September 2022 – Page 7

#LearningtheLaw-37-Binding Precedent of Judgement of High Court- Law declared by highest court in the State is binding on authorities or tribunals under its superintendence by CA Dr. Arpit Haldia September 3, 2020 in Learning & Law Reading Time: 14 min

Case-1- Decision of one High Court is not binding on the Other High Court but has a persuasive value-Pradip J. Mehta vs Commissioner Of Income … on 11 April, 2008

Judicial decorum, propriety and discipline required that the High Court should, especially in the event of its contra view or dissent, have discussed the aforesaid judgments of the different High Courts and recorded its own reasons for its contra view. We quite see the fact that the judgments given by a High Court are not binding on the other High Court(s), but all the same, they have persuasive value. Another High Court would be within its right to differ with the view taken by the other High Courts but, in all fairness, the High Court should record its dissent with reasons therefor. The judgment of the other High Court, though not binding, have persuasive value which should be taken note of and dissented from by recording its own reasons.

Emphasis Supplied

Case-2-There is nothing in the law which exalts the ratio of the decisions of the another High Court to the status of a binding law, nor could the ratio decidendi of those decisions be perpetuated by invoking the doctrine of Stare decisis-Valliamma Champaka Pillai vs Sivathanu Pillai And Ors on 24 August, 1979 Equivalent citations: 1979 AIR 1937, 1980 SCR (1) 354

There is nothing in the States Reorganisation Act, 1956 or any other law which exalts the ratio of the decisions of the Travancore High Court to the status of a binding law, nor could the ratio decidendi of those decisions be perpetuated by invoking the doctrine of Stare decisis. At best, they have a persuasive effect and not the force of binding precedents on the Madras High Court.

Emphasis Supplied

Case-3-Whether Income Tax Officer refuse to modify its order of in light of decision of another high court -Consolidated Pneumatic Tool Co. … vs Commissioner Of Income-Tax on 15 September, 1993 Equivalent citations: 1994 209 ITR 277 Bom

In view of the above decision of this court, we are of the clear opinion that the Income-tax Officer was justified in holding that the decision of the Calcutta High Court is not a binding precedent for courts, authorities or tribunals outside its territorial jurisdiction and on that basis the Income-tax Officer was right in refusing to modify its order in the light of the decision of the Calcutta High Court.

Emphasis Supplied

Case-4-There is no binding precedent of decision of one high court on other High Courts or on any subordinate Courts or tribunals falling within the jurisdiction of other high court- CIT vs. Thana Electricity Supply Co. Ltd. (1994) 206 ITR 727 (Bom)

The decision of one High Court is neither binding precedent for another High Court nor for Courts or tribunals outside its own territorial jurisdiction. It is well-settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the Court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court, it may, at best, have only persuasive effect. By no amount of stretching of the doctrine of stare decisis, can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Courts or tribunals within their territorial jurisdiction are concerned. Any such attempt will go counter to the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. The fact that there is only one decision of any one High Court on a particular point or that a number of different High Courts have taken identical views in that regard is not at all relevant for that purpose. Whatever may be the conclusion, the decisions cannot have the force of binding precedent on other High Courts or on any subordinate Courts or tribunals within their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all Courts in the country by virtue of Art. 141 of the Constitution.

Emphasis Supplied

Case-5-Statement of the law by a Division Bench of a High Court is considered binding on a Division Bench of the same or lesser number of Judges of the same High Court-Union Of India & Anr vs Raghubir Singh (Dead) By Lrs. Etc on 16 May, 1989 Equivalent citations: 1989 AIR 1933, 1989 SCR (3) 316

There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative there to, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.

The Hon’ble Court further observed that

And in Mattulal v. Radhe Lal, [1975] 1 SCR 127 this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be, preferred over the deci- sion of a Division Bench of a smaller number of Judges. This Court also laid down in Acharaya Maharajshri Narandrapra- sadji AnandprasadjiMaharaj etc. etc. v. The State of Gujarat & Ors., [1975] 2 SCR 317 that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or other-wise of the views of the other. The principle was reaffirmed in Union of India & Ors. v. Godfrey Philips India Ltd., [1985] 4 SCC 369..

Emphasis Supplied

Case-6-Law declared by highest court in the State is binding on authorities or tribunals under its superintendence-East India Commercial Co. Ltd. v. Collector of Customs (AIR 1962(SC) 1893 (at p.1905)

We, therefore, hold that the law declared by the highest court in the State is binding on authorities or Tribunals under its superintendence, and they cannot ignore it…….

Case-7-It is implicit in the power of supervision conferred on a superior Tribunal that all the Tribunal subject to its supervision should conform to the law laid down by it- Baradakanta Mishra v. Bhimsen Dixit (AIR 1972 SC 2466)

It would be anomalous to suggest that a Tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a Tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior Tribunal that all the Tribunal subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer.

Emphasis Supplied

Case-8-Requirement of Judicial Decorum-Mahadeolal Kanodia v. Administrator General of West Bengal(AIR 1960 SC 936) (at p.941)

“Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another’s decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view, the result would be utter confusion. The position would be equally bad where a judge sitting singly in the High Court is of opinion that the previous decision of another single judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench.”

Case-9-Binding Precedent of Judgement of another high court in case of provisional assessment rather than regular assessment-Siemens India Ltd. And Another vs K. Subramanian, Ito, Companies … on 30 March, 1982 Equivalent citations: (1983) 34 CTR Bom 23, 1983 143 ITR 120 Bom, 1983 13 TAXMAN 146 Bom

Where a High Court of another State has decided a point and the same point arises in the making of a provisional assessment, in my opinion, it is not open to the ITO to ignore that decision, whatever may be the position in the making of a regular assessment, for, in a provisional assessment, an assessee has no opportunity to satisfy the ITO about the correctness of that decision.

The High Court further observed that

The question is of the extent and nature of the powers of an ITO while making a provisional assessment in a summary manner. If the Tribunal has decided a case in a particular way and the same point arises in a provisional assessment, it is implicit from the nature of a provisional assessment that the ITO should not take a different view, because there is no opportunity to the assessee to convince the ITO why he should not take a view different from that taken by the Tribunal and no remedy is open to him to correct the view taken by the ITO. Whether what has been stated in Salmond on Jurisprudence would apply to regular assessments is not a question with which I am concerned, but it is not open to the ITO while making a provisional assessment to depart from the view taken by the Tribunal and strike out on a line of his own to the prejudice of the assessee.

Emphasis Supplied

Case-10-Where section was already declared ultra vires by a competent High Court in the country and an authority like an Income-tax Tribunal acting anywhere in the country has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision of any other High Court on that question-

In view of this clear pronouncement of the Supreme Court, it is not controverted by Mr. Joshi on behalf of the revenue that an Income-tax Tribunal sitting at Madras is bound to proceed on the footing that section 140A(3) of the Act is non-existent in view of the pronouncement of the Madras High Court in the case of A.M. Sali Maricar [1973] 90 ITR 116. Actually, the question of authoritative or persuasive decision does not arise in the present case because a Tribunal constituted under the Act has no jurisdiction to go into the question of constitutionality of the provisions of that statute. It should not be overlooked that the Income-tax Act is an All-India statute and if an Income-tax Tribunal in Madras, in view of the decision of the Madras High Court, has no proceed on the footing that section 140A(3) was non-existent, the order of penalty thereunder cannot be imposed by the authority under the Act. Until contrary decision is given by any other competent High Court, which is binding on a Tribunal in the State of Bombay, it has to proceed on the footing that the law declared by the High Court, though of another State, is the final law of the land. When the Tribunal set aside the order of penalty it did not go into the question of intra vires or ultra vires. It did not go into the question of constitutionality of section 140A(3). That section was already declared ultra vires by a competent High Court in the country and an authority like an Income-tax Tribunal acting anywhere in the country has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision of any other High Court on that question. It is admitted before us that at the time when the Tribunal decided the question, no other High Court in the country had taken a contrary view on the question of constitutionality of section 140A(3). That being the position, it is not possible for us to take the view that the Tribunal in Bombay, when it set aside the order of penalty, went into the question of the constitutionality of that section and gave a finding that it is ultra vires following the decision of the Madras High Court. What the Tribunal really did was that in view of the law pronounced by the Madras High Court it proceeded on the footing that section 140A(3) was non-existent and so the order of penalty passed thereunder cannot be sustained. Emphasis Supplied

#LearningtheLaw-38-Effect on operation of order when further appeal has been filed- The mere fact that order is a subject a matter of further appeal can furnish no ground for not following it unless its operation has been suspended by a competent court; Mere filing of an appeal does not operate as a stay or suspension of the order appealed against; Question of applicability of provisions struck down by another High Court unless the Supreme Court upsets the order or stays the operation of Order by CA Dr. Arpit Haldia September 3, 2020 in Learning & Law Reading Time: 6 min

Case-1-The mere fact that order is a subject a matter of further appeal can furnish no ground for not following it unless its operation has been suspended by a competent court-Union Of India And Others vs Kamlakshi Finance Corporation … on 24 September, 1991-Equivalent citations: AIR 1992 SC 711, 1994 (46) ECC 129, 1991 ECR 486 SC, 1991 (55) ELT 433 SC, JT 1992 (1) SC 85, 1991 (2) SCALE 635, (1992) 1 SCC 648, 1992 Supp (1) SCC 443, 1991 (2) UJ 617 SC

The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not “acceptable” to the department – in itself an objectionable phrase – and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws.

Emphasis Supplied

Case-2- As is well-known, mere filing of an appeal does not operate as a stay or suspension of the order appealed against-Collector Of Customs, Bombay vs M/S. Krishna Sales (P) Ltd. on 9 September, 1993 Equivalent citations: AIR 1994 SC 1239, 1994 (73) ELT 519 SC, 1993 (4) SCALE 228, 1994 Supp (3) SCC 73

According to the said para 4, the goods will not be released even where the party succeeds in cases where the customs authorities decide to go in appeal before the Tribunal or the Supreme Court. They will consider the issuance of such certificate only after the decision of the Tribunal or the Supreme Court, as the case may be. The learned Counsel for the respondent characterises the said direction as arbitrary and contrary to law. We see the force in his submission. If the authorities are of the opinion that the goods ought not to be released pending the appeal, the straight-forward course for them is to obtain an order of stay or other appropriate direction from the Tribunal or the Supreme Court, as the case may be. Without obtaining such an order they cannot refuse to implement the order under appeal. As is well-known, mere filing of an appeal does not operate as a stay or suspension of the order appealed against. Moreover, such detention is likely to create several complications relating to the demurrage charges besides the possible deterioration of the machinery and goods. We hope and trust that the Collector of Customs, Bombay shall appropriately revise the said public notice in the light of the observations made herein. If he does not do so, there is a likelihood of the customs authorities being themselves made liable for demurrage charges in appropriate cases.

Emphasis Supplied

Case-3-The mere filing of an appeal against the order of the appellate authority, and the pendency of the said appeal, cannot be shown as sufficient grounds for not giving effect to the order of the Commissioner of Customs (Appeals), dated 16.9.2011. M/S. Supra Bio-Tech vs 3 The Additional Commissioner on 24 January, 2012-(Mad HC)

17. The mere filing of an appeal against the order of the appellate authority, and the pendency of the said appeal, cannot be shown as sufficient grounds for not giving effect to the order of the Commissioner of Customs (Appeals), dated 16.9.2011. Even though the National Centre for Mass Spectrometry, Indian Institute of Chemical Technology, Hyderabad, had by its communication, dated 9.12.2010, had opined that the samples of the goods imported sent to it, did not show any presence of pesticides or Oxymatrine, the refusal of the respondents to release the goods in question cannot be held to be valid in the eye of law.

Emphasis Supplied

Case-4-Order of CESTAT to be followed unless stay obtained by the Department against the order-Pushpanjali Silks Private Ltd., Vs. CC of Customs and another- W.P.No.9284 of 2006 (Mad HC)

Considering the above submissions made by the learned counsel for the petitioner as well as the Additional Solicitor General, I am of the view that the third respondent is duty bound to implement the orders passed by the Appellate Authority and he cannot flout the orders by not releasing the goods covered by the Bill of Entry in question. As laid down by the Hon’ble Supreme Court in 1991 (55) E.L.T. 433 judicial discipline would require that the authorities are bound by the decision of the Tribunal or the Appellate Authority. Admittedly, though the CESTAT pronounced Final Order No.174/2006 dated 20.3.2006, the Revenue has not so far obtained any order from the CESTAT suspending the operation of the said order. It is not the case of the Revenue that the order of the CESTAT has been stayed by the Hon’ble Supreme Court of India. Therefore, I am of the view that the principle laid down by the Apex Court of the land in 1991 (55) E.L.T. 433 has to be applied and the third respondent should follow unreservedly the orders of the CESTAT, Chennai.

Emphasis Supplied

Case- Question of applicability of provisions struck down by another High Court unless the Supreme Court upsets the order or stays the operation of Order-Dr.T.Rajakumari vs The Government Of Tamil Nadu on 3 August, 2016-(Mad HC)

The accepted undisputed position is that the Hon’ble Supreme Court has not stayed the operation of the Delhi High Court order dated 17.02.2016 striking down Section 2(p) of Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Act (hereinafter called ”PNDT Act”). Consequently, Rule 3(3)(1)(b) of the PNDT Act have also been struck down as ultra vires the Act.

3.In view of the aforesaid position, it is accepted that the law would be finally laid down by the Hon’ble Supreme Court and thus there is no point in keeping this petition pending and whatever the declaration of law by the Hon’ble Supreme Court would be equally applied. The only question is as to what would happen till the Hon’ble Supreme Court examines the issue. In this behalf, if the Hon’ble Supreme Court had stayed or would stay the operation of the Judgment, then only could those provisions struck down again come in force.

4. It is trite to say that once a High Court has struck down the provisions of the Central Act, it cannot be said that it would be selectively applied in other States. Thus, there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon’ble Supreme Court upsets the Judgment or stays the operation of the Judgment.

Emphasis Supplied

#LearningtheLaw-39-If a person has set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than he in his turn got the statute declared unconstitutional, and got a favorable decision; Can an order passed earlier by an authority be rectified on the basis of subsequent decision of Jurisdictional High Court or Supreme Court-Part I

by CA Dr. Arpit Haldia September 4, 2020 in Learning & Law Reading Time: 10 min

Case-1- If a person has set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than he in his turn got the statute declared unconstitutional, and got a favorable decision-Tilokchand Motichand & Ors vs H.B. Munshi & Anr on 22 November, 1968 Equivalent citations: 1970 AIR 898

The question is: can the petitioner in this case take advantage, after a lapse of a number of years, of the decision of this Court? He moved the High Court but did not come up in appeal to this Court. His contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within his knowledge and therefore he did not know of it and pursue it in this Court. To that I answer that law will presume that he knew the exact ground of unconstitutionality. Everybody is presumed to know the law. It was his duty to have brought the matter before this Court for consideration. In any event, having set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than he in his turn got the statute declared unconstitutional, and got a favorable decision. If I were to hold otherwise, then the decision of the High Court in any case once adjudicated upon and acquiesced it may be questioned in a fresh litigation revived only with the ‘argument, that the correct position was not known to the petitioner at the time when he abandoned his own litigation. I ,agree with the opinion of my brethren Bachawat and Mitter, JJ. that there is no question here of a mistake of law entitling the petitioner to invoke analogy of the Article in the Limitation Act. The grounds on which he moved the Court might well have impressed this Court which might have also have decided the question of the unconstitutionality of the Act as was done in the subsequent litigation by another party. The present petitioner should have taken the right ground in the High Court and taken it in appeal to this Court after the High Court decided against it. Not having done so and having abandoned his own litigation years ago, I do not think that this Court should apply the analogy of the Article in the Limitation Act and give him the relief now.

Emphasis Supplied

Case-2-Can an order passed earlier by an authority be rectified on the basis of subsequent decision of Jurisdictional High Court or Supreme Court- M/S Mepco Industries Ltd.Madurai vs Commr.Of Income Tax & Anr on 19 November, 2009

The Supreme Court dealt with the decision in the matter of Kil Kotagiri Tea and Coffee Estates Company Limited vs. Income Tax Appellate Tribunal & Ors., reported in [1988] 174 I.T.R.579

In Kil Kotagiri Tea and Coffee Estates Company Limited vs. Income Tax Appellate Tribunal & Ors., reported in [1988] 174 I.T.R.579, the facts were as follows: the assessee claimed interest on advance tax paid by it in excess but beyond the due dates. The Income Tax Officer disallowed the claim of the assessee. The Commissioner of Income Tax upheld the claim of the assessee. Following the decision of a learned Single Judge of the Kerala High Court in A. Sethumadhavan vs. Commissioner of Income Tax [1980] 122 I.T.R.587, the Tribunal held that belated payments were not to be taken into account as advance tax for the purpose of Section 214 of the Income Tax Act, and, therefore, interest was not admissible for such belated payments. However, subsequently, a Division Bench of the same High Court in Santha S. Shenoy vs. Union of India [1982] 135 I.T.R.39, reversed the decision of the learned Single Judge in A. Sethumadhavan (supra) and held that payment of tax made within the financial year, though not within specified dates, should be treated as advance tax and, consequently, the assessee was entitled to interest on excess tax paid. The assessee filed an application under Section 154 of the Act for rectification of the order of the Tribunal in view of the later decision in Santha S. Shenoy (supra). On the facts of that case, the Kerala High Court came to the conclusion that the rectification contemplated under Section 154 must be a `rectifiable mistake’ which is a mistake in the light of the law in force at the time when the order sought to be rectified was passed.

The Supreme Court held that Kerala High Court in the above decision laid down a principle of law-

The Kerala High Court also examined the judgement of the Calcutta High Court in Jiyajeerao Cotton Mills Limited (supra) and held that the said decision was distinguishable. The High Court laid down a principle of law, which was applicable across the board, namely, payment of advance tax made within the financial year, though not within the specified dates, should be treated as advance tax and, therefore, the assessee was entitled to interest on excess tax paid. The judgement in Kil Kotagiri Tea and Coffee Estates Company Limited (supra) is not applicable to the facts of the present case, as stated above.

The Supreme Court dealt with the decision in the matter of Jiyajeerao Cotton Mills Limited vs. Income Tax Officer, Calcutta & Ors., reported in [1981] 130 I.T.R. 710

Calcutta High Court in the case of Jiyajeerao Cotton Mills Limited vs. Income Tax Officer, Calcutta & Ors., reported in [1981] 130 I.T.R. 710. In that case, the appellant- assessee derived profits from three industries, one of which qualified for special rebate under Part-I of Schedule-I to the Finance Act, 1965, for the Assessment Year 1966-1967. In granting this special rebate, the Income Tax Officer computed the profits attributable to that industry without deducting development rebate granted to the appellant. The Income Tax Officer sought to rectify the mistake under Section 154 of the Act by re- computing the profits by deducting the development rebate. The appellant filed a writ petition for setting aside the notice of rectification. It was held by the Calcutta High Court that since there was conflict of opinion on computation of profits of priority industry for granting tax relief which conflict was resolved by the Supreme Court later on for the subsequent Assessment Year 1967- 1968, such subsequent decision of the Supreme Court did not obliterate the conflict of opinion prior to it. It was held that, under Section 154 of the Act, rectification was not permissible on debatable issue.

It was finally held by the Supreme Court-

On the facts of the present case, we are of the view that the present case involves change of opinion. In this connection, it must be noted that Government grants different types of subsidies to the entrepreneurs. The subsidy in Sahney Steel and Press Works Limited (supra) was an incentive subsidy linked to production. In fact, in Sahney Steel and Press Works Limited (supra) [at page 257], this Court categorically stated that the Scheme in hand was an incentive Scheme and it was not a Scheme for setting up the industries. In the said case, the salient features of the Scheme were examined and it was noticed that the Scheme formulated by the Government of Andhra Pradesh was admissible only after the commencement of production. In Income Tax matters, one has to examine the nature of the item in question, which would depend on the facts of each case. In the present case, we are concerned with power subsidy whereas in the case of Commissioner of Income Tax vs. Ponni Sugars and Chemicals Limited, reported in [2008] 306 I.T.R.392, the subsidy given by the Government was for re-paying loans. Therefore, in each case, one as to examine the nature of subsidy. This exercise cannot be undertaken under Section 154 of the Act. There is one more reason why Section 154 in the present case was not invokable by the Department. Originally, the Commissioner of Income Tax, while passing orders under Section 264 of the Act on 30th April, 1997, had taken the view that the subsidy in question was a capital receipt not taxable under the Act. After the judgement of this Court in Sahney Steel and Press Works Limited (supra), the Commissioner of Income Tax has taken the view that the subsidy in question was a revenue receipt. Therefore, in our view, the present case is a classic illustration of change of opinion.

Emphasis Supplied

Case-3- Subsequent to the order, the jurisdictional High Court or their Lordships of the Supreme Court interpret the same provision and take a contrary view. The apparent effect of the judgment interpreting the provision is that the view taken by the authority is rendered erroneous. It is not in conformity with the provision of the statute. Thus, there is a mistake-CIT v. Smt.Aruna Luthra, (2001) 252 ITR 76 (P & H)

In a given case, on interpretation of a provision, an authority can take a view in favour of one of the parties. Subsequent to the order, the jurisdictional High Court or their Lordships of the Supreme Court interpret the same provision and take a contrary view. The apparent effect of the judgment interpreting the provision is that the view taken by the authority is rendered erroneous. It is not in conformity with the provision of the statute. Thus, there is a mistake. Should it still be perpetuated? If the contention raised on behalf of the assessee were accepted, the result would be that even though the order of the authority is contrary to the law declared by the highest Court in the state or the country, still the mistake couldn’t be rectified for the reason that the decision is subsequent to the date of the order.”

The Full Bench of Punjab and Haryana High Court Held that

“If the issue of error in the order is to be examined only with reference to the date on which it was passed, it may be possible to legitimately contend that it was legal on the date on which it was passed. The subsequent decision has only rendered it erroneous or illegal. However, there was no error much less than an apparent error on the date of its passing. Thus, provision of s. 154 is not applicable. However, such a view shall be possible only if the provision were to provide that the error has to be seen in the order with reference to the date on which it was passed. Such words are not there is the statute. Resultantly, such a restriction cannot be introduced by the Court. Thus, the contention raised by the counsel for the assessee cannot be accepted”.

Emphasis Supplied

Can provisions of Section 42 of CGST Act, 2017 read with Rule 69 of CGST Rules, 2017 be invoked for creation of demand for Input Tax Credit Mismatch for the Year 2017-18/2018-19?

These days notices under Section 73/74 of CGST Act, 2017 are being issued on account of mis-match of Input Tax Credit in GSTR-3B vs GSTR-2A merely by referring Section 73/74 of CGST Act, 2017.

That at the outset, it would be apt to mention that provisions of Section 73/74 of CGST Act, 2017 are provisions of Determination of Tax to be paid. However, for the purpose of invoking provisions of Section 73/74, there has to be a condition as imposed by any other provision of the Statute, which has been contravened to invoke provisions of Section 73/74 and to arrive at the Input Tax credit Wrongly availed.

The question is whether provisions of Section 42 of CGST Act, 2017 can be invoked for creating demand for the year 2017-18/2018-19 on account of mis-match of Input Tax credit in GSTR-3B vs GSTR-2A because other than that no provision of the statute requires matching of Input Tax credit. Not that as if it can be invoked for 2019-20 but that would be covered in another article.

The article briefly tries to analyse the situation as below-

Provisions of Section 42 are applicable only in cases for matching, reversal and reclaim of Credit and are based on details of inward supply filed by the registered person

Provisions of section 42 are applicable for matching, reversal and reclaim of input tax credit. It would be apt to quote the relevant provision of Section 42 which are as follows:-

42. Matching, reversal and reclaim of input tax credit.— (1) The details of every inward supply furnished by a registered person (hereafter in this section referred to as the ―recipient‖) for a tax period shall, in such manner and within such time as may be prescribed, be matched––

Thus, it can be observed that Section 42(1) provides that details of every inward supply furnished by a registered person for a tax period shall be matched for the parameters as provided there in and discussed herein below.

Details of Inward Supply in GSTR-2 were required to be filed under Section 38 of CGST Act, 2017

That for applicability of provision of Section 42, details of inward supply had to be furnished. That detail of inward supply had to be furnished under Section 38 of CGST Act. Further provision of Section 38 of the CGST Act, 2017 are being reproduced herein under as follows:

(5) Any registered person, who has furnished the details under sub-section (2) for any tax period and which have remained unmatched under section 42 or section 43, shall, upon discovery of any error or omission therein, rectify such error or omission in the tax period during which such error or omission is noticed in such manner as may be prescribed, and shall pay the tax and interest, if any, in case there is a short payment of tax on account of such error or omission, in the return to be furnished for such tax period:

It can be observed from the above that Section 38 which provided for filing of GSTR-2 also provided that if recipient has furnished return in Form GSTR-2 and amounts have remained unmatched under Section 42 and 43, then in such case interest would be payable for short payment of tax on account of such error and omission.

Therefore, the basic premises of Section 42 rested upon the details of inward supply furnished under Section 38. The return to be furnished under Section 38 was GSTR-2.

That the time limit for furnishing GSTR-2 in Section 38 has not been notified till date

That due date for filing of Form GSTR-2 for the year 2017-18/2018-19 has not been notified till date. Para 2 of Notification No. 44/2018-Central Tax Dated 10^th September 2018 provided as follows:-

2. The time limit for furnishing the details or return, as the case may be, under subsection (2) of section 38 and sub-section (1) of section 39 of the said Act, for the months of July, 2017 to March, 2019 shall be subsequently notified in the Official Gazette.

It is pretty clear from the above that the time limit for furnishing the return under section 38 have not been notified in official gazette till date and since the time limit for filing the return have not been notified till date therefore Section 42 itself cannot be used until then. The very basis of Section 42 is the details of inward supplies furnished under Section 38 and matching of the same in the manner as provided therein. Since GSTR-2 itself has not been brought in place therefore its matching procedure and implications of non-matching of the credit as provided under section 42 (3), 42(5) and 42(6) cannot also be implemented.

Rule 69 of CGST Rules provide that the matching under Section 42 of CGST Act, 2017 of Details of Inward Supply should be extended if the due date of filing of GSTR-2 under section 38 has been extended

The relevant extract of Rule 69 is being reproduced hereunder:

69. Matching of claim of input tax credit .-The following details relating to the claim of input tax credit on inward supplies including imports, provisionally allowed under section 41, shall be matched under section 42 after the due date for furnishing the return in FORM GSTR-3-

(a) Goods and Services Tax Identification Number of the supplier;

(b) Goods and Services Tax Identification Number of the recipient;

(d) invoice or debit note date; and

(e) tax amount:

Provided that where the time limit for furnishing FORM GSTR-1 specified under section 37 and FORM GSTR-2 specified under section 38 has been extended, the date of matching relating to claim of input tax credit shall also be extended accordingly:

That it can be clearly seen that the rule provides that if the time limit for furnishing of GSTR-2 under section 38 has been extended then the date of matching relating to claim of input tax credit shall also be extended accordingly. That Form GSTR-2 for the period till date has not been notified till date and Para 2 of Notification No. 44/2018-Central Tax Dated 10th September 2018 provided as follows:-

That since till date due date for filing of details of inward supply has not been notified, therefore matching as per the provisions of Section 42(1) read with Rule 69 should not be required to be done till date. The date has automatically been extended until the date of filing of GSTR-2 for the relevant period.

Conclusion-

That since the matching under Section 42 is only possible on filing of details of inward supplies under Section 38 and date of filing of Return under GSTR-2 under section 38 has not been notified till date, therefore the date of matching by virtue of First Proviso to Rule 69 has also been extended. Once the date of matching under Section 42 read with Rule 69 has been extended then any action on account of non-compliance of discrepancies as highlighted under the provision of Section 42 cannot be initiated.

It has to be borne in mind that provisions of Section 42 are a complete code in itself. Once the section is complete code in itself and it provides a manner and the procedure for doing the things and if the system itself is not in place for compliance of provisions of that section, then in such case there cannot be a case for non-compliance of the provisions contained in the section itself.

Therefore, in view of the above fact and since the law cannot compel the assessee to do the impossible, since firstly by virtue of Proviso to Rule 69 of CGST Rules Matching under Section 42 cannot be done until the due date for Return under Section 38 has been notified and the same has expired, therefore by virtue of the legal principle lex non cogitate ad impossible (the law does not compel the doing of impossibilities), no implications for non-compliance of Section 42 can be casted upon the assessee.

Can Classification/Tax Rate of Supply be decided in Refund Proceedings-A Brief Insight-Part II

It has been a matter of great debate that whether Tax Rate/Classification of Supply be decided in Refund Proceedings or Whether Refund of Inverted Duty Structure be denied as Tax Rate is incorrect without invoking provisions of Section 73/74. For this lets see definition of of “assessment” as provided under the Section 2(11) of CGST Act, 2017 which provides as follows

(11) “assessment” means determination of tax liability under this Act and includes self-assessment, re-assessment, provisional assessment, summary assessment and best judgment assessment.

Further Section 59 of CGST Act, 2017 relating to self-assessment provides that every registered person shall self-assess the taxes payable under this Act and furnish a return for each tax period as specified under section 39. That Self-assessment has been considered as “assessment” under Section 2(11) of CGST Act, 2017 and rate once decided in self-assessment cannot be altered in refund proceedings and if at all it has been re-decided it can only be done in one of the proceedings which have been covered under “assessment” in GST rather that refund proceedings.

A reference can be made to the decision of Hon’ble Apex Court in the matter ITC Ltd vs CCE, Kolkata Iv on 18 September, 2019 although in Custom Regime, wherein the question before the Apex Court was

The question involved in these appeals is whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty can be entertained?

The relevant definition of the term “assessment” has been defined under the customs act as under-

“2(2) “assessment” includes provisional assessment, self assessment, reassessment and any assessment in which the duty assessed is nil;”

Hon’ble Apex Court in Para 41 of the Judgement held that

41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise.

The definition of “assessment” in GST is similar to the one in Customs Act and under both the statutes the term “assessment” includes self-assessment. That Hon’ble apex court as referred above held that provisions of refund are more or less in the nature of execution proceedings and it is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. Therefore, Hon’ble apex court held that claim for refund cannot be denied unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings.

In case of refund under inverted duty structure, since tax has been self-assessed by the taxpayer while filing of return as per the provisions of Section 59 of CGST Act, 2017, therefore, if at all the rate has to be decided afresh, it can only be decided initiating assessment proceedings under Section 73/74 and not merely invoking refund proceedings under Section 54 as refund proceedings are in the nature of execution proceedings.

That only compliance for the conditions laid down in Section 54 should be verified while performing the verification of refund application filed and if any disallowance of ITC/Change in Rate Structure is to be made, appropriate proceedings under Section 73/74 be initiated.

Link to Part I-Inverted Duty refund Application-Can refund application be rejected by holding that tax rate on outward supplies is incorrect and thereby if higher tax rate would have been applied no refund would have become payable; Can Refund Proceedings take shape of completion of entire assessment proceedings? https://gst-online.com/inverted-duty-refund-application-can-refund-application-be-rejected-by-holding-that-tax-rate-on-outward-supplies-is-incorrect-and-thereby-if-higher-tax-rate-would-have-been-applied-no-refund-would-hav/

Brief Introduction to E-Invoicing in GST-Part-I

Relevant Notification for E-Invoicing–Notification No. 13/2020-Central Tax Dated 21-3-2020 as amended by

(NOTIFICATION NO. 61/2020-CENTRAL TAX, DATED 30-7-2020, NOTIFICATION NO. 70/2020-CENTRAL TAX, DATED 30-9-2020, NOTIFICATION NO. 88/2020-CENTRAL TAX, DATED 10-11-2020)

Threshold for Applicability of provisions of E-Invoicing- Registered Persons whose aggregate turnover any preceding financial year from 2017-18 onwards exceeds one hundred crore rupees with effect from 1^st January 2021. Previously it has been made applicable from 1^st October 2020 for registered persons having turnover more than 500 Crore

Persons upon whom E-Invoicing is not applicable- E-invoicing rules are not applicable upon following persons-

Special Economic Zone
Rule 54(2)-Persons providing services of insurer or a banking company or a financial institution, including a non-banking financial company
Rule 54(3)- Supplier of taxable service is a goods transport agency supplying services in relation to transportation of goods by road in a goods carriage
Rule 54(4)-Supplier of taxable service is supplying passenger transportation service
Rule 54(4A)- Supplying services by way of admission to exhibition of cinematograph films in multiplex screens

Transactions upon which E-Invoicing is applicable-Any supply made by the registered persons covered under the provisions of E-Invoicing to another Registered person and for Exports.

Content of E-Invoicing have been provided vide Notification No. 60/2020-Central Tax Dated 30^th July 2020.

Trial Portal for E-Invoicing- https://einvoice1-trial.nic.in/

User Manual for E-Invoicing– https://einvoice1-trial.nic.in/Documents/EINVOICE_UserManual_Web.pdf

Brief Compilatino of Judgements on Calculation of Time Limit- How to count time limit when an act is to be done within so many days after a given event; Time Limit where certain thing has to be done within a specified period; Meaning of the Time limit having words “not less than”; Time limit using “not later than”; Time limit using “not earlier than”; Time limit providing “by a said date”

In this post, we have tried compile some of the landmark judgements relating to calculation of time limit. The terms have been used very frequently in the GST Act.

How to count time limit when an act is to be done within so many days after a given event-Jitender Tyagi vs Delhi Administration & Anr on 3 October, 1989-Equivalent citations: 1990 AIR 487, 1989 SCR Supl. (1) 341

Referred-

It has been stated in Stroud’s Judicial Dictionary, Third Edition, Volume I, page 86, as follows:

“Where an act has to be done within so many days “after” a given event, the day of such event is not to be reckoned In Smt. Manjuli v. Civil Judge, AIR 1970 Bom. 1, the provision of section 15(1) of the Village Panchayats Act, 1958 came up for interpretation before the Nagput Bench of the Bombay High Court. Section 15(1), inter alia, provides that any person who is qualified to vote is entitled to challenge the validity of the election “within 15 days after the date of the declaration of the result of the election”. The High Court in interpreting the provision rightly laid stress on the word “after” and held that the day of which the result was declared must be excluded.

This Court had also occasion to construe rule 119 of the Election Rules framed under the Representation of the People Act in T.C. Basappa v. T. Nagappa, [1955] SCR 250. Rule 119 provides, inter alia, that an election petition against a returned candidate is to be presented at any time after the publica- tion of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under rule 113. Mukh- erjea, J. (as he than was) speaking for the Bench observed as follows:

The High court seems to think that in computing period of 14 days the date of publication is to be included. This seems to us to be an unwarranted view to take which is opposed to the ordinary canons of construction. Dr. Tek Chand appearing for the respondent No. 1, plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal’s enter- taining election petition after the prescribed period in the present case.”

Held-Be that as it may, we have no hesitation in holding that in computing the period of twelve days referred to in sub-section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded and, upon such computation, it must be held that the approval of the order of detention was made within twelve days after the making of the order of detention.

Time Limit where certain thing has to be done within a specified period -Haru Das Gupta vs State Of West Bengal on 1 February, 1972 Equivalent citations: 1972 AIR 1293, 1972 SCR (3) 329

There is, however, a volume of authority in England showing that where a certain thing has to be done within a specified period, the day on which the cause of action arose, is to be excluded from computation and the day on which such action is taken is to be included.

Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. (see Halsbury’s Laws of England, (3rd ed.) vol. 37, pp. 92 and 95) There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here.

In computing the period of three months from the date of detention, which was February 5, 1971, before the expiration of which the order or decision for confirming the detention order and continuation of the detention thereunder had to be made, the date of the commencement of detention, namely, February 5, 1971, has to be excluded. So done, the order of confirmation was made before the expiration of the period of three months from the date of detention.

Meaning of the Time limit having words “not less than”- The Pioneer Motors (Private) Ltd vs The Municipal Council, … on 27 January, 1961 Equivalent citations: 1967 AIR 684, 1961 SCR (3) 609

The words ” not being ‘less than one month ” do imply that clear one month’s notice was necessary to. be given, that is, both the first day and the last day of the month had to be excluded. To put it in the language used by Maxwell on Interpretation of Statutes, 10th Edition, p. 351 :- “..when…….. not less than’ so many days are to intervene, both the terminal days are excluded from the computation,”

Time limit using “not later than”-H. H. Raja Harinder Singh vs S.Karnail Singh on 20 December, 1956 Equivalent citations: 1957 AIR 271, 1957 SCR 208

Now, it cannot be denied that the period of fourteen days provided in Rule I 1 9 (a) for presentation of an election petition is a period prescribed, and that is its true character, whether the words used are ” within fourteen days” or “not later than fourteen days”. That the distinction sought to be made by the appellant between these two expressions is without substance will be clear beyond all doubt, when regard is had to s. 81 of the Act. Section 81 (1) enacts that the election petition may be presented “within such time as may be prescribed, and it is under this section that Rule 119 has been framed. It is obvious that the rule- making authority could not have intended to go further than what the section itself had enacted, and if the language of the Rule is construed in conjunction with and under the coverage of the section under which it is framed, the words “not later than fourteen days” must be held to mean the same thing as “within a period of fourteen days”. Reference in this connection should be made to the heading of Rule 119 which is, ” Time within which an election petition shall be presented “.

Time limit using “not earlier than”- Jai Charan Lal vs State Of U.P. & Ors on 5 May, 1967 Equivalent citations: 1968 AIR, 5 1967 SCR (3) 981

In our judgment the expression “not earlier than thirty days” is not to be equated to the expression ,.not less than thirty days”. It is no doubt true that where the expression is “not less than so many days” both the terminal days have to be excluded and the number of days mentioned must be clear days but the force of the words “not earlier than thirty days” is not the same. “Not earlier than thirty days” means that it should not be the 29th day, but there is nothing to show that the language excludes the 30th day from computation. In other words, although October 26 had to be excluded the date on which the meeting was to be called need not be excluded provided by doing so one did not go in breach of the expression “not earlier than thirty days.”. The 25th of November was the 30th day counting from October 26 leaving out the initial day and therefore it cannot be described as earlier than thirty days. In other words, it was not earlier than thirty days from the date on which the (1) A.I.R. 1957 A.P. 229 notice under sub-section (2) was delivered to the-District- Magistrate. This. reading is also bome out by the other expression “not later than thirty-five days” which is used in the section. In this Court(-‘) the expression “not later than 14 days” as used in rule 119 under Representation of the People Act was held to mean the same thing as “within a period of fourteen days”. In that expression the number of days, it was held, should not exceed the number fourteen. In the sub-section we are dealing with the number of days that should not exceed thirty-five days. On a parity of reasoning not earlier than thirty days would include the 30th day but not the 29th day because 29th day must be regarded as earlier than thirty days. If the provision were “not earlier than thirty days and not later, than thirty days” it is obvious that -only the 30th day could be meant. This proves that the fixing of the date of the meeting was therefore in accordance with law. We respectfully disapprove of the view taken in the Andhra Pradesh case.

Time limit providing “by a said date”..- B.N. Agarwalla vs State Of Orissa on 16 October, 1995 Equivalent citations: 1996 AIR 385, 1995 SCC (6) 509

Learned counsel for the appellant has referred to some decisions wherein the word ‘by’ has been construed to mean that it includes the end or the expiry of the date or period indicated. As we have indicated, the meaning of the word ‘by’ is both ‘before’ as well as ‘on or before’ and, therefore, the context in which it has been used becomes decisive. Where the context does not exclude the date specified and permits its inclusion the word ‘by’ can be construed to mean ‘on’ and not ‘before’; and in that situation, specification of the limit of time by saying “by that date” would require including the specified date upto the expiry of that date for computation of the permitted period. P.C. Muthu Chettiar vs. Narayanan Chettiar and others, AIR 1928 Madras 528; Sheikh Nuroo vs. Seth Meghraj Ramkaran Marwadi, AIR 1937 Nagpur 139; T.A. Janakuara Nainar vs. Periaswamy Goundan and others, AIR 1949 Madras 376; and Dharamraj Mahadeo vs. Additional Deputy Commissioner Akola and others, AIR 1957 Bombay 154 are all decisions in which the context required the word `by’ to be read as `on’ and not `before’ to permit inclusion of the period upto the expiry of the date specified. We have already indicated that the context in the present case excludes the date specified and, therefore, excludes the meaning `on’ and requires the word `by’ to be read as `before’. Eastaugh and others vs. Macpherson, [1954] 3 All E.R. 214 supports the view we have taken that the meaning of the word `by’ in the phrase `by’ the date’ can mean `on or before the date’ or `before the date’ depending on the context in which the word `by’ has been used and the meaning to be preferred should be that which it has in the given context.

.#LearningtheLaw-7-Brief Compilation of Judgement on Use of Interpretation of Bracketed Portion in Statue; Wide Meaning of Definition may be restricted to bring it inline with the context of the Statute; All definitions in statutes generally begin with qualifying words, “unless there is anything repugnant in the subject or context”; Even the Word “means” in Definition Clause would be subject to unless there is anything repugnant in the subject or context

Interpretation of Bracketed Portion in Statue-Nahalchand Laloochand P.Ltd vs Panchali Co-Op.Hng.Sty.Ltd on 31 August, 2010

The scope of the bracketed phrase has to be seen in the context of the definition given to the word `flat’ which is true indication of intent of the legislature. It was suggested by learned senior counsel and counsel for the promoters that the phrase `and includes a garage’ must be read with the `set of premises’ and not with the user. This does not appear to be a correct reading of the expression. We are not persuaded to accept such construction. We think that statutory definition of `flat’ must be construed keeping in view the intent of the legislature and the context of the statute and, seen thus, the phrase, `and includes a garage’ in the bracket does not bring in `garage’ by itself within the meaning of word `flat’. If stand alone `garage’ (or a garage by itself) were intended by the legislature to be a `flat’ within the meaning of Section 2(a-1), that could have been conveniently conveyed by use of the expression `or garage’ after the word `business’ in the same breath as preceding uses. The bracketed phrase is rather indicative of the legislative intention to include a `garage’ as appurtenant or attachment to a flat which satisfies the ingredients of Section 2(a-1).

Wide Meaning of Definition may be restricted to bring it inline with the context of the Statute-State 0F Bombay & Others vs The Hospital Mazdoor Sabha & … on 29 January, 1960

It is clear, however, that though s. 2(j) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all services and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word “service” is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason.

All definitions in statutes generally begin with qualifying words, “unless there is anything repugnant in the subject or context”–The Vanguard Fire And … vs M/S. Fraser And Ross And Another on 4 May, 1960 Equivalent citations: 1960 AIR 971

But s. 2 begins with the words ” in this Act, unless there is anything repugnant in the subject or context ” and then come the various definition clauses of which (9) is one. It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely, unless there is anything repugnant in the subject or context. Therefore in finding out the meaning of the word ” insurer ” in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant in the subject or context. In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances. Therefore, though ordinarily the word ” insurer ” as used in the Act would mean a person or body corporate actually carrying on the business of insurance it may be that in certain sections the word may have a somewhat different meaning.

A perusal of a few sections of the Act will illustrate this and immediately show that the word ” insurer ” has been used in some sections to mean not merely a person actually carrying on the business of insurance but also a person who intends to carry on the business of insurance but has not actually started it and also a person who was carrying on the business of insurance but has ceased to do so.

Even the Word “means” in Definition Clause would be subject to unless there is anything repugnant in the subject or context- National Insurance Co.Ltd. & Anr vs Kirpal Singh (SC)

We are mindful of the fact that the word ‘means’ used in statutory definitions generally implies that the definition is exhaustive. But that general rule of interpretation is not without an exception. An equally well-settled principle of interpretation is that the use of the word ‘means’ in a statutory definition notwithstanding the context in which the expression is defined cannot be ignored in any forensic exercise meant to discover the real purport of an expression.

Referred Judgements

Lord Denning’s observations in Hotel and Catering Industry Training Board v. Automobile Proprietary Ltd. (1968) 1 W.L.R. 1526 are, in this regard, apposite when he said:

“It is true that ‘the industry’ is defined; but a definition is not to be read in isolation. It must be read in the context of the phrase which it defines, realising that the function of a definition is to give precision and certainty to a word or phrase which would otherwise be vague and uncertain-but not to contradict it or supplant it altogether”

The Vanguard Fire & General Insurance Co. Ltd. Madras v. Fraser & Ross & Anr. AIR 1960 SC 971-Statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words “unless there is anything repugnant in the subject or context”.

Paul Enterprises & Ors. v. Rajib Chatterjee and Co. & Ors. (2009) 3 SCC 709- Interpretation clause should be given a contextual meaning and that all statutory definitions must be read subject to the qualification variously expressed in the interpretation clause, which created them.

State of Maharashtra & Anr. v. B.E. Billimoria & Ors. (2003) 7 SCC 336-Meaning of an expression must be determined in the context in which the same has been used.

K.V. Muthu v. Angamuthu Ammal (1997) 2 SCC 53-Apparently, it appears that the definition is conclusive as the word “means” has been used to specify the members, namely, spouse, son, daughter, grand-child or dependent parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, open with the words “in this Act, unless the context otherwise requires” which indicates that the definitions, as for example, that of “Family”, which are indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the Legislature.

Brief Compilation of Judgement on Relevance of Illustration; Illustration cannot modify language of Section; Words of the Section prevails over Illustration; Meaning of Erroneous; Delegated Legislation and Power to Make Rules under the Act

Relevance of Illustration- Mahomed Shedol Ariffin v. Yeoh Ooi Gark (1)- Mahomed Syedol Ariffin vs Yeoh Ooi Gark on 20 July, 1916 Equivalent citations: (1917) 19 BOMLR 157

“It is the duty of a court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from an other system of jurisprudence as to the law with which they are the sections deal And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although no part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus impaired.”

Illustration cannot modify language of Section-Shambhu Nath Mehra Vs. The State of Ajmer [AIR 1956 SC 404]

“13. We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially” within the knowledge of the accused.

Words of the Section prevails over Illustration– Aniruddha Mitra vs Administrator General Bengal on 5 April, 1949 Equivalent citations: (1949) 51 BOMLR 971

It is well settled that just as illustrations should not be read as extending the meaning of a section, they should also not be read as restricting its operation, especially so, when the effect would be to curtail a right which the plain words of the section would confer.

Meaning of Erroneous-M/S. The Malabar Industrial Co. vs Commissioner Of Income-Tax, … on 10 February, 2000

An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the Income-tax Officer is unsustainable in law.

Delegated Legislation and Power to Make Rules under the Act- Agricultural Market Committee vs Shalimar Chemical Works Ltd on 7 May, 1997

23. The reasons for giving delegated power to the Government to make Rules are many, but the most prominent and dominant reasons are:

(i) The area for which powers are given to make delegated legislation may be technically complex, so much so, that it may not be possible and may even be difficult to set out all the permutations in the Statute.

(ii) The Executive may require time to experiment and to find out how the original legislation was operating and thereafter to fill up all other details.

(iii) It gives an advantage to the Executive, in the sense that a Government with an onerous legislative time schedule may feel tempted to pass skeleton legislation with the details being provided by the making of Rules and Regulations.

24. The power of delegation is a constituent element of the legislative power as a whole under Article 245 of the Constitution and other relative Articles and when the Legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and neces- sary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by the Acts as part of the Administra-tive Law.

26. The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the Legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the Legislature to another body of its choice but the Legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. These principles also apply to Taxing Statutes. The effect of these principles is that the delegate which has been authorised to make subsidiary Rules and Regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making Rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act. #LEARNINGTHELAW-7-BRIEF COMPILATION OF JUDGEMENT ON USE OF INTERPRETATION OF BRACKETED PORTION IN STATUE; WIDE MEANING OF DEFINITION MAY BE RESTRICTED TO BRING IT INLINE WITH THE CONTEXT OF THE STATUTE; ALL DEFINITIONS IN STATUTES GENERALLY BEGIN WITH QUALIFYING WORDS, “UNLESS THERE IS ANYTHING REPUGNANT IN THE SUBJECT OR CONTEXT”; EVEN THE WORD “MEANS” IN DEFINITION CLAUSE WOULD BE SUBJECT TO UNLESS THERE IS ANYTHING REPUGNANT IN THE SUBJECT OR CONTEXT used in the Act would mean a person or body corporate actually carrying on the business of insurance it may be that in certain sections the word may have a somewhat different meaning. A perusal of a few sections of the Act will illustrate this and immediately show that the word ” insurer ” has been used in some sections to mean not merely a person actually carrying on the business of insurance but also a person who intends to carry on the business of insurance but has not actually started it and also a person who was carrying on the business of insurance but has ceased to do so. Even the Word “means” in Definition Clause would be subject to unless there is anything repugnant in the subject or context- National Insurance Co.Ltd. & Anr vs Kirpal Singh (SC) We are mindful of the fact that the word ‘means’ used in statutory definitions generally implies that the definition is exhaustive. But that general rule of interpretation is not without an exception. An equally well-settled principle of interpretation is that the use of the word ‘means’ in a statutory definition notwithstanding the context in which the expression is defined cannot be ignored in any forensic exercise meant to discover the real purport of an expression. Referred Judgements Lord Denning’s observations in Hotel and Catering Industry Training Board v. Automobile Proprietary Ltd. (1968) 1 W.L.R. 1526 are, in this regard, apposite when he said: “It is true that ‘the industry’ is defined; but a definition is not to be read in isolation. It must be read in the context of the phrase which it defines, realising that the function of a definition is to give precision and certainty to a word or phrase which would otherwise be vague and uncertain-but not to contradict it or supplant it altogether” The Vanguard Fire & General Insurance Co. Ltd. Madras v. Fraser & Ross & Anr. AIR 1960 SC 971-Statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words “unless there is anything repugnant in the subject or context”. Paul Enterprises & Ors. v. Rajib Chatterjee and Co. & Ors. (2009) 3 SCC 709- Interpretation clause should be given a contextual meaning and that all statutory definitions must be read subject to the qualification variously expressed in the interpretation clause, which created them. State of Maharashtra & Anr. v. B.E. Billimoria & Ors. (2003) 7 SCC 336-Meaning of an expression must be determined in the context in which the same has been used. By CA Dr. Arpit Haldia Page: 5 Email: gstonlineinfo@gmail.com K.V. Muthu v. Angamuthu Ammal (1997) 2 SCC 53-Apparently, it appears that the definition is conclusive as the word “means” has been used to specify the members, namely, spouse, son, daughter, grand-child or dependent parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, open with the words “in this Act, unless the context otherwise requires” which indicates that the definitions, as for example, that of “Family”, which are indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the Legislature

#GSTCase-53-Blocked Input Tax Credit U/Sec 17(5) read with Section 16(1) of CGST Act, 2017: An issue to have wider ramifications in Future Nipha Exports (P.) Ltd. [2019] 102 taxmann.com 449 (AAR-WEST BENGAL)

1. Query:

Whether input tax credit is admissible on ambulances purchased for the benefit of the employees under legal requirement of the Factories Act, 1948.

2. Facts:

Applicant has factories in Howrah and Hooghly for manufacturing agricultural machinery and has purchased an ambulance for the benefit of the employees, as required under Section 45(4) of the Factories Act, 1948.

3. Observation by AAR:

The Applicant purchased the ambulance on 22/11/2018, as evident from the submitted Invoice No. INV19A001475 dated 22/11/2018 of M/s Supreme & Co Pvt Ltd (GSTIN: 19AACCA7232K1ZK). Eligibility for claiming input tax credit under section 16(1) is subject to the provisions of law at the time of occurrence of the taxable event, irrespective of when the claim is made.

4. Held

Input tax credit on inward supply of ambulance, being a motor vehicle, is not admissible under Section 17(5)(a) of the GST Act. The exception carved out under Section 17(5)(b)(iii)(A) of the GST Act for services which are obligatory for an employer to provide to its employees under any law for the time being in force is limited only to rent-a-cab, life insurance and health insurance.

5. Comment:

Following are the important issues coming out of the said judgement:

a) Eligibility of Claim of Credit of Tax Paid on Ambulance as per the amended provisions of Section 17(5) post CGST Amendment Act, 2018: Section 17(5)(a) post CGST Amendment Act, 2018 provides as follows:

(5) Notwithstanding anything contained in sub-section (1) of section 16 and sub- section (1) of section 18, input tax credit shall not be available in respect of the following, namely:—

(a) Motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely:—

(A) further supply of such motor vehicles; or

(B) transportation of passengers; or

(C) imparting training on driving such motor vehicles;

The provision restricts credit in case of motor vehicles used for transportation of persons having an approved seating capacity of not more than thirteen persons. The question now arises is whether an Ambulance falls under the motor vehicles used for transportation of persons. There are two conditions to be fulfilled before falling under this clause:

Motor Vehicle should be used for Transportation of Persons: Does ambulance falls under the category of Motor Vehicle for Transportation of persons:

HSN Code for Ambulance falls under 8703 under the heading “Motor cars and other motor vehicles principally designed for the transport of persons”. Therefore, ambulance is a vehicle used for transportation of persons. The next question is regarding the seating capacity.

Whether the seating capacity of the Ambulance is more than or less than thirteen persons:

For e.g. Ambulance by Force Motors comes with two descriptions i.e. 8 Passengers + Driver + 1 Patient and 12 Passengers + Driver + 1 Patient.

Therefore, if the seating capacity of the ambulance is less than thirteen persons including the driver, then credit of the ambulance would be blocked under the provision of the law. However, if the seating capacity exceeds, then in such case Input Tax credit would be allowed.

Therefore, it has to be analysed on a case to case basis regarding allowability of input tax credit on ambulance post CGST Amendment Act, 2018. However, pre CGST Amendment Act, 2018 Input Tax credit on purchase of Ambulance is not allowed.

b) Conditions for Blocked Credit as prescribed under Section 17(5): Overrides Section 16(1): Provisions of Section 17(5) starts as follows:

“Notwithstanding anything contained in sub-section (1) of section 16 and subsection (1) of section 18, input tax credit shall not be available in respect of the following, namely:—”

As is pretty much evident from the wordings of the section that provisions of Section 17(5) overrides provisions of Section 16(1). Thus, any credit of Input Tax which is allowable as per the provisions of section 16(1) would have to satisfy conditions or restrictions as laid down under Section 17(5). One just cannot plainly contend that as conditions under section 16(1) have been fulfilled therefore he is entitled for credit of Input Tax.

Discussing principle laid down by Hon’ble Gujarat High Court in the matter of Gujarat Chamber of Commerce & Industry Vs Union of India, Judgement dated 17^th March 2017 although with regard to the taxes on fringe benefit, it was held that

“Under the circumstances with respect to any expenses incurred by the employer on, or by the payment made by the employer for the purposes mentioned in any of the provisions of Section 115WB(2)(A) to 115WB(2)(P), irrespective of the fact whether such services are relatable to the employees or not, the employer is liable to pay the FBT, as the aforesaid benefits are treated as Fringe Benefits deemed to have been provided by the employer to his employees. Any other interpretation and/or reading of sections 115W and 115WB shall be contrary to the provisions of the Statute and/or any other interpretation and/or reading, more particularly as sought to be canvassed on behalf of the respective assessees / employers would make sections 115WA and 115WB nugatory and/or otiose.”

Hon’ble Gujarat High Court in the above matter clearly upheld that once certain expenses have been incurred by the assessee for the purposes mentioned under Section 115WB, then irrespective of the fact that such expenses are relatable to the employees or not, fringe benefit would have been deemed to have been provided by the employer to his employees.

On a similar footing, even though supply of goods or services might have been used in the course or furtherance of business, but if it falls within the clutches of Section 17(5)(h), then in such case input tax credit would be blocked and would not be available to the taxpayer.

c) Eligibility of claiming input tax credit under section 16(1) is subject to the provisions of law at the time of occurrence of the taxable event, irrespective of when the claim is made:

Provisions of Section 16(1) provides for eligibility for taking input Tax Credit in respect of supply of goods or services made to the registered person. Section 16(2) provides that unless registered person fulfils conditions as prescribed under the law, he will not be entitled to take credit. Therefore, for being eligible to take credit, Provisions of Section 16(1) and 16(2) have to be fulfilled and time limit for satisfying the conditions provided under Section 16(1) and Section 16(2) in respect of an invoice have been provided in Section 16(4) of CGST Act, 2017.

Whether entitlement to take credit and taking credit are two different things:

The question now arises whether entitlement of credit and claim of credit are two different things since Section 16(2) provides that return under section 39 has to be filed for being entitled to claim the credit. It seems that entitlement and claim are two different things because for that matter a person may have filed the return for a particular month but could have forgotten to claim credit in that return which he had filed for that month. In such a case, he can take the credit till the time limit prescribed under Section 16(4) of CGST Act, 2017. Therefore, it might be possible that a person might be eligible to claim credit in the month of December 2018 as per provisions of Section 16(1) and 16(2) but he claims the credit in the month of January 2019.

Which provisions of the law would be applicable for a supply with regard to the availability or denial claim of Input Tax credit: Date of Supply, Date of entitlement and Date of Claim

Now supposedly, invoice for a particular supply of goods is received by a person in April 2018. All the Four conditions prescribed under Section 16(2) for the goods covered by the said supply are fulfilled in the month of June 2018. The claim for the input tax credit has been made in return filed for the month of July 2018. The issue now arises is which provisions would be relevant for arriving whether registered person is entitled to take credit in respect of a supply covered by an invoice or debit note:

Date of Supply: Invoice for the supply have been raised in the month of “April 2018”;
Date of Entitlement: Say barring goods being received, all three conditions were fulfilled but goods were received in June 2018, therefore all four conditions prescribed under Section 16(2) for goods covered by said supply were fulfilled in the month of “June 2018”;
Date of Claim: Claim for the credit is made by the recipient in the return filed for the month of “July 2018”.

AAR has held that eligibility of claiming input tax credit under section 16(1) is subject to the provisions of law at the time of occurrence of the taxable event i.e. supply being made, irrespective of when the claim is made. The conclusion also be gain strength from the fact that

Section 16(1) refers to registered person being “entitled to take credit of input tax charged on any supply of goods or services or both.
Section 16(2) also provides for satisfaction of conditions by registered person for being “entitled to the credit of any input tax in respect of any supply of goods or services or both to him”. These conditions are directly linked to supply i.e. invoice of supply, goods specified in supply being received, tax in respect of supply being paid and return for the said month being furnished under section 39.
Section 16(4) also links the last date to claim of credit by the registered person with the “invoice or debit note for supply of goods or services”.

All three provisions above have linked eligibility of input tax credit either with the supply or with the invoice for the supply i.e. taxable event. Therefore, it can be concluded that provisions as on date of supply i.e. date of raising of invoice would be relevant for claim of credit by recipient and not date of eligibility or date of claim.

However, alternatively one might argue that provisions prevailing in the law as on date of issue of invoice by supplier should not be relevant. What would be relevant would be the provisions prevailing as on the date of entitlement of credit because it is when such rights are vested with him to claim the credit and act of supplier cannot regulate the manner in which the rights relating to Input Tax Credit are vested in him. Supplier is well entitled under section 31 to raise the invoice well before the date of supply and goods or services covered by the invoice might be received well after that, therefore date of invoice by the supplier should not be the relevant date.

The issue is not free from ambiguity but only for now the matter has been decided by AAR that eligibility of claiming input tax credit under section 16(1) is subject to the provisions of law at the time of occurrence of the taxable event, irrespective of when the claim is made. Alternative views might exist and finality in this regard may be hard to achieve in the near future. Would like to add that both the interpretations in some cases might result in some illogical results but that’s how the provision has been framed and can’t be avoided.

d) When are the provisions of Section 17(5) applicable i.e. at the time of taxable event or anytime till the final use or consumption by the supplier:

We have earlier discussed on the issue of applicable date for the purpose of checking eligibility for claim of input tax credit in respect of an invoice or debit note under section 16 of CGST Act, 2017. Now question arises when is the applicability of provisions of Section 17(5) needs to be checked. Section 17(5) provides that even though a person might be entitled to take credit in respect of goods or services or both as per provisions of Section 16(1) but the credit would not be available in circumstances as provided thereunder.

Let’s try to decode the provision with the help of following scenarios:

Scenario 1-Goods purchased for the purpose of distribution as a Gift: M/S ABC Car is a person engaged in selling Car. M/S ABC Car received a Car in the month of April 2018. He gifted the car to one of its customers in April 2018. Input Tax Credit of the Car would be blocked by virtue of provisions of Section 17(5)(a) and 17(5)(h) of the CGST Act, 2017.

Scenario 2-Goods purchase initially for selling but subsequently distributed as a Gift: M/S ABC Car is a person engaged in selling Car. M/S ABC Car received a Car in the month of April 2018. He claimed credit of the Tax paid in the month of April 2018 itself as he intended to sell the Car at that time. However, later on Car was gifted to one of the customers in October 2018. He would have to reverse credit claimed on Car in the month of October 2018 by virtue of provisions of Section 17(5)(h).

Therefore, in the above two examples we can clearly observe that the following the provisions of Section 17(5), person would have to reverse the credit as and when the goods or services are put to use for the purposes specified in Section 17(5). Thus, provisions of Section 16(1) might be applicable initially at the time of availing credit but provisions of section 17(5) have to be fulfilled until the goods are supplied or finally used for purposes other than specified under Section 17(5).

Scenario 3-Goods purchased for purpose specified in Section 17(5) but subsequently used for other purposes: M/S ABC Car is a person engaged in selling Car. He purchases a Maruti Car for his business purposes in the month of April 2018 but did not intend to sell the car and capitalized the car in fixed assets. He did not avail credit of the same. However, subsequently in the month of November 2019, he sold the car converting it into stock in trade. Now initially as the car was not intended to be sold, claim of Input Tax Credit was blocked by virtue of provisions of Section 17(5)(a) of CGST Act, 2017. However, he sold the car after converting the same to stock in trade. Whether he would be entitled to claim the credit. There is no such provision in the law.

CGST Act, 2017 allows credit of input tax credit initially denied only in case of person withdrawing from the composition scheme or where an exempt supply of goods or services or both by a registered person becomes a taxable supply. But no similar provision is there in law wherein input tax credit on supplies was initially blocked as they attracted provisions of Section 17(5) however subsequently when such supplies are used for purposes other than the purposes specified in Section 17(5), such credit can be re-availed

Scenario 4-Goods purchased for purposes specified in erstwhile Section 17(5)(a) but subsequently used for purposes not covered under the Section 17(5)(a) amended vide CGST Amendment Act 2018: Ambulance when purchased was hit by the provisions of Section 17(5)(a) and credit was denied but subsequently by virtue of provisions of CGST Amendment Act, 2018, purpose for which Ambulance has been put to use was taken out of the purview of provisions of Section 17(5)(a) as it was used for transportation of persons and had seating capacity of more than thirteen persons including the driver. Therefore, subsequent to 1^st February 2019, ambulance was out of the purview of Section 17(5)(a) and since the ambulance was out of the purview of Section 17(5)(a), can credit be availed back again by the registered person.

The answer by using the principle laid down by AAR seems to be “No” i.e. eligibility of claiming input tax credit under section 16(1) is subject to the provisions of law at the time of occurrence of the taxable event, irrespective of when the claim is made. Therefore, since the applicable provisions at the time of purchase of ambulance denied the credit, therefore even though subsequent to 1^st February 2019, the said purpose Is eligible for credit

There are numerous other examples like a registered person is constructing an office for his business purpose but in midway after two years of construction and pending completion of construction, decides to sell the office and receives an advance against the said office. He completes construction of office and sells the office. Whether such person would be eligible to claim credit of the supplies received earlier before the receipt of advance, as they were hit by provisions of Section 17(5)(c) and 17(5)(d) earlier and subsequently moved out of the purview of the provisions of Section 17(5)(c) and 17(5)(d).

Let’s take another example, a registered person engaged in the business of selling of computers purchases a car and capitalizes the car in his Balance sheet as Fixed Asset. He sells the car after four years. Now since car has been used for making taxable supply and is out of the purview of 17(5)(a) whether credit can be availed in such case of the tax paid earlier.

The scenario is not pretty clear but the conclusion which comes out of above discussion and scheme of the things is as follows:

Credit once availed under Section 16 can be denied under Section 17(5) anytime until final use or disposal if inward supplies are used for purposes specified in Section 17(5).
Credit once denied on inward supplies under Section 17(5) whether initially or subsequently; cannot be re-availed anytime even if such inward supplied are used for purposes other than specified in Section 17(5) of CGST Act, 2017.

There is a dire need for clarification on the issue and unless addressed might result in lapsed credit and litigation. It seems that the revenue is enjoying the both sides of the coin i.e. credit under section 17(5) can be blocked anytime till the final use or consumption of the inwards supplies and once blocked such credit cannot be re-availed even though used for purposes other than the ones mentioned in Section 17(5) of CGST Act, 2017.

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#GSTCase-53-Blocked Input Tax Credit U/Sec 17(5) read with Section 16(1) of CGST Act, 2017: An issue to have wider ramifications in Future Nipha Exports (P.) Ltd. [2019] 102 taxmann.com 449 (AAR-WEST BENGAL)

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