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2010 DIGILAW 259 (GAU)

M. S. Freight Carrier (India) Private Limited v. State of Tripura

2010-04-12

T.NANDAKUMAR SINGH

body2010
JUDGMENT T. Nandakumar Singh J. 1. Heard Mr. B. N. Majumdar, learned Counsel for the petitioner and Mr. S. Chakraborty, learned Government Advocate appearing for the respondents. 2. The only question to be decided in the present writ petition is as to whether the revision petitioner is to deposit 50 per cent of the amount of tax assessed or fifty per cent of the amount of tax assessed and also fifty percent of penalty levied while filing the revision petition under Section 70 of the Tripura Value Added Tax Act, 2004 against the assessment order passed by the assessing authority. For easy reference, relevant portions of Section 70 of the Tripura Value Added Tax Act, 2004 are quoted hereunder: 70. Revision by Commissioner.-(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any person appointed under Sub-section (1) of Section 18 to assist him, is erroneous in so far as it is prejudicial to the interest of the Revenue, he may, after giving the dealer or transporter an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such orders thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. (2) In the case of any order other than an order to which Sub-section (1) applies, passed by any person appointed under Sub-section (1) of Section18 to assist him, the Commissioner may, either on his own motion or on a petition by a dealer or a transporter for revision, call for the records of any proceeding under this Act in which any such order has been passed and may make such enquiry or cause such enquiry to be made, and subject to the provisions of this Act, may pass such orders thereon, not being an order prejudicial to the dealer or the transporter, as he thinks fit: Provided that no petition for revision by a dealer or a transporter shall be admitted by the Commissioner unless at least fifty per cent of the amount of tax assessed, or as the case may be, fifty per cent of the amount of penalty levied, has been paid by the dealer or the transporter where the order against which revision is filed relates to assessment of tax or imposition of penalty. .... 3. The writ petitioner is a registered transporter. For running transportation under the Tripura Value Added Tax Act, 2003 and Rules framed thereunder a transporter has to obtain form No. XXV of the Rules from the concerned Superintendent of Tax for giving declaration of the taxable goods carried by him in the State of Tripura. A transporter is also under obligation that after transportation of the taxable consignment into Tripura he is to deliver the same to the concerned dealers on receipt of permit in form XXIV of the Rules. 4. It is slated that the State respondents caused verification and reported on September 5, 2009 that some taxable items, numbering eleven, which were not shown in the stock list dated May 7, 2009 were found in the godown of the petitioner. As such, a show-cause notice was issued on September 5, 2009 and after hearing the parties, respondent No. 3, vide his assessment order dated September 8, 2009 held that the petitioner shall be liable for paying tax, i.e., Rs. 38,207.73 and penalty of Rs. 57,305.59. The petitioner being aggrieved by the said assessment order filed the revision petition under Section 70 of the Tripura VAT Act, 2004 before the Commissioner of Taxes. 5. 38,207.73 and penalty of Rs. 57,305.59. The petitioner being aggrieved by the said assessment order filed the revision petition under Section 70 of the Tripura VAT Act, 2004 before the Commissioner of Taxes. 5. In compliance with the proviso to Section 70(2) of the Tripura VAT Act, the petitioner had deposited 50 per cent of the amount of tax assessed, i.e., Rs. 19,101. The Commissioner of Taxes by the impugned order dated March 20, 2010 passed in Rev. Case No. 08/CH-VII/09 dated October 26, 2009 held that the petitioner is to deposit 50 per cent of the tax assessed and also 50 per cent of the penalty imposed as per the provision of Section 70 of the Tripura VAT Act, 2004. 6. Mr. Majumdar, learned Counsel appearing for the petitioner urged that proviso to Section 70 of the Tripura VAT Act clearly speaks to the extent that 50 per cent of the amount of tax assessed or as the case may be 50 per cent of the amount of penalty levied should be deposited for filing revision petition. 7. It is the basic principle of construction of statute that true meaning of a provision of law is to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law (reference Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111 ). The maxim "espressum facit cessare taciturn" which means, when there is expression mentioned of certain things, then anything not mentioned is excluded, is to be followed in interpreting a statute. 8. It is also equally settled principles of construction of statute that statutory enactments must ordinarily be construed according to their plain meaning and no words should be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. 9. Further, it is also too well known principle of construction of statute that the Legislature engrafted every part of the statute for a purpose. The legislative intention is that every part of the statute should be given effect. Legislature is deemed not to waste its words or to say anything in vain. Ref : State of Maharashtra v. Santosh Shankar Acharya (2000) 7 SCC 463 . 10. The legislative intention is that every part of the statute should be given effect. Legislature is deemed not to waste its words or to say anything in vain. Ref : State of Maharashtra v. Santosh Shankar Acharya (2000) 7 SCC 463 . 10. The court cannot add words to a statute or read words into it, which are not there, especially when the literal reading produces an intelligible result. Ref: Dadi Jagannadham v. Jammulu Ramulu (2001) 7 SCC 71 . 11. On plain perusal of the proviso to Sub-section (2) of Section 70 of the Tripura VAT Act, it is crystal clear that the word "or" appears in between "at least fifty percent of the amount of tax assessed" and "as the case may be, fifty percent of the amount of penalty levied". The word "or" is used to link alternatives according to plain dictionary meaning. Therefore, the said words "at least fifty per cent of the amount of tax assessed" and "as the case may be, fifty percent of the amount of penalty levied" should be read disjunctively inasmuch as the words "or" is used to link the alternatives. 12. This Court is of considered view that the revision petitioners, while filing the revision petition under Section 70 of the Tripura VAT Act, 2004, are not required to deposit 50 per cent of the amount of tax assessed and also 50 per cent of the amount of penalty levied. Operative portion of the impugned order dated March 20, 2010 reads as follows: As per provision of Section 70(2) of the Tripura VAT Act, 2004 pre-requisite money, i.e., 50 per cent of tax assessed and 50 per cent of penalty imposed are to be deposited by the petitioner for admission of the case as well as for stay of the operation of the orders of the lower forum. 13. On a bare perusal of the impugned order dated March 20, 2010 passed by the Commissioner of Taxes, operative portion of which, quoted above, it is clear that the Commissioner of Taxes misconstrued the said proviso to Section 70(2) of the Tripura Value Added Tax Act. 14. Accordingly, the impugned order dated March 20, 2010 is required to be interfered with and, hereby set aside. In other words, the Commissioner of Taxes shall proceed with the Rev. 14. Accordingly, the impugned order dated March 20, 2010 is required to be interfered with and, hereby set aside. In other words, the Commissioner of Taxes shall proceed with the Rev. Case No. 08/CH-VII/09 dated October 26, 2009 pending before him for final disposal according to law, after hearing both the parties. 15. The writ petition is allowed with the above observation and direction.