1il after the
expiration of the period specified in the notice of demand or thirty •
days from the date of service of such notice, as the case may be.
There would thus be a conflict between the two provisions, if the
construction contended for on behalf of the Revenue were accepted.
c Under sub-section (2) of section 7 read with section 1IB clause (a),
the assessee would be liable to pay interest on the amount of the tax
assessed to the extent to which it bas not been deposited at the time
of filing the return and such interest would run continuously from
the date of the filing of the return until payment, while under section
D 1IB clause (b) the assessee would not be liable to pay interest on the
amount of the tax assessed during the period specified in the notic:e
of demand or in the absence of such non-specification during the
period of thirty days from the date of service of such notice. Such
a conflict could never have been intended by the legislatnre. It is a
well-settled rule of interpretation that a statute must be so construed
as not to create any repugnance between the different provisions, •
E for it is a basic assumption underlying every interpretational exercise
that the legislature must be supposed not to have intended to con-
tradict itself. The Court must always prefer that interpretation
which avoids repugnancy between two provisions of a statute and
gives full meaning and effect to both. Therefore, on this principle
of interpretation also the construction canvassed on behalf of the
f Revenue cannot be accepted, as it would create a direct conflict
between the provisions of clause (a) and (b) of section 1IB. The
•
only way in which clauses (a) and (b) of section 1IB can be read
harmoniously and fu11 meaning and effect can be given to them is
by construing them as dealing with distinct matters or situations.
The tax payable under sub-section (2) of section 7 dealt with in
G clause (a) of section J IB cannot, therefore, be equated with the
amount of the tax assessed forming the subject matter of clause (b}
of section 1IB and hence it must be held to be tax due on the basis
of the return actually filed by the assessee and not on the basis of a
correct and proper return which ought to have been filed by him.
H
ASSOCIATED CEMENT v. C.T.O. (Bhagwati, J.) 579
There is also another angle from which the problem can be A
considered. Clause (a) of section 11 B postulates tax which, though
payable under sub-section (2) of section 7, is not paid by the assessee
within the time allowed and hence it subjects the assessee to liability
to interest for non-payment of such tax. Now if, as contended by
the Revenue, the tax payable under sub-section (2) of section 7
means the full amount of tax due on the basis of a correct and B
• proper return which ought to have been filed by the assessee, and is,
therefore, equivalent to the amount of the tax as assessed, it would
be the amount of the tax as assessed which would be payable under
sub-section (2) of section 7 and this amount would be payable by
. the assessee at the time of filing the return, even though ex hypothesi
no assessment has taken place. Now it is difficult to appreciate
how under the scheme of taxation embodied in the State Act, the
c
amount of tax which is yet to be ascertained through the process
of assessment can be said to be payable by the assessee at the time of
filing the return. If, as contended by the Revenue, it is so payable
it is difficult to understand why it should have been liable to bear
interest from the date of filing the return upto the date of assess- D
ment and thereafter it should have been freed from the liability of
• bearing interest upto the period specified in the notice of demand or
thirty days from the date of service of the notice, as the case may
be and the rate of interest also should have been made to vary from
• period to period. Moreover, it is, to my mind, impossible to accept"
the proposition that the amount of the tax ultimately assessed, E
which would represent the tax due on the basis of a correct and
proper return should be payable by the assessee at the time of
filing the return under sub-section (2) of section 7. The scheme of
taxation envisaged in the State Act clearly shows that it is only
when the assesment is made and the period specified in the notice
of demand or in the absence of such specification, thirty days from F
the date of service of such notice expires, that the amount of tax
as assessed becomes payable by the assessee and its payment can be
enforced by the Revenue. What becornes payable by the assessee
under sub-section (2) of section 7 is merely the tax due on the basis
of the return actually filed by the assessee that is, on the basis of
self-assessment. G
This position seems to be clear beyond doubt on an exami-
nation of the scheme of taxation contained in the State Act and no
authority is needed in support of it, but if any authority were
needed, it is to be found in the decision of a Bench of five Judges H
of this Court in State of Rajasthan v. Ghasi Lal (supra). There the
580 SUPREME COUT REPORTS [1982] J S.C.R.
A question was whether the assessee could be said to have failed,
without reasonable cause, to pay the tax due within the time allowed,
when he paid the tax due on the basis of the quarterly returns at
the time of filing those returns, but the returns were filed long after
the due dates for filing the same had expired. The argument of the
Revenue was that tax became due from the lassessee ,under section 3
which is the charging section and the assessee could not withhold
payment of the same by delaying the filing of the quarterly returns
within the time prescribed under the State Act and he was therefore
liable to pay interest on the amount of the tax as assessed from the
date the quarterly returns ought to have been filed and :.the amount
c
of the tax paid. This argument of the ·Revenue was rejected by the
Court and Sikri, J. speaking on behalf of the Bench of five Judges,
said: "Till the tax payable is ascertained by tlie Assessing Authority
under section IO or by the assessee under section 7(2), no tax can
-
be said to be due within section 16( I) (b) of the Act for till then
there is only a liability to be assessed to tax." These observations
D show beyond doubt that on a true construction of the provisions
of the State Act tax becomes due from the assessee and is payable
by him only. when it is "ascertained by the Assessing Authority
under section 10 or by the assessee under section 7(2)''. Until then, •
there is only the liability of the assessee to be assessed to tax and
no tax can be said to be payable by the assessee. The tax payable
E is ascertained when the assessment is made by the Assessing Autho-
rity under section 10 or when the assessee himself quantifies it
through the process of self-assessment under sub.section (2) of
section 7. These two amounts of tax may, and in quite a number
of cases would, be different because one is ascertained by the
assessee himself by filing his return and the other is ascertained by
F the Assessing Authority through the process of assessment and that
is why sub-section (4) of section 7 provides that every deposit of tax
made under sub-section (2) shall be deemed to be provisional subject
to necessary adjustments in .pursuance of final assessment of tax
made under section I 0. This provision clearly contemplates that
the tax payable under sub·section (2) of section 7 may be different
from the tax assessed under section I 0 and it cannot, therefore,
G obviously be the tax due on the basis of correct and proper return
(because that would necessarily be the same as the tax ultimately
assessed under section 10) but must be the tax due on the basis of
the return actually filed.
H Mr. Justice Venkataramiah has in his Judgment classified
registered dealers into the following five different categories :
ASSOCIATED CEMENT v. C.T.O. (Bhagwati, J.) 581
I. A registered dealer who files his return showing a A
higher taxable turnover than the actual turnover which
is ultimately found to be taxable at the time of regular
assessment and who pays tax under section 7(2) of the
Act on the basis of the return.
2. A registered dealer who files a true and proper return B
and pays tax on the basis of such return within the
' time allowed.
3. A registered dealer who does not file any return at
-
all as required by section 7(1) and pays no tax under
section 7(2) of the Act. c
4. A registered dealer who files a true return but does not
pay the full amount of tax as required by section
7(2); and
5. A registered dealer who files a return but wrongly D
claims either the whole or any part of the turnover as
• not taxable and pays under section 7(2) of the Act that
amount of tax, which according to him is payable, on
the basis of the return.
The learned Judge has observed that if the construction contended E
for on behalf of the assessee were accepted, registered dealers falling
within categories (3), (4) and (5) would be outside the provision
enacted in sub-section (2) of section 7 read with section 11 B clause
(a) and no interest would be payable by them under that provision
and that would make clause (a) of section 1IB "either unworkable
or meaningless". I must, with the greatest respect, confess my
F
inability to appropriate the line of reasoning which has prevailed
with the learned Judge in making this observation. The learned
Judge has proceeded on the basis that the registered dealers falling
within all the three categories, namely, (3), (4) and (5) are required
by sub·section (2) of section 7 to pay the tax chargeable under
section 3 of the State Act and if they do not pay the same within the
G
time allowed, that is, at the time when the returns are filed or in
case the returns are not filed within the prescribed time, then before
the expiration of the date when they ought to have been filed they
would be liable to pay interest under section 11 B clause (a). There,
is, in my opinion, a basic fallacy underlying this assumption, because H
it is clear from the language of sub-section (2) of section ..7 that it
582 SUPREME COURT REPORTS (1982] I S.C.R.
A is only on the filing of the return that the liability to pay the tax
due on the basis of the return arises. If no return is filed within
the prescribed time, it would undoubtedly constitutes a default
attracting penalty under section 16, sub-section (I) clause (n), but
there would be no liability on the assessee to pay interest on the
amount of the tax, because the liability to pay the "tax due on the
B basis of the return" under sub· section (2) of section 7 can arise only
when the return is filed. There is no liability on the assessee 10 pay
any amount by way of tax until the return is filed or the assessment '
is made. This is clear from the decision of this Court in the
State of Rajasthan v. Ghasi Lal (supra) where this Court held in so
many terms at page 322 of the Report that since the assessee in that
c case did not file returns till December 19, 1959 and January and
March 1960, "sec1ion 7(2) could not be auracted till then"' (Emphasis
supplied). I fail to understand how in the face of these observations
made by a Bench of five Judges of this Court, it can ever be held
that section 7 sub-section (2) is attracted even when no return has
been filed. It is clear from the observations in this case--observa-
D tions which have been quoted here as also in an earlier paragraph-
that until the assessee files a return or the assessment is made, no
tax is payable by the assessee, because "till then there is only a
liability to be assessed to tax"'. I must therefore regretfully express
my liability to accept the conclusion reached by my learned brother
Venkataramiah that a registered dealer falling within category 3 who
E does not file any return at all as required by sub-section (I) of sec-
tion 7 would still be liable to pay the amount of tax and if he does
not pay the same before the due date for filing the return has
expired, he would be liable to pay interest under section 11 B clause
..
(a). That would be plainly contrary to the decision in State of
Rajaslhan v. Ghasi Lal (supra) which, being a decision of 5 Judges
F of this Court, is binding upon us.
So also with regard to registered dealers falling within categery
4, I cannot agree with the view taken by my learned brother
Venkataramiah. He has reasoned that if a registered dealer files a
return but does not pay the full amuont of the tax due on the basis
G of the return filed by him, the Assessing Authority would be entitled
to ignore the return under sub-rule (4) of Rule 25 and when the
return is not taken cognizance of, there would be no return on the
basis of which interest can be computed. This reasoring is, in my
opinion, fallacious and if I may say so without meaning the slightest
H
disrespect, it is based on misappreciation of the effect of sub-rule
(4) of Rule 25 vis-a-vis sub-section (2) of section 7. Rule 25
ASSOCIATED CEMENT v. C.T.O. (Bhagwati, J.) 583
sub-rule (4) provides that if a return is not accompanied by a receipt A
for the deposit of tax as required by sub·section (2) of section 7, the
Assessing Authority sball not be bound to take any cognizance of
the return. If the assessee does not deposit the amount of tax due
on the basis of the return and files the return without making such
deposit, the Assessing Authority is given the discretion to ignore the
return and to proceed to assess the assessee as if no return were
• filed. But, the Assessing Authority may, in a given case, if it so
thinks fit, take cognizance of the return for the purpose of assess-
ment, despite the fact that the tax due 011 the basis of the return has
not been deposited by the assessee as required by sub-section (2) of
section 7. Where the Assessing Authorit~ chooses to take cognizance
of the return, there can be no doubt, even on the reasoning of Mr. c
Justice Venkataramiah, that the assessee would be liable to pay the
amount of tax due on the basis of the return and if he fails to do so,
he would have to pay interest under section 11 B clause (a). Then
merely brcause the Assessing Authority may, in a given case, in the
exercise of its discretion, decline to take cognizance of the return, it
does not mean that in such a case the aso;essee \Vould be r.!tro5p~c D
tively relieved of his liability to pay the amount of tax due on the
• basis of the return, 011 the ground that the return filed by him has
become 'no-return'. The liability of the assessee to deposit the
amount of tax due on the basis of the return cannot depend upon
a future discretionary event. namely, whether the Assessing
Authority chooses to take cognizance of the return or declines to E
take cognizance of it. The only correct way of reading sub-section
(2) of section 7 and sub-Rule (4) of Rule 25 is that whenever a
return is filed by the assessee, it must under sub-section (2) of section
7 be accompanied by receipt showing deposit of the full amount of
tax due on the basis of the return and if the asseS>ee fails to deposit
the amount of the tax due on the basis of the return actually filed, F
the Assessing Authority would have the option under sub-rule (4) of
Rule 25 either to take or not to take cogniza.1ce of the return. If
the Assessing Authority chooses not to take cognizance of the
return, it would proceed to assess the assf'see as if no return had
been filed by him, but that would not relieve the assessee of the
obligation attaching to him under sub-section (2) of section 7 of G
depositing, at the time of filing the return, the amount of the tax
due on the basis of the return actually filed nor would it condone
the breach of such obligation. If the assessee does not pay the full
amount of the tax due on the basis of the return as required sub-
section (2) of section 7, he would be liable to pay interest under H
584 SUPREME COURT REPORTS [1982] I S.C.R.
A section l IB clause (a), irrespective of whether the Assessing Authority
chooses to act upon the return or declines to take cognizance of it.
The argument which has appealed to my learned brother Venka-
taramiah that if the construction put forward on behalf of the
assesseee were accepted, sub.section (2) of section 7 would fail in its
application to a registered dealer falling within category 4 is there-
8 fore in my opinion not a valid argument and with the greatest
respect, I must confess my inability to accept it. On the construc-
tion contended for on behalf of the assessee, the case of a registered
dealer falling within category 4 is clearly covered by sub-section (2)
of section 7 [and in fact, it is precisely to cover inter alia a case of
this kind that the legislature enacted sub-section (2) of section 7
c read:with section l IB clause (a). Similarly the case of a registered
dealer falling within category 5 is also covered by sub-section (2) of
section 7 and if he does not pay the amount of tax which according
to him is payable, on the basis of the return filed by him, he would
be liable to pay interest under section l IB clause (a). So long as
the assessee pays the amount of tax which according to him is due
D on the basis of the return filed by him, there would be no default on
his part in complying with the obligation under sub-section (2) of
section 7 and there would be no liability on him to pay interest •
under section l IB clause (a), because he would have paid the amount
of tax quantified by him through the process of self-assessment. The
actual amount of tax payable by the assessee would be determined •
E only when it is assessed by the Assessing Authority under section JO
and that would not be payable until the expiration of the period
specified in the notice of demand or thirty days from the date of
service of such notice, as the case may be.
I must therefore regret my inability to accept the view taken by
F my learned brother Venkataramiah that if the constrution contended
for on behalf of the assessee were accepted, section 11 B clause (a)
would become meaningless or unworkable. That provision would
have full meaning and effect on the construction canvassed on behalf
of the assessee and in fact as pointed out above if the construction
which has appealed to my learned brother Venkataramiah were
G accepted, the consequence would be directly contradictory to the
decision of this Court in State of Rajasthan v. Ghasi Lal (supra),
My learned brother Venkataramiah has relied strongly on the
decision of this Court in Gurshai Saigal v. Commissioner of
Income Tax, Punjab(') but I fail to see how this decision can
H
(1) [1963) 3 S.C.R. 893.
ASSOCIATED CEMENT v. C.T.O. (Bhagwali, J.) 585
be of any help in the present case where section I IB clause (a) A
- is not at all rendered meaningless or unworkable on the
construction suggested on behalf of the assessee. The assessee in
that case was sought to be charged with interest under sub-section
(8) of section ! SA of the Indian Income Tax Act 1922 which provi-
ded that "where, on making the regular assessment, the Income-tax
Officer finds that no payment of tax has been made in accordance B
• with the foregoing provisions of this section, interest calculated in
the manner laid in sub-section (6) shall be added to the tax as deter-
mined on the basis of the regular assessment." The argument of the
assessee was that since sub-section (6) of section 18A provided that
- where in any year an assessee has·paid tax under sub-section (2) or
sub-section (3) on the basis of his own estimate and the tax so paid
is less than 80% of the tax determined on the basis of the regular
assessment, simple interest at the rate of 6% per an1umfrom the
c
first day of January in the financial year in which the tax was paid up
to the date of such regular assessment shall be payable by the
assessee and since no payment of tax had been made by the asses,. e
at all in that case it, was not possible to calculate interest in t1e D
manner laid down in sub-section (6) and no interest could therefo e
be charged to the assessee under sub-sectioa (8) of section I 8A.
This argument was rejected by the Court on the ground that if the
words "from the first day of January in the financial year in which
the tax was paid" occurring in sub-section (6) of section l 8A were
to be literally applied in a case falli 1g within sub-section (8) of E
section !8A where no tax would have been paid, sub-section (S)
would be rendered totally meaningless and futile. The Court there-
fore with a view not to rendering sub-section (S) of section I SA a
dead letter construed the words in sub-section (6) to mean "from
the first day o. January in the financial year in which the tax ought to
have been paid." This liberty was taken by the Court with the
F
language of sub-section (6) of section 18A, because the Court
proceeded on the hypothesis that the legislature could not have
intended that sub-section (8) of section ! SA should be
meaningless and unworkable. But here in the present case there is
no compelling necessity to modify the words used in sub-section (2)
of section 7, because sub-section (2) of section 7 read with section
G
llB clause (a) is not rendered meaningless or futile on a plain
natural construction of the language used in that provision.
It is interesting to compare section l 40A sub-section (I) of the
Income Tax Act, 1961 with sectian 7 sub-section (2) of the State H
Act. Sub-section (I} of section 140A provides that where any tlx is
586 SUPREME COURT REPORTS [1982] I S.C.R.
A payable on the basis of any return required to be furnished under
section 139 or under sec. 148, after taking into account the amount
of tax, if any, already paid under any provision of the Act, the
assessee shall be liable to pay such tax before furnishing the return
and the return shall be accompanied by proof of payment of such
tax. Sub-section (3) of section I 40A then proceeds to state that if
8 any assessee fails to pay the tax or any part thereof in accordance
with the provision of sub-section (I), the Income Tax Officer may
direct that a sum equal to two percent of such tax or part thereof, as
the case may be, shall be recovered from him by way of penalty for
-
every month during which the default continues. Can it possibly
be contended that these two sub-sections of section 140A refer to
c tax payable on the basis of a proper and correct return or in other
words the tax assessed ? It is obvious that these two sub-sections
refer only to tax payable on the basis of self-assess'llent and require
such tax to be paid before the filing of the return and if that is not
done, the assessee becomes liable to pay penalty for every month
during which the default continues. So also section 215 of Income-
D tax Act, 1961 which provides for payment of interest onunder-pay·
ment of advance tax does not impose liability for payment of
interest in case of every deficiency but provides for payment of
•
interest only if the advance tax paid is less than 75 per cent of the
assessed tax. In the world of human affairs, it is hardly possible
that the advance tax paid by the assessee or the tax payable on the
E basis of self-assessment would always be equivalent to the tax ulti-
mately assessed by the authorities. There is no reason to interpret
section 7 sub-section (2) differently from similar provisions in the
Income Tax Act, 1961.
I am therefore of the view that since the assessee deposited
the amounts of tax which according to him were due on the basis of
the returns actually filed by him and the returns were accompanied
by receipts showing deposit of such amounts of tax, there was no
default on the part of the assessee in paying the amounts of tax
payable under sub-section (2) of section 7 within the actual period
allowed and in the circumstances no interest was payable by the
G assessee under section l IB clause (a). I would accordingly allow the
appeal and set aside the orders passed by the Assessing Authority
imposing penalty and levying interest on the assessee under the
State Act as well as the Central Act. The Revenue will pay the
costs of the appeal to the assessee.
H ,.
ASSOCIATED CEMENT v. C.T.O. (Venkataramiah, J.) 587
VENKATARAMIAH, J. The assessee M/s. Associated Cement A
Companies Limited has filed this appeal by special leave under
Article 136 of the Constitution against the orders dated January 30,
1980 passed by the Commercial Tax Officer, Special Circle, Kota in
the State of Rajasthan imposing on it a penalty of Rs. 53,335 under
section 7AA of the Rajasthan Sales Tax Act, 1954 (hereinafter
referred to as 'the Act') and levying interest under section 11 B of B
the Act amounting to Rs. 85,910.50 and a further penalty of
' Rs. I ,34,205 under section 7AA of the Act read with section 9(2)
of the Central Tax Act and levying interest of Rs .. 2,07,174/- under
section l IB of the Act read with section 9(2) of the Central Sales
Tax Act in respect of the assessment year 1974-75.
c
The circumstances under which the above orders came to be
passed are these : The assessee has a cement manufacturing factory
in the State of Rajasthan at Lakheri. The cement manufactured at
that factory is sold partly in the State of Rajasthan and partly
outside that State. The invoices of sales are however, made and
issued at Ahmedabad and other places. The sales tax returns D
relating to the sales were filed under the Act and under the Central
Sales Tax Act at Kota before the assessing authority for the period
between August I, 1973 and July 31, 1974 i e. the assessment year
1974.75. In those returns, the assessee had not included in the
taxable turnovers the freight charges paid in respect of the goods in
question in the bonafide belief that the freight charges were not E
liable to be included in the taxable turnover in view of certain
decisions which had been rendered by some of the High Courts
and of the Supreme Court and in particular the decision of this
Court in Hyderabad Asbestos Cement Products Ltd. v. State of
Andhra Pradesh.(') But in, Hindustan Sugar Mills etc. v. State of
Rajasthan & Ors.(') this Court held that on a true construction of
F
the scheme of the Cement Control Order, 1967 and the relevant
provisions of the Act and of the Central Sales Tax Act, the freight
charges formed part of the sale price and that sales tax was payable
thereon. The above decision was rendered on August 22, 1978.
On coming to know of the said decision, the assessee prepared and
filed the revised returns in respect of the assessment year in question
G
i.e. 1974-75 before the Commercial Tax Officer, Special Circle, Kota
on October 20, 1978 including the freight charges in the taxable
turnover. The assessee also deposited alongwith the revised returns
(I) 24! S.T.C. 487.
H
(2) (1979] l S.C.R. 276,
588 SUPREME COURT REPORTS (1982] 1 s.c.R.
A the balance of the sales tax payable under the Act and under the
Central Sales Tax Act. Thereafter the assessing authority passed
the two impugned orders of assessment-one under section 10(3) of
the Act and another under section 9 of the Central Sales Tax Act.
In the order of assessment passed under the Act, the assessing
authority levied a penalty of Rs. 53,335/- under section 7AA of the
B Act on account of the delay in depositing a sum of Rs. 1,06,671/-
towards sales tax payable in respect of the freight charges and also •
levied interest of Rs. 85,910.50 under section l IB of the Act.
Similarly in the assessment order passed under the Central Sales Tax
Act, a penalty of Rs. 1,34,205/- was levied under section 7AA of the
Act read with section 9(2) of the Central Sales Tax Act for the
c delay in depositing the tax payable in respect of the freight charges
and levied interest of Rs. 2,07, I 74 under section 1IB of the Act
read with section 9(2) of the Central Sales Tax Act. In this appeal,
we are only concerned with the correctness of the impugned ord1~rs
in so far as they levy penalty and interest.
D
The first question canvassed before us relates to the levy of
penalties on the assessee under the assessment orders for not paying
the sales tax payable under the Act and under the Central Sales Tax
Act in respect of the freight charges which were declared as compo-
nents of sale price by this Court in Hindustan Sugar Mill's ca;e
E
(Supra) on August 22, 1978. The explanation of the assessee for
not including the freight charges in the taxable turnover was, as
mentioned earlier, that there was a doubt about its liability to pay
sales tax thereon as the very same question was pending adjudica-
tion before this Court and that on the facts and in the circumstances
of the case, the assessee could not be held guilty of filing false
F returns before the assessing authority. It was pleaded that since
the non-inclusion of the freight charges in the taxable turnover was
a result of bonafide belief of the assessee that they were not liable
to be included in the taxable turnover, the assessing authority
should have in its discretion not imposed the penalties particularly
having regard to the fact that within two months after the judgment
G
of this Court in Hindustan Sugar Mills' case (supra), the assessee
had filed the revised returns including the freight charges in the
taxable turnover and paid the sales tax payable in respect of them
even before the assessing authority had passed the orders of assess-
ment. We are of the view that 1his part of the case of the assessee has
H
got to be accepted in view of the decision of this Court in Cement
Marketing Co. of India Ltd. v. Asstt. Commissioner of Sales Tax,
ASSOCIATED CEMENT v. C.T.O. (Venkataramiah, J.) 589
Indore & Ors.(1 ) where under similar circumstances, this Court held A
that the assessee therein which was also manufacturer and dealer in
cement was not Iiable to pay a penalty under section 43 of the
Madhya Pradesh General Sales Tax Act, J 958 read with section 9(2)
ol the Central Sales Tax Act. For the reasons metioned therein,
we hold that the levy of penalties for not including the freight
charges in the taxable turnover in the original returns and for not B
paying the tax in respect of such freight charges is unsustainable
and that the impugned penalties are liable to be quashed.
The next question which arises for consideration relates to the
liability of the assessee to pay interest under section JIB of the Act
on the tax paid in respect of the freight charges for the period c
between the date on which it was payable under section 7(2)of the
Act and the date of payment and the liability to pay interest on the
tax payable in respect of the freight charges under the Central Sales
Tax Act in accordance with section 9(2) thereof read with section
1IB of the Act. The claim of the department is based on sub-
sections (I) and (2) of section 7 read with section I IB of the Act in
the case of interest claimed under the Act and on the aforesaid
• provisions of the Act read with section 9(2) of the Central Sales Tax
Act in respect of the interest payable under the Sales Tax Act.
Section 7 of the Act at the relevant point of time read as follows :
"7. Submission of returns.-(!) Every registered dealer E
and such other dealer, as may be required to do so by the
assessing authority by notice served in the prescribed
manner, shall furnish prescribed returns, for the prescribed
periods, in the prescribed forms, in the prescribed manner
- and within the prescribed time to the assessing authority:
Provided that the assessing authority may extend the
F
date for the submission of such returns by any dealer or
class of dealers by a period not exceeding fifteen days in
the aggregate.
(2) Every such return shall be accompanied by a G
Treasury receipt or receipt of any•. bank authorised to receive
money on behalf of the State Government, showing the
deposit of the full amount of tax due on the basis of return
in the State Government Treasury or bank concerned.
H
(I) (1980] l S.C.R. 1098.
590 SUPREMB COURT REPORTS [J9g2) I S.C.R,
A (2A) Notwithstanding anything contained in sub-
section (2), the State Government may by notification in
the Official Gazette require any dealer or class of dealers
specified therein, to pay tax at intervals shorter than those
prescribed under sub-section (1). In such cases, the pro-
portionate tax on the basis of the last return shall be
B deposited at the intervals specified in the said notification
in advance of the return. The difference, if any, of the
tax payable according to the return and the advance tax
paid shall be deposited with the return and the return shall
be accompanied by the treasury receipt, or receipts of any
Bank authorised to receive money on beh1lf of the State
c Government, for the full amount of tax due shown in the
return.
(3) If any dealer discovers any om1ss10n, error, or
wrong statement in any returns furnished by him under
sub-section(!), he may furnish a revised return in the pres-
D cribed manner before the time prescribed for the submission
of the next return but not later.
•
(4) Every deposit of tax made under sub-section (2)
shall be deemed to be provisional subject to necessary
adjustments in pursuance of the final assessment of tax
E made for any year under section 10."
Section I IB of the Act during the relevant period read as
under:-
F I I B. Interest on failure to pay tax, fee or penalty,- •
(a) If the amount of any tax payable under sub-
sections (2) and (2A) of section 7 is not paid within
the period allowed, or
G (b) if the amount specified in any notice of demand,
whether for tax, fee, or penalty, is not paid within the
period specified in such notice, or in the absence of such
specification, within 30 days from the date of service of such
notice, the dealer shall be liable to pay simple interest on
H such amount at one percent per month from the day com-
mencing after the end of the said period for a period of ---
three months and at one and a half percent per month
ASSOCIATED CEMENT v. C.T.O. (Venkataramiah, J.) 591
thereafter during the time he continues to make default in A
the payments;
Provided that, where, as a result of any order under
this Act, the amount, on which interest was payable under
this section, has been reduced, the interest shall be reduced
accordingly and the excess interest paid, if any, shall be .B
refunded;
'
Provided further that no interest shall be payable
under this section on such amount and for such period in
respect of which interest is paid under the provisions of
sections 11 and 14." c
We are principally concerned in this case with sub-sections (1)
and (2) of section 7 of the Act. Sub-section (I) of section 7 of the
Act requires every registered dealer and such other dealer, as may
be required to do so by the assessing authority in the prescribed
manner to furnish returns in a prescribed form in respect of the
prescribed periods within the prescribed time furnishing necessary
particulars regarding his turnover. The proviso to sub-section (I)
of section 7 of the Act authorises the assessing authority to extend
the date for the submission of such returns by a period not exceed-
ing 15 days in the aggregate. Sub-section (2) of section 7 of the
Act insists that every such return shall be accompanied by a
Treasury receipt or receipt c>f any bank authorised to receive money
on behalf the the State Government showing the deposit of the full
amount of tax due on the basis of return in the State Government
Treasury or bank concerned. Sub-section (4) of section 7 of the Act,
it may be noticed, provides that every deposit of tax made under
sub-section (2) shall be deemed to be provisional subject to necessaey F
adjustments in pursuance of the final assessment of tax made for
any year under section I 0. Clause (a) of section 11 B of the Act
authorises the levy of interest on the amount of tax not paid in
accordance with sub-sections (2) and and (2A) of section 7 of the
Act. The expression 'prescribed' is defined in section 2( \,) of the
Act. It states that in the Act unless the context otherwise requires G
"prescribed" means prescribed by rules made und<:r the Act.
Section 26 of the Act empowers the State Government to make
rules to carry out the purposes of the Aet and in particular and
without prejudice to the generality of the foregoing power, such
rules may provide for all matters expressly required or allowed by H
the Act to be prescribed. We have seen earlier that section 7(1)
592 SUPREME COURT REPORTS [1982] I s.c.1..
A of the Act requires the returns to be filed in the prescribed manner,
iu respect of the prescribed periods and within the prescribed time.
Sub-section (SJ of section 26 of the Act lays down that all rules
made under that section shall be published in the Official Gazette
and upon such publication shall have effect as if enacted in the Act
Chapter VII of the Rajasthan Sales Tax Rules, 1955 (hereinafter
B referred to as 'the Rules') framed by the State Government in exer-
cise of its power under the Act deals with the topic "Return of
turnover and other returns and statements". The relevant part of
Rule·, 25. of the Rules which appears in Chapter VII reads as follows:
"25. Return or turnover.-(!) The return referred to
c in sub-section (I) or section 7 shall be in form S.T. 5 and
shall be signed by the dealer himself or his agent, and shall
be verified in the manner indicated therein and shall be
submitted to the assessing authority concerned.
(2) The return may be presented personally or may be
D sent by post.
(3) The said return shall be filed for such of the
quarters ending with the last day of the month of June,
September, December and March of every assessment year
if the 'previous year' of the dealer ends on the 31st day of
E March of any year, and in other cases for each of the
quarters of the year of accounts of the dealer, and shall be
filed not later than 30 days after the end of the quarter to
which it relates :
Explanation.-The quarters of the year of accounts of
• a dealer shall be as follows :
First quarter-The period of three months commencing .
on the first day of the year of accounts.
Second quarter-The period of three months com-
mencing on the day next after the end of the first quarter.
G
Third quarter-The period of three months commenc-
ing on the day next after the end of the second quarter.
' '
Fourth quarter-Rest of the year of account.
H The months shall be calculated according to the usage
of the dealer whose year of account is in question.
ASSOCIATBD CBMBNT v. C.T.o. (Yenkataramiah, J.) 593
(4). If a return is not accompanied by a receipt for the A
deposit of tax as required by sub-section (2) of section 7,
the assessing authority shall not be bound to take any
cognisance of the return."
Sub-rule (I) of Rule 25 of the Rules provides that the return
referred to in sub-section (I) of section 7 of the Act shall be in form B
S.T. 5 and sub-rule (3) of Rule 25 prescribed the time within which
quarterly returns should be filed by a dealer. Sub-rule (4) of Rule
25 of the Rul~s provides that if a return is not accompanied by a
receipt for the deposit of tax as required by sub-section (2) of
section 7 of the Act, assessing authority shall not be bound to take
any cognisance of the return. Rule 25 of the Rules which is framed c
under the Act should be read as a part of the Act itself in view of
the express provision contained in sub-section (5) of section 26 of
the Act, which declares that all rules made under section 26 shall
on publication in the Official Gazettee have effect, as if enacted in
; D
the Act. That should be the effect of a rule framed under statute
containing a provision similar to the provision in section 26(5) of
the Act can be gathered from a decision of the House of Lords in
ln31itute of Patent Agents & Ors. v. Joseph Lockwood(') in which
Lord Herschell, L.C. observed at page 360 thus :
"I own I feel very great difficulty in giving to this pro- E
vision, that they "shall be of the same effect as if they
were contained in this Act," any other meaning than this,
that you shall for all purposes of construction or obligation
or otherwise treat them exactly as if they were in the Act.
No doubt there might be some conflict between a rule and
a provision of the Act. Well, there is a conflict sometimes F
between two sections to be found in the ·same Act. You
have to try and reconcile them as best you may. If you
cannot, you have to determine which is the leading pro-
vision and which the subordinate provision, and which must
give way to the other. That would be so with regard to
the enactment and with regard to rules which are to be G
· treated as if within the enactment."
The contention of the assessee in the present case is that as it
had deposited the full amount of tax due on the basis of the returns
filed under sub-section (I) of section 7 of the Act at the time when
H
(I) 1894 A.C. 347.
594 SUPRliME COURT REPORTS [1982] l S.C.R.
A they were filed, it had compiled with sub.section (2) of section 7
of the Act and that the question of levying interest on the amount
of tax which it deposited on the basis of the revised returns for the
period prior to the date of the revised returns did not arise. On
behalf of the department it is urged before us that the words "on
the basis of return" occurring in sub-section (2) of section 7 of the
B Act must be read as on the basis of a true and proper return in the
context in which those words appear in the statute and if they are
so read, the assessee is liable to pay interest on the deficit amount
of tax which was made good on October 20, 1978 for the period
between the date on which such deposit or deposits had to be made
under section 7(1) of the Act read with Rule 25 of the Rules and
c the date on which they were actually made.
We are concerned in thi& case with the liability of the assessee
to pay interest on the amount of tax which had remained unpaid.
Tax, interest and penalty are three different concepts. Tax becomes
payable by an assessee by virtue of the charging provision in a taxing \
D statute. Penalty ordinarily becomes payable when it is found that
an assessee has wilfully violated any of the provisions of the taxing
statute. Interest is ordinarily claimed from an assessee who has
withheld payment of any tax payable by him and it is always
calculated at the prescribed rate on the basis of the actual amount
of tax withheld and the extent of delay in paying it. It may not be
E wrong to say that such interest (is compensatory in character and
not penal.
In order to understand the case of the assessee, we may
classify the registered dealers into the following different classes :
1. A registered dealer who files his return showing a higher
taxable turnover than the actual turnover which is
ultimately found to be taxable at the time of regular
assessment and who pays tax under section 7(2) of the
Act on the basis of the return.
G 2. A registered deale1 who files a true and proper return
and pays tax on the basis of such return within the
time allowed.
3, A registered dealer who does not file any return at all
H as required by section 7(1) and pays no tax under
section 7(2) of the Act.
ASSOCIATED CEMENT v. C.T.O. (Venkataramiah, J.) 595
4.. , A. registereddea1er who Jiles a true. return but does A.
not pa)' the fuli am()µnt oft~~. as required by section
7(2) and
5. -A registered dealer who files a reiurn but wrongly
· claims either the whole or any part of the turnover as
not taxable and pays under section 7(2) of the Act that B
amount of tax, which according to him is payable, on
the basis of the return.
ln the case of a registered dealer falling under class (I) no
question of payment of interest would arise as the amount
of tax paid by him at the time of filing the return is much c
more than what is actually due and payable by him under the Act.
The extra tax paid by him becomes refundable after the regular
assessment is completed in view of section 7(4) of the Act. In the
J case of a registered dealer falling under class (2) also no question of
payment of interest arises as there is no shortfall in payment of
the tax. D
If the contention of the assessee urged in this case is accepted,
no interest becomes payable even by registered dealers falling under
classes 3,4 and 5 because (a) in the case of a registered dealer
falling under class (3) who has not filed any return at all, no
occasion would arise to claim interest on any tax 'due on the basis E
of return' as there is no return at all, (b) in the case of a registered
dealer falling under class (4) who files a true return but does not
pay full amount of tax under section 7(2) the assessing authority is
entitled to ignore it under sub-rule (4) of Rule 25 of the Rules and
when the return is not taken cognisance of, there will be no return
on the basis of which interest can be computed and (c) in the case
F
of a registered dealer coming within the purview of class (5) who has
filed a return but has wrongly claimed either the whole or any part
of the turnover as not taxable and paid under section 7(2) of the
Act only that amount of tax which according to him is payable as
tax as he would have paid whatever is payable on the basis of the
return. The resulting position would be that clause (a) of section
G
I lB of the Act which cleary imposes the liability on the assessee
who has not paid the tax due by him within the period allowed by
law becomes either unworkable or meaningless. A fair reading of
section 11 B of the Act suggests that the Act expects that all assessees
who are liable to pay sale,s tax should file a true return within the
H
period prescribed under sub-section (I) of section 7 and should
596 SUPRBMB COURT RBPORTS [1982) I S.C.R.
A produce a treasury receipt or a receipt of any bank authorised to
receive money on behalf of the State Government showing that full
amount of tax due from them has been paid.
The argument pressed before us on behalf of the assessee is that
since section 7 of the Act does not expressly say that a registered
B dealer who has not filed any return or a person who has claimed
that his turnover or any part thereof is not taxable and has not paid
tax due in respect of such disputed turnover should also pay interest
on the tax which is legitimately due to the Government but withheld
by him, no interest can be claimed under section 118 o.f the Act in
such cases. Section 7 of the Act which deals with the submission
c of returns is not a charging section but a machinery section. It is
5ettled law that a distinction has to be made by court while inter-
preting the provisions of a taxing statute between charging provi-
sions which impose the charge to tax and machinery provisions
which pnwide the machinery for the quantification of the tax and
the levying and collection of the tax so imposed. While charging pro-
D visions are construed strictly, machinery sections are not generally
subject to a rigorous construction. The courts are expected to cons-
true the machinery sections in such a manner that a charge to tax
is not defeated. The above rule of construction of a taxir.g statute
has been adopted by this Court in l ndia United Mills Ltd. v. Commis-
sioner of Excess Profits Tax, Bombay (1) in which section 15 of the
E Excess Profits Tax Act came up for consideration. The Court
observed in that case thus :
"That section is, it should be emphasised, not a char-
ging section, but a machinery section. And a machinery
section should be so construed as to effectuate the charging
F section."
The above principle was followed by this Court in Gursahai
Saigal v. Commissioner of lncome-tax, Punjab (') in which is was
observed thus :
G "Now it is well recognised that the rule of construction
on which the assessee relies applies only to a taxing provi-
sion and has no application to all provisions in a taxing
statute. It does not, for example, apply to a provision not
H
(1) [1955] 1 S.C.R. Slo.
(2) [1963] 3 S.C.R. 893.
ASSOCIATED CEMENT v. C.T.O. (Venkataramiah, J.) 597
creating a charge for the tax but laying down the machinery A
for its calculation or procedure for its ClJllection. The
provisions in a taxing statute dealing with machinery for
assessment have to be construed by the ordinary rules of
construction, that is to say, in accordance with the clear
intention of the legislature which is to make a charge levied
effective." · B
In deciding Gursahai Saiga/'s case (supra) the Court followed
the observations made by the Privy Council in Commissioner of
lncome·lax v. Mahaliram Ramjidas (') and by the House of Lords
in Whitney v. Commissioners af Inland Revenue. (') In the case of
Mahaliram Ramjidas (supra) the Privy Council observed : c
"The section, although it is a part of a taxing Act,
imposes no charge on the subject, and deals merely with the
machinery of assessment. In interpreting provisions of
this kind the rule is that that construction should be
preferred which makes the machinery workable utres valeat-
D
potius quam pereat."
In Whitne.v's case (supra), Lord Dunedin made the following
observations :
"My Lords, I shall now permit myself a general
observation. ·Once that it is fixed that there is liability, it is E
antecedently highly improbable that the statute should not
go on to make that liability effective. A statute is designed
to be workable, and the interpretation thereof by a Court
should be to secure that object, unless crucial omission or
clear direction makes that end unattainable. Now, there
_ are three stages in the imposition of a tax : there is the F
declaration of liability, that is the part of the statute which
determines what persons in respect of what property are
liable. Next, there is the assessment. Liability does not
depend on assessment. That, exhypothesi, has already
been fixed. But assessment particularizes the exact sum
which a person liable has to pay. Lastly, come the methods G
of recovery, if the person taxed does not voluntarily pay,"
The circumstances under which the above principle was applied
by this Court in Gursahai Saigal' s case (supra) are interesting. That
H
(I} A.I.R. 1940 P.C. 124.
(2) [1926] A.C. 37.
598 SUPREME COURT REPORTS [ 1982] 1 s.c.R.
A was a case in which an assessee who was charged with interest under
sub-section (8) of section I SA of the Indian Income-tax Act, 1922
bas questioned his liability to pay interest. His contention was that
interest payable under sub-section 18) of section I8A of that Act had
to be calculated in the manner laid down in sub-section (6) thereof.
Since sub-section 6 of s. I 8A of the Act provided that where in any
8 year an assessee had paid tax under sub-section (2) or sub·section
(3) thereof on the basis of his own estimate and the tax so paid was
Jess than eighty per cent of the tax determined on the basis or
regular assessment simple interest at the rate of six per cent per >
annum from the l st day of January in the financial year in which the
tax was paid upto the date of the said regular assessment should be
c payRble by the assessee and as he had not paid any tax at a 11, it was
ur~ed that it was not possible to calculate interest in the manner
laid down in sub-section (6). The Court rejected the contention of
the assessee following the decision of the Privy Council and the
House of Lords referred to above that the words "from the Isl day
of January in the financial year in which the tax was paid" obviously
D could not literally be applied to a case where no tax had been
paid but since on a true construction those words meant "from the
1st day of January in the financial year in which the tax ought to
have been paid'', the assessee was liable to pay interest. This Court
observed
E "It would not be doing too much violence to the words
used to read them in this way. The tax ought to have been
paid on one or other of the dates earlier mentioned. The
intention was that interest should be charged from January
1 of the financial year in which the tax ought to have been
paid. Those who paid the tax but a smaller amount and
F those who did not pay tax at all would then be put in the
same position substantially which is obviously fair and was
clearly intended. Which is the precise financial year in any
case would depend on its facts and this would make no
difference in the construction of the provision."
G We are in respectful agreement with the method of approach
adopted by this Court in GurS?hal Saigal' s (') case (supra). It is the
duty of the Court while interpreting the machinery provisions of a
taxing statute to give effect to its manifest purpose having a full
view of it. Wherever the intention to impose liability is clear courts
H ought to have no hesitation in giving what we may call a common-
sense interpretation to the machinery sections so that the charge
does not fail.
ASSOCIATED CEMENT v. C.T.O. (Venkataramiah, J.) 599
In the present case if we construe the words "on the basis of A
return" occu-rring irr sub-section (2) of section 7 of the Act as on the
basis of a true and proper return which ought to have been filed
under sub-section (I) of section 7 then all the three classes of persons
viz. (i) those who have not filed any return at all and who are later
on found to be liable to be assessed, (ii) those who have filed a true
return but have not deposited the full amount of tax which they are
liable to pay and (iii) those who have filed a return making a wrong
claim that either the whole or any part of the turnover is n->l taxable
and who are subsequently found to have made a wrong claim, would
be placed in the same position and they would all be liable to p1y
interest on the amount of tax which they are liable to pay but have
not paid as required by sub-section (2) of section 7 of the Act. We c
are of opinion that this view is in conformity with the legislative
intention in enacting section 11 B of the Act.
We have carefully gone through the decision of five learned
} judges of this Court in State of Rajasthan and Ors. v. Ghasi L1/( 1 )
and we are humbly of opinion that it is distinguishable from the D
present case. In Ghasi fol case (supra), this Court was concerned
with the question of sustainability of penalties imposed
under the Act and not interest leviable under section ll B. The
relevant facts in that case were these : The respondent therein who
was a dealer within the meaning of the Act filed a writ petition in
the High Court of Rajasthan challenging the making of assessment
on his turnover for the year 1955-56 on the ground that the Rules
which had been published on March 28, 1955 were invalid. On
January 9, 1958 the High Court passed an interim order stating that
"the petitioner will keep proper accounts and file the prescribed
returns but shall not be assessed till further orders". While the
petition was pending in the High Court, Ordinance No. 5 of 1959 :F
was promulgated on November 6, 1959 validating the Rules. There-
upon the respondent therein withdrew the writ petition. On Decem-
ber I 7, 1959, the Rajasthan Sales Tax Validation Act (Rajasthan
Act 43 of 1959) replaced the Ordinance. The effect of the Ordinance
and the Validation Act was to validate the Rules even if any defect
existed in the making of the Rules. On December 4, 1959, the Sales G
Tax Officer called upon the respondent therein to pay tax due by him
within a week as the writ petition had been withdrawn and dismissed.
The respondent had filed his returns earlier and also had deposited
certain amounts towards tax. On April 25, 1960, the Sales Tax
H
(I) [1965] 2 SCR 805.
600 SUPREME COURT REPORTS (1982] ] S.C.R.
A Officer made an assessment in respect of the accounting period
November 3, 1956 to October 22, 1957 and also proceeded to impose
a penalty of Rs. 400/- under section 16(1) (b) of the Act. Justifying
the imposition of penalty, he observed thus :
"The assessee has not deposited tax of the quarters on
B
the due date, the tax deposited for 4th quarter is very late,
i.e., after two years the assessee was given a notice and in
reply to which he referred the stay order of the Hon 'ble
High Court granted to him in a writ petition filed challen-
ging the validity of sales tax rules made under the Act. The
c stay order of the Hon'ble High Court does not say that the
assessee is allowed to withhold the tax. On the contrary,
it directs that the petitioner (assessee) will keep proper
accounts and file prescribed returns but shall not be asses-
sed. This clearly shows that the assessee should have filed
returns in time and according to section 7(2) the treasury
D challan of the deposit should have accompanied them.
This amounts to contravention of the mandatory provisions.
The writ was dismissed on 23-4-58 sic (23-11-59), even the
amount was not deposited till 17-12-59. This shows that
the assessee withheld the tax intentionally''.
E The 'Deputy Commissioner of Sales Tax (Appeal), Kota
dismissed the appeal upholding the above penalty. Similarly on
December 6, 1960, the Sales Tax Officer assessed the respondent in
respect of accounting period October 23,1957 to November 10, 1958
and imposed a penalty of Rs. 1,000/- for not depositing the tax in
time on the same gronnds. The respondent questioned the penalties
F in respect of the aforesaid two years before the High Court. The •
High Court quashed them. Against the orders of the High Court,
the State of Rajasthan filed two appeals which were disposed of by
this Court by the judgment rendered in the above case. The judg-
ment of this Court depended upon the true construction of clause
(b) section J6(1) of the Act which read :
-
G
"16. (!)-If any person-
W .................................... , m
H (b) has without reasonable cause failed to pay the tax
due within the time allowed; or
ASSOCIATBD CBMBNr v. C.T.O. (Venkataramiah, J.) 601
(c) has without reasonable cause failed to furnish the A
return of his turnover, or failed to furnish it within
the time allowed; or
the assessing authority may direct that such person shall
pay by way of penalty, in the case referred to in clause (a)
in. addition to the fee payable by him, a sum not exceeding
Rs. 50/- and in the case referred to in clause (b), in addi-
tion to the amount payable by him, a sum not exceeding
half of that amount, and that in cases referred to in clauses
.. (c) and (d), in addition to the tax payable by him, a sum
not exceeding half the amount of tax, determined; in the
c
case referred to in clause (e), in addition to the tax payable
by him, a sum not exceeding double the amount of tax, if
any which would have been avoided if taxable turnover as
returned by such person had been accepted as correct turn-
over and in the cases referred to in clauses (f), (ff) and D
(g), a sum not excoeding R~. 100/-".
Sikri, J. (as be then was) who delivered the judgment of this
Court observed thus :-
"In our opinion, there has been no breach of s. 16(1)
(b) of the Act, and consequently, the orders imposing the
penalties cannot be sustained. According to the terms of
E
section 16(1) (b), there must be a tax due and there must
be a failure to pay the tax due within the ti me allowed.
There was some discussion before us as to the meaning of
the words 'time allowed', but we need not decide in this
case whether the words 'time aUowed' connote time allowed
by an assessing authority or time allowed by a provision in
the Rules or the Act, or all these things, as we are of the
F
view that no tax was due within the terms of s. 16(1) (bl of
the Act. Section 3, the charging section, read with s. 5
makes tax payable, i.e. creates a liability to pay the tax.
That is the normal function of a charging section in a
taxing statute. But till the tax payable is ascertained by the
G
assessing authority under s. 10, or hy the assessee under
s. 7(2), no tax can be said to be due within s. 16(1) (b) of
the Act, for till then there is only a liability to be assessed
to tax." (underlining by us).
A careful reading of the above passage shows that this Court H
held that section 16(1) (b), which provided for the imposition of
602 SUPREME COURT REPORTS [1982] 1 S.C.R.
A penalty when an assessee had without.reasonable cause failed to pay
the tax due within the time allowed, was not attracted as no tax was
due, within the terms of section 16(1) (b) even though it was payable
by virtue of section 3 read with section 5 of the Act. Now section
llB (a) which provides for levying interest on failure to pay tax,
-
states that if the amount of any tax payable under sub'sections (2)
B and (2A) of section 7 is not paid within the period allowed the dealer
shall be liable to pay interest at the prescribed rate during the time
he continues to make default in' the payments, Section llB(a) of
the Act does not refer to any tax due.
C At this stage it is necessary to refer to certain legislative
changes that have taken place since the decision in Ghasi/al' s case
(supra) was delivered. Section 16( I) (c) as it stood then has been
amended and section 7AA providing for levy of penalty for failure
to furnish:returns has been inserted in the Act by Rajasthan Act 11
of 1969. Section 7AA reads thus :-
D
"1 AA. Penalty for failure to furnish returns-If the
assessing authority in the course of any proceedings under
this Act is satisfied that any dealer has without reasonable
cause failed to furnish the return under sub-section (1) of
section 7 within the time allowed, he may direct that such
E dealer shall pay by way of penalty, in addition to the
amount of the tax, if any, payable by him, a sum equal to
two per cent of the tax, for every month during which the
default continued but not exceeding in the aggregate fifty
per cent of the tax."
F
Section 16(1) as it now stands does not deal with levy of
penalty for not filing the prescribed return as it is provided by
section 7AA set out above. It is also to be pointed out that sub-
section (2A) was inserted in section 7 by Rajasthan Act 13 of 1963
providing that notwithstanding anything contained in sub-section (2)
G of section 7 the State Government may by notifi~ation in the Official
Gazette require any dealer or cla!s of dealers specified therein to pay
tax at intervals shorter than those prescribed under section 7(1). In
such cases the proportionate tax on the basis of the last return has
to be deposited at the intervals specified in the said notification in
H
advance. These features clearly show that the tax that is payable
under section 3 read with section 5 of the Act has to be paid along-
ASSOCIATED CEMENT v. C.T.O. ( Venkataramiah, J.) 603
A
with the return within the time allowed for that purpose and if
• section 7(2) applies it has to be paid in advance at stated intervals.
Section I !B with which we are concerned wa> added by Rajasthan
Act II of 1969. Clause (a) of section JIB states that if the amount
of any tax payable under sub-sections (2) and (2A) of section 7 is
not paid within the period allowed interest at the prescribed rate has B
to be paid on that amount from the day commencing after the end
of the said period. 'Period allowed' means period allowed by the
Act and the Rules or such extended period under the proviso to
section 7(1). It is thus clear that in cases to which section 7(2) of
the Act applies interest has to be paid on the tax payable but which
has not been paid from the last date on which the return has to be c
filed for the assessment year in question and in cases to which sub-
section (2A) is applicable, from the last date on which the advance
tax has to be paid. The amount of interest has no doubt to be
calculated after the actual amount of tax payable is assessed and
necessary adjustments are made. We do not think that in taking
the above view we have in any way disregarded the decision in D
Ghasila/' s case (supra) in which the question of payment of interest
under section ! IB did not at all arise for consideration.
Our learned Brother Bhagwati, J. in his opinion while dealing
with the applicability of section I JB(a) has observed that the scheme E
of tlll'ation envisaged in the Act clearly shows that it is only when
the assessment is made and specified in the notice of demand or in
the absence of such specification thirty days from the date of service
of such notice expires that the amount of tax as assessed becomes
payable by an assessee. With great respect, we have to state that
we depend upon Ghasilal' s case (supra) itself to hold that for pur- F
poses of section I IB(a) the tax becomes payable before assessment
is made by virtue of section 3 read with section 5 and sub-sections
(2) and (2A) of section 7 of the Act and the Rules framed there·
under, even though, it becomes due when return is filed under
section 7(2) or ascertained under section JO. That a tax can become
payable even before assessment is also clear from the observations G
of Sikri, J. (as he then was) in Ghasilal' s case (supra) to the effect
that "section 3, the charging section read with section 5, makes tax
payable ie. creates a liability to pay the tax. .. ....... But, till the
tax payable is ascertained by the assessing authority under section
10 or by the assessee under section 7(2), no tax can be said to be due ff
604 SUPREME COURT REPORTS [1982] I S.C.R.
A within section 16(1) (b) of the Act for till then there is only a liabi·
lity to be asses,ed to tax".
(emphasis added)
We are of opm1on that either by delaying the filing of the
B return or not filing it all or by filing a return wrongly claiming that
a certain part of the turnover is not taxable or by not disclosing a
part of the taxable turnover in the return an assessee cannot escape
the liability to pay interest under section l lB(a) on the amount of
tax withheld, as a consequence of his own action or inaction, from
the last date on which it had to be paid as per sub-section (2) or
c sub-section (2A) of section 7, as the case may be, read with the
Rules. An assessee cannot contend that interest does not accrue
under section l IB(a) on the tax payable by him where the time to
file the return has elapsed until he actually files a return admitting
the liability to pay such tax or until assessment is made.
D We are of the view that the statutory liability under section
l IB(a) arises wherever there is default in payment of the tax within
the period allowed by law irrespective of any doubt which an
assessee may be entertaining about the liability to pay the tax.
E It is not disputed in this case that freight charges had to be
included in the taxable turnover of the assessee mentioned in the
returns that were filed within the prescribed time underisection 7( I) of
the Act and that the tax payable in respect of freight charges should
have been paid as required by sub-section (2) of section 7 before the
returns were filed. The fact that the question relating to the
F liability of the assessee to pay sales tax in respect of the freight
charges was decided by the Supreme Court subsequently does not
in any way affect the question which arises for consideration in this
case. The decision of this Court did not create any new liability.
It only declared that such a liability was existing at the relevant
G point of time. Since it is clear that the amount of tax due in respect
of the freight charges which rwas payable under sub-section (2) of
section 7 was not paid within the period allowed, section 1IB is
clearly attracted and the liability to pay interest as required by it
arises.
B On behalf of the State Government, an alternative contention
was urged in support of the levy of interest on the tax payable in
-
ASSOCIATED CEMENT V, c:r.o. (Venkataramiah, J.) 605
respect of the freight charges relying upon the new section 11 B which A
was substituted by the Rajasthan Sales Tax (Amendment) Act, 1979
in the place of section 11 B which was in force during the relevant
period. The relevent part of the new section l IB reads thus :
"JIB. Interest on failure to pay tax, fee or penalty.
B
(I) (a) Where any registered dealer or any other dealer
has furnished returns but has not paid the tax as per return
or within the time allowed by or under the provisions of
this Act, he shall be liable to pay interest on the whole or
that part of the amount of tax which was not paid as per
returns within the time as aforesaid, at the rate of one and c
a quarter per cent per month from the date by which he
was required to pay the tax by or under the provisions of
this Act for a period of three months and at one and a half
per cent per month thereafter until the date of payment :
(b) Where any registered dealer or any other dealer has D
furnished a revised return as provided under sub.section (3)
of section 7, which revised return shows that amount of tax
larger than that already paid is payable, sucb. dealer shall
be liable to pay interest on the excess amount of tax at such
rate and for such period as provided in clause (a) of this
sub·section as if such amount of tax payable as per the E
revised return was the amount of tax payable according to
the original return; ...
It was contended that as clauses (a) and {b) of sub·section (I)
of section 11 B extracted above were declaratory in character and
merely explained what the Legislature meant by enacting section llB F
as it stood before the substitution, the assessee was liable to pay
interest on the amount of tax payable in respect of freight charges
under clause (b) of sub·section (I) of the new section 11 B. Since
we are of the view that the assessee was liable to pay interest on the
tax in question under section I IB of the Act as it stood prior to me
amendment, we do not find it necessary to express any opinion on G
this alternative contention urged on behalf of the State GJver,1ment.
In the result, we allow the appeal in part and set aside the
impugned orders to the extent they direct the assessee to pay the
penalties. The appeal in so far as the levy of interest under the H
impugned orders is concerned is dismissed. Ia view of the circusms-
tances of the case, the parties shall pay and bear their own costs.
606 SUPREME COURT REPORTS [1982] I s.c.R.
ORDER
A
In accordance with the opinion of the majority, the appeal is
allowed in part. The penalties imposed on the assessee under the
impugned orders of assessment are set aside. The appeal in so far
as the levy of interest is concerned is dismissed. The parties shall
bear their own costs.
B
N. V. K. Appeal allowed in part
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