{"id":123985,"date":"2009-07-09T00:00:00","date_gmt":"2009-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-vs-member-board-of-revenue-ors-on-9-july-2009"},"modified":"2017-02-19T03:05:28","modified_gmt":"2017-02-18T21:35:28","slug":"state-of-jharkhand-vs-member-board-of-revenue-ors-on-9-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-vs-member-board-of-revenue-ors-on-9-july-2009","title":{"rendered":"State Of Jharkhand vs Member Board Of Revenue & Ors. on 9 July, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
State Of Jharkhand vs Member Board Of Revenue & Ors. on 9 July, 2009<\/div>\n
                    W.P.( C ) No.6650 of 2006\n                                  With\n                    W.P.( C ) No.2415 of 2007\n                                  With\n                    W.P.( C ) No.2416 of 2007\n                                  With\n                    W.P.( C ) No.2417 of 2007\n                                  With\n                    W.P.( C ) No.2418 of 2007\n                                  With\n                    W.P.( C ) No.2419 of 2007\n                                  With\n                    W.P.( C ) No.2422 of 2007\n                                  With\n                    W.P.( C ) No.2423 of 2007\n                                 ------\n<\/pre>\n
         In the matter of an application under Article 226 of the
\n         Constitution of India.\n<\/p>\n
                                 ——\n<\/p>\n
         The State of Jharkhand.               …….Petitioner.\n<\/p>\n
                                                               (In all cases)\n<\/p>\n
                              -Versus-\n<\/p>\n
         Member Board of Revenue,
\n         Jharkhand, Ranchi & Anr.                        ……Respondents.\n<\/p>\n
                                                               (In all cases)\n<\/p>\n
                                  ——\n<\/p>\n
         For the Petitioner        :       Mr. L.K. Lal, S.C. (L&C).\n<\/p>\n
         For the Respondents       :       M\/s. Prabhat Kumar\n                                           Sinha and D. V. Pathy,\n                                           Advocates.\n                                  ------\n                                PRESENT\n               HON'BLE MR. JUSTICE NARENDRA NATH TIWARI\n                                  ------\nBy Court :     The common controversy, in this batch of the writ petitions,\n\n<\/pre>\n
         lies in different perception and interpretation of Clause 5 of the
\n         New Excise Policy issued by Excise Department, Government of
\n         Jharkhand, published in the official gazette dated 24th February,
\n         2004 (Annexure-1). All the writ petitions were tagged and heard
\n         together and are being disposed of by this judgment.\n<\/p>\n
         2.    The brief fact giving rise to the batch of the cases is that
\n         the State of Jharkhand issued an amended excise policy by
\n         gazette notification dated 24 th February, 2004 whereby a new
\n         excise policy for settlement of retail liquor shops was brought into
\n         effect from the financial year 2004-05. Prior to the said
\n         notification, excise retail shops were used to be settled
\n                             2    W.P.(C) No.6650\/2006, 2415\/2007,<\/span>
\n                                 2416\/2007, 2417\/2007, 2418\/2007,
\n                                 2419\/2007, 2422\/2007 & 2423\/2007<\/p>\n
individually for one year. But in the amended policy, excise retail
\nshops of country spirit and country spiced sprit are to be settled
\nin Group-I, whereas retail Indian Foreign Made Liquor shops are
\nto be settled in Group-II for a block period of three years. Clause
\n5 of the said notification provides 10% increase in the licence fee
\nin second and third year of the settlement.\n<\/p>\n
3.    In accordance with the said policy, sale notification was
\npublished inviting applications for settlement of retail liquor
\nshops. The shops were settled in the names of firms\/persons, who
\nare the private respondents in these writ petitions, on various
\ndates. They deposited licence fees.\n<\/p>\n
4.    The controversy between the parties is regarding date of
\nimplementation of Clause 5 i.e. the date of 10% increase in the
\nlicence fee in second and third year of settlement, as provided
\nin Clause 5 of the said notification, which reads as follows:\n<\/p>\n
              “5. BANDOVASTI TIN VARSH KI BLOK AWADHI KE LIYE KI
\n              JAYEGI. BANDOVASTI KE DUSRE EVAM TISRE VARSH ME
\n              PRATYEK BAR DAS PRATISHAT KI VRIDHI PRATIVARSH NILAMI
\n              RASHI ME KI JAYEGI.”\n<\/p><\/blockquote>\n
5.    According to the State, the increased licence fee is
\nchargeable with effect from the commencement of the
\nsucceeding financial year after the settlement, irrespective of
\nthe date of settlement. The respondents-settlees claimed that
\nsince the settlement was made after the commencement of the
\nfinancial year in the midst of the year or at the fag end of the
\nfinancial year. The increased licence fee is chargeable after
\nexpiry of 12 calendar months i.e. after a year from the date of
\nsettlement.\n<\/p>\n
6.    As per the term of agreement, any dispute arising
\nbetween the parties is to be referred to and decided by the
\nMember, Board of Revenue.\n<\/p>\n
7.    Accordingly, the said dispute was referred to the Member,
\nBoard of Revenue, Jharkhand. He heard the parties and
\nanswered the reference by the impugned order dated 17th July,
\n2006, contained in Annexure-2, in favour of the respondents-
\nsettlees. He held that ‘year’ as used in the notification and Form
\n                              3   W.P.(C) No.6650\/2006, 2415\/2007,<\/span>
\n                                 2416\/2007, 2417\/2007, 2418\/2007,
\n                                 2419\/2007, 2422\/2007 & 2423\/2007<\/p>\n
127 and the similar Forms specifying 10% enhancement in fees in
\nthe 2nd and 3rd year means year beginning after expiry of 12 and
\n24 British Calendar months from the date of initial settlement and
\nthe increased licence fee is chargeable after 12 and 24 months
\nof the date of settlement.\n<\/p>\n
8.    Aggrieved by the said interpretation and the order of the
\nMember, Board of Revenue, the State has filed these writ
\npetitions.\n<\/p>\n
9.    It has been contended on behalf of the State-petitioner
\nthat the Member Board of Revenue has erroneously interpreted
\nthe word ‘year’ according to the British Calendar, though in
\nClause 8 of the said notification, it has been clearly provided
\nthat the amended provision would be made effective from the
\nfinancial year 2004-05.\n<\/p>\n
10.   Mr. L. K. Lal, learned S.C. (L&C), appearing on behalf of
\nthe State-petitioner in all the cases, submitted that the
\ninterpretation of the word ‘year’ appearing in Clause 5 of the
\nsaid gazette notification is not only inconsistent with Clause 8
\nthereof, rather the same is also contrary to Rule 44 of the Bihar
\nExcise Rules. He submitted that Rule 44 provides that licences for
\nthe wholesale or retail vend of excisable articles may be granted
\nfor one year from the 1st April to the 31st March. Sub Rule (2) of
\nRule 44 makes it clear that if any licence be granted during the
\ncourse of the financial year, it shall be granted only up to the 31st
\nMarch, next following. According to him, the word ‘year’
\nappearing in the said notification has to be read in the light of
\nthe provisions of Rule 44 and the word ‘year’ appearing therein
\nmust be read as financial year. He further submitted that the
\ninterpretation made by the Member, Board of Revenue is
\nerroneous and has caused a loss of Rs.12 crores to the State
\nexchequer.\n<\/p>\n
11.   He further submitted that according to the definition in the
\nGeneral Clauses Act, Clause 8 of the said notification and Rule
\n44 of the Excise Rules are wholly erroneous and misconceived. In
\nview of the clear provision for enhancing licence fee from the
\n                             4     W.P.(C) No.6650\/2006, 2415\/2007,<\/span>
\n                                  2416\/2007, 2417\/2007, 2418\/2007,
\n                                  2419\/2007, 2422\/2007 & 2423\/2007<\/p>\n
second and third year, the settlees are liable to pay the
\nenhanced fee after the commencement of the financial year,
\nnext following to the year of the settlement, irrespective of the
\ndate of settlement in their favour in the preceding financial year.\n<\/p>\n
12.     The respondents-settlees, on the other hand, strongly
\nsupported the interpretation of the word ‘year’ and the order
\npassed by the learned Member, Board of Revenue. It has been
\nurged that the word ‘year’ has not been defined in the Excise
\nAct or Rules made therein and as such, learned Member Board
\nof Revenue has rightly relied on the definition of ‘year’ as
\nprovided in the General Clauses Act. Clause 5 of the said
\nnotification mentions the word ‘year’. The word ‘financial year’
\nis used only in Clause 8. Clause 8 provides that the notification
\nshall come into force with effect from the financial year 2004-05.
\nIt has no relevance for interpreting the meaning of the word
\n‘year’ mentioned in Clause 5 of the said notification. It has been
\nfurther submitted that if a word is not defined in the statute,
\nrecourse is to be taken to the definition provided in the General
\nClauses Act. The meaning of the word ‘year’, as provided in the
\nGeneral Clauses Act, is the British Calendar year of 12 months.\n<\/p>\n
13.     Learned counsel appearing on behalf of the respondents-
\nsettlees emphasized that nothing can be read and implied other
\nthan the language used in taxing statute. Clause 5 mentions the
\nword ‘year’. It cannot be read as ‘financial year’. Learned
\ncounsel submitted that wherever the use of word ‘financial year’
\nis intended, it has been clearly mentioned in the Rule and the
\nnotification. In the earlier notification, Clause 6 clearly provided
\nthat the settlement has to be made from the 1st April for a
\nmaximum period of one year and ending 31st March. In the said
\nclause, there was provision of deposit of licence fee of one year,
\nsubject to enhancement of 10% and 5% licence fee.\n<\/p>\n
14.     From the plain reading of the said clause, it is clear that
\nthe enhancement in the licence fee was intended on the
\ncommencement of the financial year i.e. 1st April of the following
\nyear.   The   said   provision   has   been       amended,           providing
\n                               5     W.P.(C) No.6650\/2006, 2415\/2007,<\/span>
\n                                    2416\/2007, 2417\/2007, 2418\/2007,
\n                                    2419\/2007, 2422\/2007 & 2423\/2007<\/p>\n
enhancement of licence fee by 10% in the second and third
\nyear of settlement.\n<\/p>\n
15.     The State Government now has come with a fresh sale
\nnotification for the settlement of liquor shops in the year 2008. In
\nthis notification, Clause 5 has been again amended and the
\nwords ‘1st April and financial year’ have been again specifically
\nused in place of the word ‘year’ in Clause 4. That amendment
\nconspicuously goes to show that the said notification is
\napplicable prospectively.\n<\/p>\n
16.     It has been submitted that the learned Member Board of
\nRevenue has taken pains to elaborately deal with the relevant
\nprovisions of law and has come to a right conclusion that the
\nword ‘year’ used in Clause 5 clearly means the year according
\nto the British Calendar.\n<\/p>\n
17.     Having heard learned counsel and on consideration of the
\nrelevant legal positions and the language used in the different
\nnotifications as also the interpretation and conclusion of the
\nlearned Member, Board of Revenue, I find substance in the
\nsubmissions made by learned counsel for the respondents-
\nsettlees.\n<\/p>\n
18.     It is well settled that a taxing statute is to be strictly
\nconstrued. In 7th Edition of G.P. Singh’s, Principles of Statutory
\nInterpretation, Chapter-10, Page-576, the well established rule
\ninterpreting taxing statute in the words of Lord Wensleydale
\nreaffirmed by Lord Halsbury and Lord Simonds has been quoted
\nthus:\n<\/p>\n
              “The subject is not to be taxed without clear words for that
\n              purpose; and also that every Act of Parliament must be
\n              read according to the natural construction of its words.”\n<\/p><\/blockquote>\n
19.     Learned author has also quoted Lord Cairns saying …….”If
\nthere be admissible in any statute, what is called an equitable,
\nconstruction, certainly, such a construction is not admissible in a
\ntaxing statue where you can simply adhere to the words of the
\nstatute.” At the same place, learned author refers Viscount
\nSimon, who quoted with approval, a passage from Rowlatt, J.\n<\/p>\n
                            6     W.P.(C) No.6650\/2006, 2415\/2007,<\/span><\/p>\n
                                 2416\/2007, 2417\/2007, 2418\/2007,
\n                                 2419\/2007, 2422\/2007 & 2423\/2007<\/p>\n
expressing the principle in the following words: “In a taxing Act
\none has to look merely at what is clearly said. There is no room
\nfor any intendment. There is no equity about a tax. There is no
\npresumption as to tax. Nothing is to be read in, nothing is to be
\nimplied. One can only look fairly at the language used.” He has
\nalso quoted the saying of Bhagwati, J.: “In construing fiscal
\nstatutes and in determining the liability of a subject to tax one
\nmust have regard to the strict letter of the law. If the revenue
\nsatisfies the court that the case false strictly within the provisions
\nof the law, the subject can be taxed. If, on the other hand, the
\ncase is not covered within the four corners of the provisions of
\nthe taxing statute, no tax can be imposed by inference or by
\nanalogy or by trying to probe into the intentions of the
\nLegislature and by considering what was the substance of the
\nmatter.” [Quoted from A. V. Fernandez Vs. State of Kerala, AIR
\n1957 SC 657, p.661]<\/p>\n
20.   Article 265 of the Constitution provides that no tax shall be
\nlevied or collected except by the authority of law. Article 366 of
\nthe Constitution defines Taxation and Tax reads as follows:\n<\/p>\n
             “Taxation includes the imposition of any tax or impost
\n             whether general or local or special and ‘tax’ shall be
\n             construed accordingly.\n<\/p><\/blockquote>\n
21.   In view of the above, any compulsory exaction of money
\nby Government amounts to imposition of tax which is not
\npermissible except by or under the authority of a statutory
\nprovision. Reference can be made to the decision of the
\nSupreme Court in the case of CCE Vs. Kisan Sahkari Chinni Mills
\n[AIR 2001 SC 3379].\n<\/p>\n
22.   Though there is distinction between tax and fee, which are
\nboth imposition made by the State for raising revenue. A tax is
\nimposed for public purpose for raising general revenue of the
\nState. A fee in contrast is imposed for rendering services and
\nbears a broad co-relationship with the services rendered, but a
\ncompulsory imposition of fee also comes within the fold of tax.\n<\/p>\n
                             7    W.P.(C) No.6650\/2006, 2415\/2007,<\/span><\/p>\n
                                 2416\/2007, 2417\/2007, 2418\/2007,
\n                                 2419\/2007, 2422\/2007 & 2423\/2007<\/p>\n
23.   Again the position is different where a duty or fee is
\ncharged by the State for parting with its privilege of dealing in
\ndeleterious commodities such as liquor.\n<\/p>\n
24.   Though every fee must not satisfy the test of quid pro quo
\nfor a licence fee may be regulatory in nature where no quid pro
\nneed be established [State of Tripura Vs. Sudhir Ranjan Nath, AIR
\n1997 SC 1168, p.1173]. But such regulatory fee also cannot be
\nexcessive. Reference may be made to the decisions of the
\nSupreme Court in A.P. Paper Mills Ltd. Vs. Government of A.P., AIR
\n2000 SC 3290; and State of U.P. Vs. Vam Organis Chemical Ltd.,
\n(2004)1 SCC 295.\n<\/p>\n
25.   In    Calcutta   Municipal    Corporation         Vs.    M\/s.   Shrey
\nMerchantile Pvt. Ltd., A.I.R. 2005 SC 1879, the Supreme Court has
\nclearly held that so-called regulatory fee, which has no
\nconnection with the case of regulation, is really a tax in the garb
\nof a fee.\n<\/p>\n
26.   Learned Member Board of Revenue has broadly taken
\nnote of the fact that some of the licences which were granted in
\nthe month of December, 2004 and has occasion to deal with the
\nliquor sale only for about four months and other licensees who
\nenjoyed that privilege for 8-9 months in the first year of
\nsettlement, exacting the increased licence fee, in both cases
\nwith effect from 1st April, 2005 is certainly discriminatory and
\narbitrary and against the principle of law.\n<\/p>\n
27.   In my view, a compulsory enhancement in the licence fee
\nwithout taking into consideration the delay in granting licence to
\nthe respondents in the previous year is against the principle of
\nimposition of regulatory fee even in the case of liquor and is
\narbitrary and unreasonable. The same violates the mandate of
\nArticle 14 of the Constitution of India.\n<\/p>\n
28.   Learned Member Board of Revenue has also rightly held
\nthat the word ‘year’ as used in the notification and Form 127 and
\nother similar forms specifying 10% enhancement in fees in the
\nsecond and third year means a ‘year’ reckoned according to
\n                                         8    W.P.(C) No.6650\/2006, 2415\/2007,<\/span>
\n                                             2416\/2007, 2417\/2007, 2418\/2007,
\n                                             2419\/2007, 2422\/2007 & 2423\/2007<\/p>\n
             the British Calendar and 10% increase in licence fee in the
\n             second and third year should be made after expiry of 12 and 24
\n             calendar months from the date of its settlement. The finding of
\n             the learned Member Board of Revenue fits with the established
\n             interpretative process of statutory provision. It is well established
\n             that when the language of the statutory provision is plain and
\n             clear, full effect must be given to them and there is no need of
\n             any interpretation to give a different meaning. Reference may
\n             be made to the decisions of the Supreme Court in Mangalore
\n             Chemicals & Fertilizers Vs. Dy. Commissioner of Commercial
\n             Taxes [AIR 1992 SC 152], Punjab Land Development and
\n             Reclamation Corporation Ltd. Vs. Presiding Officer [(1990)3 SCC
\n             682], Maharastra State Financial Corporation Vs. Jaycee Drug &
\n             Pharmaceuticals (P) Ltd. [(1991)2 SCC 637 (651)] and HH Sri
\n             Rama Verma Vs. CIT [1991 Supp (1) SCC 209], which have been
\n             also referred to and relied upon by learned Member Board of
\n             Revenue.\n<\/p>\n
             29.    In view of the aforesaid discussion, I find no infirmity,
\n             illegality or arbitrariness in the impugned order of learned
\n             Member, Board of Revenue. The said order is upheld.\n<\/p>\n
             30.    It is further held that the respondents are entitled to
\n             proportionate remission of licence fee paid in excess. The State-
\n             petitioner is liable to comply with the term of the order passed by
\n             learned Member, Board of Revenue.\n<\/p>\n
             31.    Accordingly, these writ petitions are dismissed.\n<\/p>\n
             32.    However, there is no order as to costs.\n<\/p>\n
                                       (Narendra Nath Tiwari, J.)<\/p>\n
JHARKHAND HIGH COURT
\nDated, Ranchi, 9th July, 2009
\nSanjay\/AFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court State Of Jharkhand vs Member Board Of Revenue & Ors. on 9 July, 2009 W.P.( C ) No.6650 of 2006 With W.P.( C ) No.2415 of 2007 With W.P.( C ) No.2416 of 2007 With W.P.( C ) No.2417 of 2007 With W.P.( C ) No.2418 of 2007 With W.P.( C ) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-123985","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nState Of Jharkhand vs Member Board Of Revenue & Ors. on 9 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-vs-member-board-of-revenue-ors-on-9-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Jharkhand vs Member Board Of Revenue & Ors. on 9 July, 2009 - 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