(Uday Umesh Lalit and Indu Malhotra, JJ.)
Nokia India Pvt. Ltd. _________________________________ Petitioner;
v.
State of Chhattisgarh and Another __________________ Respondent(s).
Writ Petition(s) (Civil) No(s). 212/2014, decided on April 16, 2019
The Order of the court was delivered by
Order
1. This writ petition under Article 32 of the Constitution of India prays for following principal relief:—
“a. issue a writ, order or direction under Article 32 of the Constitution of India in the nature of writ of mandamus declaring the sub-section (4) to Section 48 of the Chhattisgarh VAT Act, 2005 as unconstitutional and ultra vires Article 14, 19(1)(g) and Article 265 of the Constitution of India.”
2. The validity of the Section which is put in issue namely Section 48(4) of Chhattisgarh VAT Act 2005 reads as under :—
“48 …
(4) No appeal shall be admitted,-
(i) by the Additional Commissioner or Appellate Deputy Commissioner under sub-section (1), unless out of the total balance due from the dealer-
(a) where all the returns for the period to which the order appealed against relates have been filed and tax payable according to such returns has been paid, ten percent of such balance:
(b) where one or more of the returns for the period for which the order appealed against relates have not been filed and tax has not been paid or where such return of returns have been filed but tax has not been paid, such part of the balance which shall be equal to,-
(i) thirty three per cent, where the default relates to one quarter;
(ii) fifty per cent, where the default relates to two quarters; and
(iii) seventy five per cent, where the default relates to more than two quarters;
(c) fifty per cent of such balance; where a penalty under section 54 has been imposed;
(d) fifty percent of such balance where the order appealed against has been passed under section 22 and a penalty has been imposed under the said section, and
(e) twenty five per cent of such balance; in any other case, and
(ii) by the Tribunal under sub-section (2), unless out of the total balance due from the dealer after the order passed by the Additional Commissioner or Appellate Deputy Commissioner in appeal under sub-section (1), twenty percent of such balance, is paid and the memorandum of appeal is accompanied by a satisfactory proof of payment of such amount and thereupon the Additional Commissioner or Appellate Deputy Commissioner or the Tribunal, as the case may be, shall stay the recovery of the balance of tax and/or penalty till the decision of appeal:
Provided that where in the case of an appeal being filed under sub-section (1), a dealer is covered by more than one of the sub-clauses in clause (i) the provisions of the sub-clause requiring the payment of the highest amount, shall apply to such dealer and the appeal shall be admitted by Additional Commissioner or Appellate Deputy Commissioner only after he has paid such amount.”
3. Mr. Devadatt Kamat, learned Sr. Advocate appearing for the State invited our attention to the decision of this Court in State of A.P. v. P. Laxmi Devi1. The provision which came up for consideration in that decision was proviso to Section 47A of Indian Stamp Act, 1899 as applicable in the State of Andhra Pradesh.
4. In terms of proviso said proviso, no reference can be maintained unless an amount of 50% of deficit duty was deposited by the party concerned. While considering the provision which is completely pari materia, this Court observed as under:—
“16. A perusal of the said provision shows that when a document is produced (or comes in the performance of his functions) before a person who is authorized to receive evidence and a person who is in charge of a public office (except a police officer) before whom any instrument chargeable with duty is produced or comes in the performance of his functions, it is the duty of such person before whom the said instrument is produced to impound the document if it is not duly stamped. The use of the word ‘shall’ in Section 33(1) shows that there is no discretion in the authority mentioned in Section 33(1) to impound a document or not to do so. In our opinion, the word ‘shall’ in Section 33(1) does not mean ‘may’ but means ‘shall’. In other words, it is mandatory to impound a document produced before him or which comes before him in the performance of his functions. Hence the view taken by the High Court P. Laxmi Devi v. State of A.P.2 that the document can be returned if the party does not want to get it stamped is not correct.
17. In our opinion, a registering officer under the Registration Act (in this case the Sub-Registrar) is certainly a person who is in charge of a public office. Section 33(3) applies only when there is some doubt whether a person holds a public office or not. In our opinion, there can be no doubt that a Sub-Registrar holds a public office. Hence, he cannot return such a document to the party once he finds that it is not properly stamped, and he must impound it.
18. In our opinion, there is no violation of Articles 14, 19 or any other provision of the Constitution by the enactment of Section 47A as amended by the A.P Amendment Act 8 of 1998. This amendment was only for plugging the loopholes and for quick realization of the stamp duty. Hence it is well within the power of the State legislature vide Entry 63 of List II read with Entry 44 of List III of the Seventh Schedule to the Constitution.
19. It is well settled that stamp duty is a tax, and hardship is not relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide CIT v. V. MR. P. Firm Muar3. If the words used in a taxing statute are clear, one cannot try to find out the intention and the object of the statute. Hence the High Court fell in error in trying to go by the supposed object and intendment of the Stamp Act, and by seeking to find out the hardship which will be caused to a party by the impugned amendment of 1998.
20. In Partington v. Attorney General4, Lord Cairns observed as under:
“If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind. On the other hand if the court seeking to recover the tax cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.”
The above observation has often been quoted with approval by this Court, and we endorse it again. In Bengal Immunity Co. Ltd. v. State of Bihar5, AIR at p. 685 this Court held that if there is hardship in a statute it is for the legislature to amend the law, but the Court cannot be called upon to discard the cardinal rule of interpretation for mitigating a hardship.
21. It has been held by a Constitution Bench of this Court in ITO v. T.S. Devinatha Nadar6 (vide paragraph 23 to 28) that where the language of a taxing provision is plain, the Court cannot concern itself with the intention of the legislature. Hence, in our opinion the High Court erred in its approach of trying to find out the intention of the legislature in enacting the impugned amendment to the Stamp Act.
22. In this connection we may also mention that just as the reference under Section 47A has been made subject to deposit of 50% of the deficit duty, similarly there are provisions in various statutes in which the right to appeal has been given subject to some conditions. The constitutional validity of these provisions has been upheld by this Court in various decisions which are noted below.
23. In Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad7, this Court referred to its earlier decision in Vijay Prakash D. Mehta v. Collector of Customs8 wherein this Court observed : “The right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.”
24. In Anant Mills Co. Ltd. v. State of Gujarat9 this Court held that the right of appeal is a creature of the statute and it is for the Legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. The right to appeal which is a statutory right can be conditional or qualified.
25. In Elora Construction Company v. Municipal Corpn. of Greater Bombay10, the question before the Bombay High Court was as to the validity of Section 217 of the Bombay Municipal Act which required pre-deposit of the disputed tax for the entertainment of the appeal. The Bombay High Court upheld the said provision and its judgment has been referred to with approval in the decision of this Court in Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad7. This Court has also referred to its decision in Shyam Kishore v. MCD11 in which a similar provision was upheld.
26. It may be noted that in Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad7 the appellant had challenged the constitutional validity of Section 406(e) of the Bombay Municipal Corporation Act which required the deposit of the tax as a precondition for entertaining the appeal. The proviso to that provision permitted waiver of only 25% of the tax. In other words a minimum of 75% of the tax had to be deposited before the appeal could be entertained. The Supreme Court held that the provision did not violate Article 14 of the Constitution.
27. In view of the above, we are clearly of the opinion that Section 47A of the Indian Stamp Act as amended by A.P. Act 8 of 1998 is constitutionally valid and the judgment of the High Court declaring it unconstitutional is not correct.
28. We may, however, consider a hypothetical case. Supposing the correct value of a property is Rs. 10 lacs and that is the value stated in the sale deed, but the registering officer erroneously determines it to be, say, Rs. 2 crores. In that case while making a reference to the Collector under Section 47A, the registering officer will demand duty on 50% of Rs. 2 crores i.e. duty on Rs. 1 crore instead of demanding duty on Rs. 10 lacs. A party may not be able to pay this exorbitant duty demanded under the proviso to Section 47A by the registering officer in such a case. What can be done in this situation?
29. In our opinion in this situation it is always open to a party to file a writ petition challenging the exorbitant demand made by the registering officer under the proviso to Section 47A alleging that the determination made is arbitrary and/or based on extraneous considerations, and in that case it is always open to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 47A of the Indian Stamp Act by declaring the demand arbitrary. It is well settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi v. Union of India12. Hence, the party is not remedy-less in this situation.”
5. The basic issue thus stands completely covered by the judgement rendered by this Court in P. Laxmi Devi1.
6. Since under the interim orders, the petitioner had paid a sum of Rs. 5 crores; the amount so deposited shall be taken into account while arriving at the figure that the petitioner ought to deposit. We therefore, see no merit in the present petition. Thus, this writ petition is dismissed. No costs.
Writ Petition(s) (Civil) No(s). 212/2014
Nokia India Pvt. Ltd ________________________________ Petitioner
v.
The State of Chhattisgarh & Anr ___________________ Respondent(s)
(IA 1/2014-Stay application)
WITH
SLP(C) No. 7052/2014 (IV-A)
SLP(C) No. 7066/2014 (IV-A)
SLP(C) No. 7015/2014 (IV-A)
SLP(C) No. 7054/2014 (IV-A)
SLP(C) No. 27072/2016 (IV-B)
(APPLICATIONS FOR PERMISSION TO FILE PETITION (SLP/TP/WP/.. & FOR APPROPRIATE ORDERS/DIRECTIONS)
SLP(C) No. 8491/2016 (IV-B)
SLP(C) No. 26177/2016 (IV-B)
SLP(C) No. 2151/2017 (IV-B)
SLP(C) No. 1738/2017 (IV-B)
SLP(C) No. 967/2017 (IV-B)
(APPLICATIONS FOR C/D IN FILING AND REFILING) SLP(C) No. 1737/2017 (IV-B)
SLP(C) No. 4405/2017 (IV-B)
SLP(C) No. 30829/2016 (IV-B)
(APPN. FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) SLP(C) No. 29203/2016 (IV-B)
(APPN. FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)
SLP(C) No. 36303/2016 (IV-B)
SLP(C) No. 1742/2017 (IV-B)
SLP(C) No. 36300/2016 (IV-B)
SLP(C) No. 36305/2016 (IV-B)
SLP(C) No. 36306/2016 (IV-B)
SLP(C) No. 1743/2017 (IV-B)
SLP(C) No. 36302/2016 (IV-B)
SLP(C) No. 36294/2016 (IV-B)
(FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 3/2016)
SLP(C) No. 36297/2016 (IV-B)
SLP(C) No. 1741/2017 (IV-B)
SLP(C) No. 4406/2017 (IV-B)
SLP(C) No. 1740/2017 (IV-B)
SLP(C) No. 36292/2016 (IV-B)
SLP(C) No. 36298/2016 (IV-B)
SLP(C) No. 4383/2017 (IV-B)
SLP(C) No. 6381/2019 (IV-B)
Date : 16-04-2019 These matters were called on for hearing today.
(Before Uday Umesh Lalit and Indu Malhotra, JJ.)
For Petitioner(s) Mr. V. Lakshmikumaran, Adv.
Ms. Charanya L., Adv.
Mr. Aaditya Bhattacharya, Adv.
Ms. Apeksha Mehta, Adv.
Mr. Victor Das, Adv.
Mr. Manish Rastogi, Adv.
Mr. Vikas Singh Jangra, AOR
Mr. V. Shekhar, Sr. Adv.
Mr. Praveen Kumar, AOR
Mr. Rajiv Agnihotri, Adv.
Ms. Babita Sant, Adv.
Mr. Sandeep Goyal, Adv.
Mr. Pawanshree Agrawal, AOR
Ms. Abhipsa Anamika, Adv.
Mr. Kuldip Singh, AOR
Ms. Uttara Babbar, AOR
Ms. Bhavana Duhoon, Adv.
Mr. Manan Bansal, Adv
Mr. Alok Yadav, Adv.
Mr. Harish Pandey, AOR
Ms. Ranjeeta Rohatgi, AOR
For Respondent(s) Mr. Dev Datt Kamat, Sr. Adv.
Nishanth Patil, AOR
Mr. Javed Ur Rahman Adv.
Ms. Uttara Babbar, AOR
Ms. Bhavana Duhoon, Adv.
Mr. Manan Bansal, Adv.
Mr. Pai Amit, Adv.
Mr. Priyadarshi Chaitanyashil, Adv.
Ms. Sujata Kurdukar, AOR
Mr. Satinder S. Gulati, Adv.
Mrs. Kamaldeep Gulati, AOR
Mr. Praveen Kumar, AOR
Ms. Manju Jetley, AOR
Ms. Neha Gulati, Adv.
Mr. Jatinder Pal Singh, Adv.
Mr. Mayank Pandey, AOR
Mr. Pawanshree Agrawal, AOR
Ms. Abhipsa Anamika, Adv.
Ms. Sakshi Kakkar, AOR
Mr. Shakti Singh, Adv.
Mr. Sandeep Chilana, Adv.
Mr. Jasmeet Singh, Adv.
UPON hearing the counsel the Court made the following
ORDER
(SLP (C) No. 7052/14, 7066/14, 7015/14 and 7054/14 [ITEM 35.1 to 35.4 respectively])
7. All these connected matters filed by the same petitioner are directly against the orders passed by Deputy Commissioner Commercial Tax Raipur. We see no reason to interfere, hence these SLPs are also dismissed.
8. Since we are dismissing the SLPs, the Appellate Authority may consider condoning the delay in preferring the Appeal subject to payment of pre-deposit.
SLP(C) No. 27072/2016, SLP(C) No. 8491/2016, SLP(C) No. 26177/2016, SLP(C) No. 2151/2017, SLP(C) No. 1738/2017, SLP(C) No. 967/2017, SLP(C) No. 1737/2017, SLP(C) No. 4405/2017, SLP(C) No. 30829/2016, SLP(C) No. 29203/2016, SLP(C) No. 36303/2016, SLP(C) No. 1742/2017, SLP(C) No. 36300/2016, SLP(C) No. 36305/2016, SLP(C) No. 36306/2016, SLP(C) No. 1743/2017, SLP(C) No. 36302/2016, SLP(C) No. 36294/2016, SLP(C) No. 36297/2016, SLP(C) No. 1741/2017, SLP(C) No. 4406/2017, SLP(C) No. 1740/2017, SLP(C) No. 36292/2016, SLP(C) No. 36298/2016, SLP(C) No. 4383/2017 & SLP(C) No. 6381/2019 (IV-B)
[ITEM 35.5 to 35.30]
9. Permission to file SLP is granted.
10. Delay condoned.
11. Heard learned counsel for the parties.
12. Judgment reserved.
13. The parties are at liberty to file written submissions within 7 days from today.
14. Learned counsel for the state of Punjab shall also file copy of the enactments in question.
15. Learned counsel for the respondent submits that SLP(C) No. 1743/2017, SLP(C) No. 36302/2016 & SLP(C) No. 4383/2017 (Item at Sl. No. 35.20, 35.21 & 35.29 respectively) have become infructuous as the appeals themselves have been dealt with and disposed of.
16. Learned counsel for the State to check and make appropriate response in the written submissions.
———
1 (2008) 4 SCC 720
2 2001 SCC OnLine AP 448 : AIR 2001 AP 446
3 AIR 1965 SC 1216
4 (1869) LR 4 HL 100
5 AIR 1955 SC 661
6 AIR 1968 SC 623
7 (1999) 4 SCC 468
8 (1988) 4 SCC 402
9 (1975) 2 SCC 175
10 1979 SCC OnLine Bom 38 : AIR 1980 Bom 162
11 (1993) 1 SCC 22
12 (1978) 1 SCC 248
