{"id":157422,"date":"2008-09-23T00:00:00","date_gmt":"2008-09-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/roshanlal-vs-deputy-on-23-september-2008"},"modified":"2016-06-17T03:11:44","modified_gmt":"2016-06-16T21:41:44","slug":"roshanlal-vs-deputy-on-23-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/roshanlal-vs-deputy-on-23-september-2008","title":{"rendered":"Roshanlal vs Deputy on 23 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Roshanlal vs Deputy on 23 September, 2008<\/div>\n
Author: D.A.Mehta,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/8976\/1995\t 37\/ 37\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8976 of 1995\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE D.A.MEHTA   Sd\/-\n \n\n \nHONOURABLE\nMR.JUSTICE BANKIM.N.MEHTA\nSd\/- \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?  \n\t\t\tYES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?  YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?  NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?  NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?  NO\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nROSHANLAL\nS JAIN & OTHERS (A O P) - Petitioner(s)\n \n\nVersus\n \n\nDEPUTY\nCOMMISSIONER OF INCOME-TAX (ASSESSMENT) & 1 - Respondent(s)\n \n\n=========================================================\nAppearance : \nMR\nJP SHAH for Petitioner(s) : 1, \nNOTICE SERVED\nBY DS for Respondent(s) : 1, \nMR MANISH R BHATT for Respondent(s) :\n1, \nSERVED BY RPAD - (R) for Respondent(s) : 2, \nMR KETAN A DAVE\nfor Respondent(s) :\n2, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.A.MEHTA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE BANKIM.N.MEHTA\n\t\t\n\t\n\n \n\nDate\n: 23\/09\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE D.A.MEHTA)<\/p>\n
 SYNOPSIS.\n<\/p>\n
Sr.No.\n<\/p>\n
CONTENTS<\/p>\n
Paragraph No. 1 to 26<\/span><\/p>\n
01<\/span><\/p>\n
FACTS<\/p>\n
1 – 3<\/p>\n
02<\/span><\/p>\n
CONTENTIONS :\n<\/p>\n
(a) Petitioner<\/p>\n
(b) Respondent<\/p>\n
4 ?  7.4<\/p>\n
8 –  8.4<\/p>\n
03<\/span><\/p>\n
REASONING<\/p>\n
9 – 25<\/p>\n
04<\/span><\/p>\n
CONCLUSION<\/p>\n
26<\/span><\/p>\n
1.\tThe
\npetitioner, an Association of persons, has preferred this petition
\nchallenging :[i] the calculation of interest and the notice of demand
\nfor the three Assessment Years under consideration as bad in law  to
\nthe extent there is an overcharging of interest; [ii] Section 234A of
\nthe Income Tax Act,1961 (the Act) is ultravires to the extent the
\nsaid section provides for charging of interest evenafter the payment
\nof tax; [iii] Sections 234A and 234B of the Act of the Act are
\nultravires to the extent both the provisions  charge interest for the
\nsame period making the petitioner liable to interest @ 48%.\n<\/p>\n
2.\tAssessment
\nYears in question are  1991-92, 1992-93 and 1993-94, the respective
\naccounting periods being financial years ended on 31.3.1991,
\n31.3.1992 and 31.3.1993 respectively. Respondent No.1 (hereinafter
\nreferred to as ‘the respondent authority’) is the Assessing Officer
\nhaving jurisdiction over the petitioner assessee. Assessment orders
\nfor the three years in question were  passed by the Assessing Officer
\nand while  calculating total amount payable by the petitioner
\nassessee interest under sections 234A, 234B and 234C of the Act was
\ncharged by the respondent authority. Pursuant to  assessments framed
\non 14.3.1995 for the three years under consideration notices of
\ndemand at  Exhibits E1, E2, and E3 were issued on 28.3.1985. It is
\nthese notices of demand  which are under challenge on merits apart
\nfrom the challenge to constitutional validity of provisions of
\nsections 234A and 234B of the Act.\n<\/p>\n
3.\tThe
\nprayers made in the petition read as under:\n<\/p>\n
?S12.In
\nthe premises aforesaid, the petitioner prays that :\n<\/p>\n
this
\n\tHon’ble Court be pleased to call for the records of the proceedings,
\n\tlook into them and issue a writ of certiorari or any other
\n\tappropriate writ, order or direction quashing the demand notices at
\n\tExhibits E1, E2 and E3.\n<\/p>\n
this
\n\tHon’ble Court be pleased to issue a writ of mandamus or any other
\n\tappropriate writ, order or direction, directing  the respondent not
\n\tto collect the interest as charged in the above demand notices;\n<\/p>\n
this
\n\tHon’ble Court be pleased to declare that section 234A is ultra vires
\n\tto the extent  it provides for charging of interest  even after the
\n\tpayment of taxes and that  both sections 234A and 234B are ultra
\n\tvires to the extent both of them charge interest for the same period
\n\tmaking the assessee liable  to 48% rate of interest for that period;\n<\/p>\n
this
\n\tHon’ble Court be pleased to instruct the department to adjust
\n\tpayments made before filing the return first against  Income Tax
\n\tpayable and not against the interest as has been done by the
\n\tdepartment while calculating  the interest payable under section
\n\t234B of the Act.\n<\/p>\n
that
\n\t pending  the hearing and final disposal of this application
\n\tthis Hon’ble Court be pleased to ask Respondent No.1 to maintain
\n\tstatus quo in the matter of recovery of interest calculated and
\n\tdemanded in the demand notices at Exhibits E1, E2 & E3;\n<\/p>\n
that
\n\tthis Hon’ble Court be pleased to grant any further or other relief
\n\tas this Hon’ble Court deems just and proper in the circumstances of
\n\tthe case;\n<\/p>\n
that
\n\tthis Hon’ble Court be pleased to allow this petition with costs
\n\tagainst the Respondent.??\n<\/p>\n
4.\tThe
\nlearned Counsel for the petitioner has submitted that the calculation
\nof interest and notices of demand are bad in law to the extent there
\nis overcharging of interest in each of the years under consideration
\nwhich is to the extent of following amounts :\n<\/p>\n
\t?SA.Y.\n<\/p>\n
 1991-92\t5,93,316\/-\n<\/p>\n
A.Y.\n<\/p>\n
1992-93      75,582\/-\n \n\n     \nA.Y. \n1993-94   16,04,423\/-\n \n\n      \n               -----------\n \n\n      \n      Total\n   22,73,321\/-\n \n\n      \n               -----------\n   ?S\n \n\n \n\n\n \n\n\tIn\n<\/pre>\n
regard to the challenge raised, the petitioner has summarised
\ndifference of opinion between the petitioner and the respondent in
\nthe following words :\n<\/p>\n
?S(i)\t Regarding interest
\nu\/s 234A, according to   the petitioner  interest  can be
\ncharged on tax payable from the due date of filing  of the return of
\nincome to the date of payment of tax but according to  the
\ndepartment the interest is payable not upto the date of paying
\noff of the tax but even thereafter till the date of filing of the
\nreturn of income.\n<\/p>\n
(ii)\t In respect of charging
\nof interest u\/s 234B, the department has charged the interest on
\ninterest whereas  the petitioner  contends to the contrary.\n<\/p>\n
(iii)According to  the
\ndepartment for some part of common period 48% interest is payable
\nunder the Act which means interest becomes chargeable for some  part
\nof the  period both  u\/s 234A and u\/s 234B whereas according  to  the
\npetitioner,  the interest is not to be charged for any part of
\nthe period under both these sections simultaneously, which means no
\npart of the dues will suffer more than 24% of interest??.\n<\/p>\n
5.
\n In relation to the challenge to constitutional validity of the two
\nsections the submission, in the alternative, is that in the event the
\ninterpretation placed by the petitioner  on the provisions of
\nSections 234A and 234B of the Act is not accepted, then the provision
\nof section 234A of the Act to the extent the interest runs evenafter
\npayment of tax falls foul of Article 14 of the Constitution of India
\nas being irrational, arbitrary and the provision  cannot be justified
\nfor any imaginable reasons. Similarly in relation to section  234B of
\nthe Act it was submitted by the learned Counsel, again in the
\nalternative, that where the interest is payable under  both the
\nprovisions viz. sections 234A and 234B of the Act there would be
\ndouble charging of interest and hence  section 234B of the Act should
\nbe read down  to save  the provision from the very same  charge  of
\nirrationality and unconstitutionality, or either both the provisions
\nor any one of them  be declared as ultavires the Constitution to the
\nextent  the provisions  impose liability of paying interest  over
\nagain for the same period  amounting to interest  being charged at
\nthe rate of 48%.\n<\/p>\n
6.\tThe
\ncontentions raised on behalf of the petitioner can be broadly divided
\ninto  two categories  : the first being on the interpretation of
\nprovisions  and the second being on the basis of validity of the
\nprovisions.\n<\/p>\n
7.\tIn
\nrelation to the first contention the learned Advocate placed great
\nemphasis on Delhi High Court judgment in the case of
\nDr. Prannoy Roy and Anr. Vs. CIT (2002) 254 ITR 755 to
\ncontend that interest under section 234A would be payable only in a
\ncase where  tax had not been deposited prior to the due date of the
\nfiling of the return. It was submitted that  the said decision dealt
\nwith all the issues relating to operation of  section 234A of the Act
\nand was a complete answer to the stand of the department.  That the
\nCourt should therefore hold that in sofaras interest charged u\/s.
\n234A of the Act is concerned, once it is found that prior to the date
\nof filing of return of income the entire tax  had been paid no
\ninterest could be charged. It was submitted that as held by the
\nfollowing two decisions of the Apex Court and the decision of
\nKarnataka  High Court payment of interest was  compensatory in nature
\nand therefore also no interest should be levied and collected in
\nrelation to the amount which had already paid to the Revenue.\n<\/p>\n
(1986)160
\nITR 961 ?  Central Provinces Manganese Ore. Co. Ltd. Vs. CIT,\n<\/p>\n
– with special reference to observations at page No.966 of the
\nreport.\n<\/p>\n
(1988)169
\nITR 221 ?  Ganesh Dass Sreeram Vs. Income Tax Officer,-with
\nspecial emphasis as to observations at page No.230 of the report.\n<\/p>\n
(1998)232
\nITR 62 ?  Dr.S.Reddappa And Ors. Vs. Union of India and ors,- with
\nspecial reference to observations at page No. 71 of the report.\n<\/p>\n
7.1\tIt
\nwas further submitted that once  one High Court had interpreted a
\nprovision the said judgment must normally be  followed by other High
\nCourts considering that Income Tax Act is an All India Statute. For
\nthis purpose reliance was placed on a decision of this Court in case
\nof  CIT Vs. Deepak Family Trust, (1995) 211 ITR 575, wherein
\nearlier decisions of Bombay High Court were referred to. Emphasis was
\nlaid on the case of Maneklal Chunilal (1953) 24 ITR 375 (Bom.)
\nto contend that so far   this principle was consistently  followed by
\nthis High Court holding that it would be a wise judicial policy and
\npractice not to take a different view even if the High Court is of
\nthe opinion that a different view of the matter should be taken.\n<\/p>\n
7.2\tIn
\nsupport of the submissions made as to why provisions of sections 234A
\nand 234B of the Act should be read  as contended by the petitioner
\nfollowing decisions were cited to emphasise the principles of
\ninterpretation laid down by the Apex Court.\n<\/p>\n
[i]\t(1971)82
\nITR 570  <\/p>\n
\tR.B.Jodha
\nMal Kuthiala Vs. CIT.\n<\/p>\n
[ii]\t(1981)131
\nITR  597<\/p>\n
\tK.P.\n<\/p>\n
Varghese Vs. Income Tax Officer.\n<\/p>\n
[iii](1965)
\n57 ITR 176<\/p>\n
 \tCIT
\n Vs. Gangadhar  Banerjee And \t\t\t\tCo.(Pvt.)Ltd.\n<\/p>\n
[iv]\t(1985)156
\nITR 323<\/p>\n
CIT  Vs. J.H.Gotia.\n<\/p>\n
[v]\t(1996)220
\nITR 50<\/p>\n
Commissioner of Gift Tax Vs.<\/p>\n
Smt. C.D.R.Laxmidevi.\n<\/p>\n
\tThe
\npropositions canvassed on basis of the aforesaid decisions were that
\nwhile interpreting a taxing statute  the provision has to be
\ninterpreted reasonably and in consonance with justice even though  it
\nmay be true that equitable considerations are irrelevant in
\ninterpreting tax laws. That where required, the Court must construe
\nthe statutory provisions so as to avoid  absurdity and mischief;
\nwhere the plain literal interpretation of a statutory provision
\nproduces a manifestly unjust result which  could never have been
\nintended by the Legislature, the Court is entitled to modify the
\nlanguage used by the Legislature or even do some violence so as to
\nachieve  the intention of the Legislature and produce a  rational
\nconstruction. That attempt should be made  to ensure that equity and
\ntaxation do not always remain strangers and construction which
\nresults in equity rather than  injustice, should be preferred to the
\nliteral construction. That Court would not adopt such an
\ninterpretation which would expose the statute to the vice of being
\nultravires the Constitution.\n<\/p>\n
7.3\tAs
\nregards the contention based on challenge to constitutional validity
\nof the provisions attention was invited to the following decisions :\n<\/p>\n
[1]\tAIR
\n1974 SC 555\t<\/p>\n
\tE.P.Royappa
\nVs. State of Tamil Nadu – with \tspecial \treference to paragraph Nos.
\n85 and 86 \tof the \tjudgment.\n<\/p>\n
[2]\tAIR
\n1978 SC 597<\/p>\n
\tP.K.\n<\/p>\n
Varghese Vs. Income Tax Officer ?  with
\n\tspecial reference to paragraph No.56 of the \tjudgment.\n<\/p>\n
[3]\t1995(1)
\nSCC 519<\/p>\n
\tState
\nof T.N. & Ors Vs. Ananthiammal & Ors. with \tspecial reference
\nto paragraph No.7 of the \tjudgment.\n<\/p>\n
[4]\t2007(6)
\nSCC 668<\/p>\n
\tBidhannagar
\n(Saltlake) Welfare Assn. Vs. Central \tValuation Board & Ors. with
\nspecial reference to \tparagraph No.37 and other paragraphs dealing
\n\twith  interpretation of statutes.\n<\/p>\n
\tIt
\nwas submitted, based on these decisions that even in taxing statutes
\nreasonableness of the provision has to be considered in context of
\nrights of a person vis-a-vis other similarly situated  persons and if
\nthe provision is found to be arbitrary and\/or irrational  the same
\nshould be either read down or should be held to be ultravires the
\nConstitution. That in the instant case insofar as section 234A of the
\nAct is concerned the same be held to be ultravires the Constitution
\nto the extent the provision requires an assessee to pay interest even
\nafter the tax has been paid before filing of the return. Similarly in
\nrelation to  section 234B of the Act, it was submitted that when the
\nsaid provision, as read by respondent authority, charges interest for
\nthe same period for which interest had already been charged u\/s. 234A
\nof the Act, the said provision was unreasonable and had to be struck
\ndown. Alternatively, the provision be read down so as to ensure that
\nan assessee is not called upon to pay double interest for the same
\nperiod.\n<\/p>\n
7.4\tIt
\nwas therefore urged that  the interest charged under the two
\nprovisions to the extent there was overcharging in each year be held
\nto be bad in law and\/or ultravires the Constitution.\n<\/p>\n
7.5\tAn
\nincidental contention was also raised based on provisions of sections
\n 59 to 61 of the Indian Contract Act, 1872 to submit that  the
\nrespondent authority had erred in law in not treating the amount  of
\ntax paid as tax and appropriating the same towards interest and thus
\ncharging interest on an amount which in fact had already been paid as
\ntax. For this purpose attention was invited to certain challans  of
\npayment to point out that the said challans specifically denoted
\nthat the amount paid under the said challans was towards tax and not
\ninterest. That in fact both the respondent authority and the assessee
\nhad understood the said aspect of the matter in same sense as could
\nbe seen from the final part of the respective assessment orders where
\nthe  respondent authority had directed to give credit for prepaid
\ntaxes but it was only while calculating interest that such credit was
\ndenied. That the said practice adopted by  the assessee was in
\nconsonance with provisions of section 139(9) of the Act and the
\nExplanation thereunder which required an assessee to attach proof of
\npayment of taxes before filing return of income as otherwise the
\nreturn of income would be treated as a defective return.\n<\/p>\n
8.\tOn
\nbehalf of the respondent authority  learned Senior Standing Counsel
\nsubmitted that the petitioner could not be given credit for the tax
\npaid after the end of the Financial Year but before the date of
\nfiling  of the return  considering the statutory scheme commencing
\nfrom section 207 of the Act relating to advance tax. For this
\npurpose, reliance was placed on decision of this Court in the case of
\n  Life Bond Fabric Pvt. Ltd. Vs. CIT, (1995)216 ITR
\n529 to contend that  the interest which was leviable had
\nto be calculated in terms of the  statutory scheme of the Act and
\nthere was no discretion vested in the Assessing Authority, as well as
\nApex Court decision in  case of CIT  vs. Hindustan
\nBulk Carriers (2003) 259 ITR 449 with special reference to
\nobservation at page No.458 of the report.\n<\/p>\n
8.1\tResponding
\nto the contention raised on behalf of the petitioner based on
\nconsistent practice to follow a judgment of another High Court even
\nin case where the Court was otherwise not agreeable with the view
\nexpressed it was submitted that in fact, this High Court had already
\nexplained the circumstances in which a different view could be
\nadopted as laid down in the case of N.R.Paper And
\nBoard Limited and Ors. Vs. Deputy Commissioner of Income Tax, (1998)
\n234 ITR 733.\n<\/p>\n
8.2\tAs
\nregards the challenge to constitutional validity of the provisions
\nattention was invited to the decision of  Karnataka High Court in the
\ncase of Dr.S.Reddappa and Ors. Vs. Union of India and
\nOrs.(supra) with special reference to observations  at
\npage Nos. 70 and 71, as well as judgment of Bombay High Court in the
\ncase of Umesh S. Bangera Vs. Union of India &
\nOrs.(2004) 268 ITR 405 with special reference to
\nobservations at page Nos. 409, 410 and 411. It was submitted that the
\nprovisions of sections 234A and 234B of the Act being compensatory in
\nnature for breach of  civil obligation cannot be termed to be
\nunreasonable as the provisions accord uniform treatment to similarly
\nsituated persons and have eliminated the subjective  discretion of
\nthe Taxing Authority and thus obviated arbitrariness. That the
\nsafeguard provided  in the statute itself   cannot be termed to be
\npenal in nature and thereby unconstitutional.\n<\/p>\n
8.3\tResponding
\nto the contention that interest was being charged for the same period
\nover again, the learned Counsel pointed out that  both the defaults
\nu\/Ss. 234A and 234B of the Act are in respect of separate civil
\nobligations and therefore cannot be held to be either  bad in law or
\nunconstitutional.\n<\/p>\n
8.4\tLastly,
\nit was contended that in absence of any contract between the
\npetitioner and the respondent authority, the provisions of Indian
\nContract Act cannot be pressed into service by the petitioner and
\neven otherwise as held by the Apex Court in the case of
\nI.C.D.S. Ltd. Vs. Smithaben H.Patel  & Ors. AIR 1999 SC 1036,
\nthe provisions can apply only in a case where there are different
\ndebts whereas in the present case  there are no different debts.\n<\/p>\n
9.
\nFor the purpose of appreciating the contentions raised it is
\nnecessary to consider the provisions of sections 234A and 234B of the
\nAct. The relevant extracts relatable to  the Assessment Years in
\nquestion read as under:\n<\/p>\n
?SInterest for defaults in
\nfurnishing return of income.\n<\/p>\n
234A.(1) Where the return of
\nincome for any assessment year under sub-section (1) or sub-section
\n(4)  of section 139, or in response to a notice under sub-section (1)
\nof section 142, is furnished after  the due date, or is not
\nfurnished,  the assessee shall be liable  to pay simple interest  at
\nthe rte of two percent for every month or part of a month comprised
\nin the period commencing on the date immediately following the  due
\ndate, and,-\n<\/p>\n
(a) where the return is
\nfurnished after the due date,  ending on the date of furnishing of
\nthe return; or<\/p>\n
(b) where no return has been
\nfurnished, ending on the date of completion of the assessment under
\nsection 144,<\/p>\n
on the amount of [the tax on
\nthe total income as determined under sub-section (1) of section 143
\nor on regular assessment  as reduced by the advance tax, if any, paid
\nan any tax deducted or collected at source]??\n<\/p>\n
          xxx          xxx    \n     xxx\n \n\n\n?SInterest for defaults in\npayment of advance tax.\n \n\n\n234B.(1) Subject to the other\n<\/pre>\n
provisions of this section, where, in any financial year, an assessee
\nwho is liable to pay advance tax under section 208 has failed to pay
\nsuch tax or, where the advance tax paid by such assessee under the
\nprovisions of section 210  is less than ninety per cent of the
\nassessed  tax, the assessee shall be liable to pay simple interest
\nat the rate of two per cent for every month or part of a month
\ncomprised in  the period  from the 1st day  of April next
\nfollowing such financial year [to the date of determination of total
\nincome under sub-section (1) of section 143 or regular assessment],
\non an amount equal to the assessed tax or, as the case may be, on the
\namount by which the advance tax paid as aforesaid falls short of the
\nassessed tax]??.\n<\/p>\n
10.\tOn
\na plain reading of the aforesaid two provisions, it is apparent that
\nsection 234A of the Act is in relation to liability to pay interest
\nfor default in late furnishing of return or non furnishing of return,
\nwhile section 234B of the Act pertains to liability to pay interest
\nfor default in payment of advance tax. However, in both the
\nprovisions interest is payable on the amount which is the difference
\nbetween the amount of tax payable on the total income as determined
\nu\/s. 143(1) of the Act or on regular assessment as reduced by the
\nadvance tax paid, deducted at source, or collected at source.\n<\/p>\n
11.\tTherefore,
\none has to consider what is the meaning of advance tax, tax deducted
\nat source and tax collected at source. The definition of the term
\n‘advance tax’ appears in section 2(1) to mean  advance tax
\npayable in accordance with provisions of Chapter XVIIC. Before
\nadverting to Chapter XVIIC of the Act, a look at section 4 of the Act
\nwould be helpful. The said provision deals with Charge of income tax
\nand provides that income tax shall be charged for any Assessment Year
\nat the prescribed rates in accordance with and subject to the
\nprovisions of the Act in respect of the total income of the previous
\nyear of every person. Sub-section (2) of Section 4 of the Act lays
\ndown that in respect of income  chargeable under sub-section (1)
\nincome tax shall be deducted at source or paid in advance, where it
\nis so deductible or payable under any provision of the Act.
\nTherefore, the scheme that emerges  is that income tax is chargeable
\nfor any Assessment year in relation to total income of the previous
\nyear and such income tax is payable by the mode of deduction  at
\nsource or by the mode of payment in advance as prescribed. Previous
\nyear in relation to any Assessment Year has been defined under
\nsub-section (2) of section 3 to mean the period which  begins with
\nthe date immediately following the last day  of the previous year
\nrelevant to the Assessment Year commencing on 1st April
\nand ending on 31st March.\n<\/p>\n
12.\tChapter
\nXVII relates to COLLECTION AND RECOVERY OF TAX. Under part ‘A’
\nsection 190 of the Act provides for Deduction at source and advance
\npayment. Under sub-section (1) of section 190 of the Act, it is
\nprovided that notwithstanding that the regular assessment  in respect
\nof any income is to be made in a later assessment  year, the tax on
\nsuch income shall be payable by deduction  or collection at source or
\nby advance payment, as the case may be,  in accordance with the
\nprovisions of Chapter XVII. Thus section 190 of the Act provides  for
\nthe situation  where even if the regular assessment is framed
\nsubsequently,  viz. in later Assessment Year,  even then  in respect
\nof any income for which  such regular assessment  is to be made the
\ntax shall be payable either by deduction or collection at source or
\nby advance payment  in the mode and manner prescribed by the
\nprovisions of Chapter XVII of the Act.\n<\/p>\n
13.\tPart
\n‘C’ of Chapter XVII deals with Advance payment  of tax  and under
\nsection 207 of the Act the Liability for payment  of advance tax  is
\nprescribed. The said provision stipulates that tax shall be payable
\nin advance during any Financial Year  in accordance with provisions
\nof sections 208 to 219 in respect of total income of the assessee
\nwhich would be chargeable to tax for the Assessment Year  immediately
\nfollowing that Financial Year. Thus on a conjoint reading of section
\n4, section 2(1), section 190 and section 207 of the Act the scheme
\nthat emerges is that eventhough assessment of the total income may be
\nmade  later in point of time the liability to pay income tax is
\nrelatable to the Financial Year immediately preceding the Assessment
\nYear in question and such liability has to be discharged  either by
\nway of having tax deducted at source or collected at source, or
\nmaking payment by way of advance tax in accordance with the
\nprovisions of sections 208 to 219 of the Act.\n<\/p>\n
14.\tSection
\n208 of the Act stipulates that advance tax shall be payable during a
\nFinancial Year in every case where the amount of such tax payable by
\nthe assessee during that Financial Year, as computed in accordance
\nwith the provisions of Chapter XVII of the Act, is one thousand five
\nhundred rupees or more (at the relevant point of time). It is not the
\ncase of the petitioner-assessee that the tax payable during any of
\nthe three years in question was  less than one thousand five hundred
\nrupees. Therefore, statutorily liability was cast on the petitioner
\nassessee to pay advance tax  during the Financial Year as provided by
\nthe legislative scheme considered hereinbefore. In the circumstances,
\nit is not necessary to deal with the mode and manner by which advance
\ntax is to be computed or the point of time when the payment is to be
\nmade. However, section 211 of the Act lays down the limit with the
\ncorresponding date on which an instalment of advance tax is due and
\nthe amount which is to be paid as advance tax. Even on this count,
\nthe petitioner-assessee  has not stated that any payment as such had
\nbeen made. In fact in the petition itself there is an indication that
\ninterest levied u\/s. 234C of the Act by the respondent authority is
\nnot disputed by the petitioner as averred in paragraph No.2 of the
\npetition. Section 234C of the Act relates to liability to pay
\ninterest for deferment of advance tax, viz. where there is short fall
\nin payment of advance tax considering the prescribed percentage which
\nis payable on each of the  due dates commencing from 15th
\nSeptember and ending on 15th March of every Financial
\nYear.\n<\/p>\n
15.\tIt
\nis in the backdrop  of the aforesaid legal position  and the facts
\nwhich have come on record that the contentions raised by the
\npetitioner have to be examined. The petitioner does not dispute  that
\nthere is default in payment of advance tax. In other words there is a
\nshort fall of advance tax  by the  stipulated percentage as
\nprescribed by section  234B of the Act.  The petitioner also does not
\ndispute that there is a short fall in payment of advance tax  on the
\ndue dates  prescribed u\/s. 211 of the Act. Admittedly, payments of
\ntax on which the petitioner is resting his case are the payments made
\nbeyond the Financial Year. The payments so made are therefore
\ncontrary to the legislative scheme. In the circumstances, the
\nquestion that will have to be posed  and answered is whether an
\nassessee who has acted contrary to the legislative scheme can seek
\nequity.\n<\/p>\n
16.\tIn
\nthis context the illustrations given by the learned Advocate for the
\npetitioner during course of hearing may not be apposite to the issue
\nat hand.  Admittedly, Central Board of Direct Taxes has issued
\ncirculars whereby an assessee who is prevented by circumstances
\nbeyond his control can seek full or partial waiver of interest levied
\nunder any of the provisions. (Reference[1997]225 ITR(St.)101 as
\nmodified on 30.1.1997). Therefore, interpretation of the provisions
\ncannot be based on such hypothetical instances where an assessee, if
\nfacts are proved, can seek relief by way of  waiver. The petitioner
\ncannot be heard to say that the petitioner has violated the
\nrequirements laid down by the statute, considering the scheme of
\npayment of tax in light of the charge fastened on the total income of
\nthe previous year u\/s.4 of the Act, but should be yet treated
\ndifferently, i.e. different from other assessees who have complied
\nwith the law.\n<\/p>\n
17.\tAs
\nnoted hereinbefore even for the purpose of computing interest u\/s.
\n234A of the Act, the difference of the amount on which interest
\nbecomes payable has to be worked out by deducting the advance tax
\npaid including any tax deducted or collected at source from the tax
\non the total income determined at the time of assessment. The default
\nof filing of  return of income beyond the prescribed date is also
\nadmitted. Therefore, it is not possible to accept the contention of
\nthe petitioner assessee that the amount paid beyond the Financial
\nYear  should be deducted   from the tax  on the total income as
\ndetermined on regular assessment.  This has to be so considering the
\ndefinition of the term ?Sadvance tax?? as appearing in
\nsection 2 of the Act which categorically stipulates that ?Sadvance
\ntax?? means  the advance tax payable in accordance with the
\nprovisions  of Chapter XVII-C of the Act. Even if contextual
\ninterpretation is adopted considering the opening portion of section
\n2 of the Act which states :??unless the context
\notherwise requires??, the  contention raised by the
\npetitioner does not merit acceptance; the context and setting of the
\naforesaid provisions do not even prima facie indicate that any other
\nview, like the one canvassed by the petitioner is possible.\n<\/p>\n
18.\tComing
\nto section 234B of the Act, the said provision directly deals with
\npayment of interest for  defaults in payment of advance tax. In fact
\nthe provision itself fastens liability to pay interest on the basis
\nof liability to pay advance tax u\/s. 208 of the Act and  failure to
\npay such tax or where the  advance tax paid by the assessee under the
\nprovisions of section 210 is less than the prescribed percentage of
\nthe assessed tax.  Therefore, even for the purpose of section 234B of
\nthe Act the petitioner cannot seek credit for the amounts paid beyond
\nthe Financial Year. Merely because the amounts have been paid  before
\nthe return of income is filed  the petitioner cannot seek any relief
\non that count.\n<\/p>\n
19.\tSection
\n140A of the Act provides for Self assessment. The said section
\nstipulates that  where any tax is payable  on the basis of any
\nreturn required to be furnished, after taking into  account  the
\namount of tax, if any, already paid under any  provision  of the Act
\nthe    the assessee shall be liable to pay such tax together with
\ninterest payable  under any provision of the Act for any delay in
\nfurnishing return, or any default or delay in payment of advance tax,
\nbefore furnishing  the return and the return shall be accompanied by
\nproof of payment of such tax and interest. In other words the
\nLegislature has  specifically provided that once there is default in
\neither furnishing of return or in payment of advance tax, both as
\nregards the amount and the period, interest has to be worked out by
\nthe assessee himself, pay the same, and attach proof of having made
\nsuch payment with the return of income and such payment would be
\ntreated as self assessment tax, which would be inclusive of the
\namount of tax  and the amount of interest payable. Thus there is  an
\ninherent indication in the statutory scheme  that any payment made
\nbeyond the Financial Year has to be considered but such payment has
\nto be accompanied by the interest payable for the default committed
\nin filing of the return of income or default in payments of advance
\ntax during the Financial Year. For this purpose, Legislature has not
\nequated both defaults, as to furnishing  of return beyond the
\nprescribed  date and short fall in advance tax, by providing for
\ncomputing interest separately  for both the defaults. Therefore,
\nmerely because  some amount is paid beyond the Financial Year but
\nbefore the return is filed the assessee cannot plead that the
\nassessee is not liable to pay interest u\/s. 234A of the Act. Nor can
\nthe assessee be given credit for such payment  made beyond the
\nFinancial Year for the purpose of computing interest u\/s. 234B of the
\nAct for the default in payments of advance tax.\n<\/p>\n
20.\tThus
\nconsidering the legislative intent which unfolds on a conjoint
\nreading of the aforesaid provisions it is not possible to agree with
\nthe petitioner that the  petitioner had not incurred any liability to
\npay interest either u\/s. 234A or u\/s. 234B of the Act.  The
\npetitioner also cannot contend that there is any overlapping of the
\nperiod for which the petitioner cannot be made liable for paying
\ninterest under both the provisions considering the fact that  both
\nthe defaults are independent of each other. The doctrine of double
\njeopardy envisaged by Article 20(2) of the Constitution of India or
\nsection 300 of the Code of Criminal Procedure, 1973 can have no
\napplication in these proceedings. The defaults,  and not offences,
\nare not one : non-filing or late filing of return and non-payment or
\nshort payment of advance tax cannot be equated. The period for which
\nthe liability to pay interest arises has to be computed in accordance
\nwith the termini fixed by each of the provisions viz. sections 234A
\nand 234B of the Act. The contention that if the statutory provision
\nresults in an absurdity  or mischief not intended by Legislature  the
\nCourt should import  words so as to make sense out of the provisions
\nalso does not merit acceptance considering the fact that on  a plain
\nreading of the provisions  the legislative intent which is
\ndiscernible  cannot be said to result in an absurdity.\n<\/p>\n
21.\tIn
\nfact, when one considers this contention  the other contention as to
\narbitrariness or unreasonableness of the provision is also required
\nto be considered simultaneously.  The petitioner states that the
\nprovision is arbitrary and unreasonable because the petitioner is not
\nbeing granted credit  for amounts paid beyond the Financial Year but
\nbefore the date of filing of the return and hence, the provision is
\narbitrary, inequitable and unreasonable. Nothing  can be  farther
\nfrom truth  inasmuch as in light of the legislative scheme considered
\nhereinbefore, majority of the assessees who become liable to pay
\nadvance tax  after having crossed the threshold limit, are fastened
\nwith liability to pay  tax in accordance with the charge levied u\/s.4
\nof the Act. Such assessees may be having income from salary, or from
\nprofession or business, or income from other sources etc. If they are
\nsubjected to payment of tax  by any of the prescribed modes viz. tax
\ndeducted at source or paid by way of advance tax in accordance with
\nthe provisions of chapter XVIIC of the Act, the assessee cannot seek
\nany relief on the ground of being discriminated against. To the
\ncontrary, if the plea raised by the petitioner is accepted, not only
\nwould it require to give a gobye to the entire statutory scheme but
\nit would also result in discrimination against majority of the
\nassessees who comply with requirements of the statutory provisions.
\nNo person is entitled to seek any relief on basis on inverse
\ndiscrimination.\n<\/p>\n
22.\tThus,
\nno case is made out by the petitioner for equitable relief. The
\ncontention based on various judgments cited in support of principles
\nof interpretation also cannot carry the case of the petitioner any
\nfurther in light of the statutory scheme laid down by the Act. It is
\ntrue that the Court must interpret the provisions of the statute upon
\nascertaining the object of the legislation through the  medium  or
\nauthoritative forms in which it is expressed. It is settled law that
\nthe Court should, while interpreting provisions of the statute,
\nassign its ordinary meaning. It is also a cardinal principle of
\ninterpretation of statute that the words of a statute  must be
\nunderstood in their natural, ordinary or popular sense and construed
\naccording to their  grammatical meaning, unless such construction
\nleads to some absurdity or unless there is something  in the context
\nor in the object of the statute to suggest to the contrary. Another
\nsalutary principle of construction is that when the words of the
\nstatute are clear, plain and unambiguous then the Court is bound to
\ngive effect to that meaning, irrespective  of the consequences.
\nApplying the aforesaid principles also it is not possible to accept
\nthe contentions raised by the petitioner.\n<\/p>\n
23.\tInsofar
\nas the contention regarding the provisions being ultravires the
\nConstitution no case is made out by the petitioner. It is true that
\nthe nature of the levy is compensatory  in character but from that it
\nis not possible to come to the conclusion that there is any
\narbitrariness or unreasonableness which would warrant striking down
\nthe provision. Even otherwise, the position in law is well settled. A
\ntaxing statute enjoys a greater latitude. An inference in regard to
\ncontravention of Article 14 of the Constitution  would, however,
\nordinarily be drawn if the provision seeks to impose on the same
\nclass of persons similarly situated a burden which leads to
\ninequality. That is not the case here. As already recorded
\nhereinbefore, the petitioner also cannot successfully contend that
\nthere is any unreasonable classification  considering majority of
\nassessees  who comply with the statutory requirements.\n<\/p>\n
24.\tThe
\nother contention  that is required to be considered is based on
\nprovisions of sections 59 to 61 of the Indian Contract Act. The same
\nalso cannot carry the case of the petitioner any further. As noticed
\nhereinbefore,  the statutory scheme provides u\/s. 140A of the Act to
\nmake payment of tax and interest for the stated defaults before the
\nreturn is filed and therefore, to contend that the respondent
\nauthority  could not have appropriated the amount paid towards
\ninterest does not merit acceptance.  The Explanation under
\nsub-section (1) of section 140A of the Act specifically provides that
\nwhere the amount paid by the assessee under the said sub-section
\nfalls short  of the aggregate of the tax and interest payable under
\nsub-section (1), the amount so paid shall first be adjusted towards
\nthe interest payable as aforesaid and the balance, if any, shall be
\nadjusted towards the tax payable. In light of this specific provision
\nunder the Act the general law under the Contract Act cannot be
\npressed into service by the petitioner. The said contention also
\ntherefore does not merit acceptance.\n<\/p>\n
25.\tThe
\nsubmission based on uniformity of expression  of opinion on the
\nground of wise judicial policy also does not deserve acceptance.
\nThere can be no dispute  about the proposition that in income-tax
\nmatters which are governed by  an all -India statute, when there is a
\ndecision of a High Court interpreting  a statutory provision, it
\nwould be a wise judicial policy and practice not to take a different
\nview. However, this is not an absolute proposition  and  there are
\ncertain well-known exceptions to it. In cases where  a decision is
\nsub silentio, per incuriam, obiter dicta or based on a concession or
\ntakes a view  which it is impossible  to arrive at or there is
\nanother view in the  field or  there is a subsequent  amendment of
\nthe statute or reversal or  implied overruling  of the decision  by a
\nHigh Court or some such  or similar infirmity is manifestly
\nperceivable  in the decision, a different view can be taken  by the
\nHigh Court.  This is clearly borne out  from the decision of this
\nCourt in Arvind Boards  and Paper
\nProducts Ltd. v. CIT<\/a> [1982] 137 ITR 635, which had also
\ntaken into consideration  the Bombay decision  in the case of
\nManeklal  Chunilal and Sons Ltd.\n<\/p>\n
[1953] 24 ITR 375 as
\nwell as  (1995) 211 ITR 575 CIT Vs. Deepak Family Transit No.1 and
\nothers. Hence, in light of the legislative scheme considered
\nhereinbefore the Court, despite highest esteem and respect, is unable
\nto agree  with the opinion expressed by the High Court of Delhi in
\nthe case of  Dr. Prannoy Roy and Another
\n(supra).\n<\/p>\n
26.\tIn
\nthe circumstances, on none of the grounds pleaded in the petition or
\nat the time of hearing,  the petition merits acceptance. The petition
\nis accordingly rejected. Rule discharged. Interim relief stands
\nvacated. There shall be no order as to costs.\n<\/p>\n
\t\t\t\tSd\/-\n<\/p>\n
 Sd\/-\n<\/p>\n
       (D.N.Mehta,
\nJ.)     (B.N.Mehta, J.)<\/p>\n
M.M.BHATT<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Roshanlal vs Deputy on 23 September, 2008 Author: D.A.Mehta,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp; Gujarat High Court Case Information System Print SCA\/8976\/1995 37\/ 37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8976 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd\/- HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Sd\/- ========================================================= 1 Whether […]<\/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":[16,8],"tags":[],"class_list":["post-157422","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRoshanlal vs Deputy on 23 September, 2008 - 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\/roshanlal-vs-deputy-on-23-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Roshanlal vs Deputy on 23 September, 2008 - 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