COMMR.OF COMMERCIAL TAX vs. M/S BAJAJ AUTO LTD.

CORRIGENDUM REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 5913-5920 OF 2008 Commissioner of Commercial Taxes & Ors. .... Appellant(s) Versus M/s Bajaj Auto Ltd. & Anr. .... Respondent(s) WITH CIVIL APPEAL NOs. 5921 OF 2008 J U D G M E N T JUDGMENT R.K. Agrawal, J. 1) Challenge in the above said appeals is to the legality of the common judgment and order dated 05.01.2007 rendered by a Division Bench of the High Court of Orissa at Cuttack in Writ Petition (C) being No. 233 of 2002 and connected matters 1 Page 1 wherein the High Court allowed the petitions filed by the respondents herein. 2) Civil Appeal No. 5913 of 2008 is being treated as the

below:- a) The respondents are engaged in the sale and purchase of Motor Vehicles and are registered dealers under the Orissa Sales Tax Act, 1947 (in short ‘the OST Act’) as well as under the Central Sales Tax Act. The respondents had been paying entry tax on the goods when they were bought into the State of Orissa under Section 3(3) of the Orissa Entry Tax Act, 1999 (in short ‘the OET Act’). However, they were paying surcharge on the balance amount after deduction of the entry tax paid on JUDGMENT the motor vehicles. b) The Finance Department, Government of Orissa, by letter dated 20.11.2001, stated that the surcharge under the OST Act shall be calculated on the payable amount of tax due on the taxable turnover (Section 5 & 5A) instead of on the reduced Sales Tax amount after setting off of entry tax. 2 Page 2 c) On 30.03.2002, the Sales Tax Officer, Sambalpur-I Circle, passed an order under Section 12(4) of the OST Act wherein surcharge was levied under Section 5A of the OST Act on the

d) Being aggrieved by the demand notice dated 30.03.2002 as well as the letter dated 20.11.2001 issued by the Finance Department of the Government of Orissa, the respondent-Company filed a writ petition being No. 233 of 2002 along with a set of other writ petitions filed by the respondents herein before the High Court of Orissa at Cuttack. e) The Division Bench of the High Court, vide common judgment and order dated 05.01.2007, allowed the petitions JUDGMENT filed by the respondents herein. (f) Being aggrieved by the judgment and order dated 05.01.2007, the appellants have preferred these appeals before this Court by way of special leave. 3) Learned senior counsel for the appellants have taken the stand that there is nothing in the provisions of the OET Act or the Rules made thereunder which would alter the mode of 3 Page 3 computation prescribed in Section 5A of the OST Act. Section 4 of the OET Act provides for reduction of the liability of a dealer under the Sales Tax Act to the extent of entry tax paid

reduction of entry tax. It has nothing to do with the computation of the surcharge under the OST Act. In any event, in terms of Section 4 of the OET Act, reduction of entry tax paid by the dealers is from the liability under the Sales Tax Act. In substance, it means that the total liability under the Sales Tax Act having been determined would then be reduced by the extent of entry tax paid. 4) Learned senior counsel further submitted that the illustration given under Rule 18 of the Odisha Entry Tax Rule, JUDGMENT 1999 (in short ‘the Rules’) neither curtails nor expands the ambit of the provisions of the Act for which he relied upon a decision of this Court in Shambhu Nath Mehra vs. The State of Ajmer AIR 1956 SC 404, wherein it was held as under:- 4 Page 4 “ 11. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit;….”

wherein this Court has held as under:- “75. The illustration appended to the Rules does not envisage such a situation. Illustrations although are of relevance and have some value in the construction of the text of the sections but they cannot have the effect of modifying the language of the statute and they cannot either curtail or expand the ambit of the statute.” 6) Learned senior counsel further submitted that the levy of tax includes surcharge for which he relied upon the following judgments of this Court in:- (i) In The Commissioner of Income Tax, Kerala vs. K. JUDGMENT Srinivasan (1972) 4 SCC 526, this Court has held as under:- “10. The meaning of the word “surcharge” as given in the Webster’s New International Dictionary includes among others “to charge (one) too much or in addition …” also “additional tax”.” 5 Page 5 (ii) In The Madurai District Central Co-operative Bank Ltd. vs. The Third Income Tax Officer, Madurai (1975) 2 SCC 454, it was held as under:-

(iii) In M/s Hoechst Pharmaceuticals Ltd. and Others vs. State of Bihar and Others (1983) 4 SCC 45, it was held as under:- “ 28. It cannot be doubted that a surcharge partakes of the nature of sales tax and therefore it was within the competence of the State legislature to enact sub-section (1) of Section 5 of the Act for the purpose of levying surcharge on certain class of dealers in addition to the tax payable by them….. JUDGMENT 79. ….A surcharge in its true nature and character is nothing but a higher rate of tax to raise revenue for general purposes….” (iv) In M/s Ashok Service Centre and Others vs. State of Orissa (1983) 2 SCC 82, this Court has held as under:- 6 Page 6 “ 17….The Act only levied some extra sales tax in addition to what had been levied by the principal Act. The nature of the taxes levied under the Act and under the principal Act was the same and the legislature expressly made the provisions of the principal Act mutatis mutandis applicable to the levy under the Act…..” (v) In Sarojini Tea Co. (P) Ltd. vs. Collector of Dibrugarh, Assam and Another (1992) 2 SCC 156, it was held as under:- “ 16. From the aforesaid decisions, it is amply clear that the expression ‘surcharge’ in the context of taxation means an additional imposition which results in enhancement of the tax and the nature of the additional imposition is the same as the tax on which it is imposed as surcharge. A surcharge on land revenue is an enhancement of the land revenue to the extent of the imposition of surcharge. The nature of such imposition is the same viz., land revenue on which it is a surcharge.” 7) On the other hand, learned senior counsel for the JUDGMENT respondents submitted that in view of the clarification issued by the office of Commercial Tax through e-mail to one of the dealers in motor vehicles, viz., TELCO, Bhubaneswar, the appellants were stopped from demanding surcharge on the entire amount of tax payable under the OST Act before deducting the amount payable under the OET Act. According 7 Page 7 to him, the clarification issued by the Commercial Tax Department to TELCO, Bhubaneswar, was in accordance with the illustration appended to Rule 18 of the Rules which did

before deducting the entry tax paid while computing the amount of sales tax payable. He, thus, submitted that the amount of surcharge is to be levied only on the balance amount of sales tax payable on the sale price of the motor vehicle after deducting the entry tax paid. According to him, if two constructions are possible then the one which preserves the workability and efficacy has to be preferred for which he relied upon a decision of this Court in State of Tamil Nadu vs. M.K. Kandaswami and Others (1975) 4 SCC 745, JUDGMENT wherein it has been held as under:- “ 26. It may be remembered that Section 7-A is at once a charging as well as a remedial provision. Its main object is to plug leakage and prevent evasion of tax. In interpreting such a provision, a construction which would defeat its purpose and, in effect, obliterate it from the statute book, should be eschewed. If more than one construction is possible, that which preserves its workability, and efficacy is to be preferred to the one which would render it otiose or sterile. The view taken by the High Court is repugnant to this cardinal canon of interpretation.” 8 Page 8 8) Learned senior counsel also relied upon a decision of this Court in Associated Cement Companies Ltd. vs. State of Bihar and Others (2004) 7 SCC 642, wherein this Court has

tax paid under the Bihar Entry Tax Act while working out the tax payable by it under the Bihar Sales Tax Act. 9) Heard learned counsel for the parties and perused the records. 10) The sole question for consideration is whether the ‘Surcharge’ under Section 5A of the OST Act is to be computed on the gross amount of sales tax or on the net amount of sales tax after setting of or deducting the amount of entry tax? 11) Under Section 5 of the OST Act, Sales Tax is payable by a JUDGMENT dealer on the taxable turnover at a prescribed rate. Under Section 5A, it is provided inter alia for payment of surcharge. Section 5A of the OST Act (as it stood at the relevant time) reads as under: “5A Surcharge: (1) Every dealer whose gross turnover during any year exceeds rupees ten lakhs shall, in addition to the tax payable by him under this Act, also pay a surcharge at the rate of ten per centum of the total amount of tax payable by him:…..” 9 Page 9 12) It would also be relevant to reproduce Section 4 of the OET Act (as it stood at the relevant time) which reads as under:-

(2) When an importer or manufacturer of goods specified in Part-III of the schedule except motor vehicles pays tax under sub-section (1) of section 3 or section 26 of this Act, being a Dealer under the Sales Tax Act becomes liable to pay tax under the said Act by virtue of Sale of such goods, then his liability under the Sales Tax Act shall be reduced to the extent of tax paid under this Act. (3) The reduction in tax liability of an importer as provided in sub-section (1) or of an importer or manufacturer as provided in sub-section (2) shall not be allowed, unless the entry tax paid and tax payable under the Sales Tax Act are shown separately in the cash memo or the bill or invoice issued by him for the sale by virtue of which such liability accrues.” JUDGMENT 13) Rule 18 of the Odisha Entry Tax Rule, 1999 is reproduced hereunder: “ 18. Set off of Entry Tax against Sales Tax : (1) When the importer of a motor vehicle liable to pay tax 10 Page 10 under sub-section (2) of section 3 of this Act being a dealer in motor vehicles becomes liable to pay tax under the Sales Tax Act by virtue of sale of such motor vehicle, his tax liability under the Sales Tax Act shall be reduced to the extent of the tax paid under these rules.

Note: If the sales tax payable on such motor vehicle is less than the entry tax paid, then the sales tax payable will be nil. (2) When an importer of goods specified in Part III of the Schedule to the Act other than motor vehicle, liable to pay tax under this Act is also a dealer liable to pay tax under the Sales Tax Act, then the Sales Tax payable on the sale of goods shall be reduced to the extent of entry tax paid in the same manner as illustrated under the sub-rule(1).” JUDGMENT In view of the statutory provision contained in Rule 18 of the Rules, the tax payable under the said Act was to be determined after deduction therefrom the entry tax paid by a dealer importing vehicle into the State of Orissa. 14) Since the determination of surcharge payable under the OST Act was relatable and/or linked to the tax payable under 11 Page 11 the OET Act, a clarification was sought for by one of the dealers in motor vehicles, namely, TELCO which is similarly situated as the Respondent No.1-company from the office of

of the Rules, which is as under:- “Surcharge is payable on the amount of tax that becomes payable by a dealer after set off of entry tax paid at the time of purchase of such goods.” 15) In accordance with the clarification issued to TELCO, Bhubaneswar, as aforesaid, which was also circulated to other dealers of motor vehicles, including the Respondent No.1-Company, surcharge was calculated and paid which was quantified after deducting therefrom the amount of entry tax JUDGMENT paid by the Respondent No.1-Company while importing a motor vehicle into the State of Orissa. 16) On 20.11.2001, the Government of Orissa, in the Finance Department, wrote a letter to the Commissioner of Commercial Taxes, Orissa relating to the computation of tax payable on the motor vehicle for the purpose of levy of surcharge on an 12 Page 12 interpretation of the provisions of the OET Act, the OST Act and the Rules which is as under:- “GOVERNMENT OF ORISSA FINANCE DEPARTMENT No. CTB-23/2001. 55863/F From: Shri K.C. Parija, Deputy Secretary to Government To The Commissioner of Commercial Taxes, Orissa, Cuttack Sub: Computation of tax payable on Motor Vehicle for the purpose of levy of surcharge. Ref: C.C.T.’s letter No. 15264/CT, dt. 12.7.2000 th Bhubaneswar, the 19 November, 2001. Sir, In inviting a reference to the aforesaid letter, I am directed to say that surcharge under Orissa Sales Tax Act, 1947, shall be calculated on the payable amount of tax due on the taxable turnover (Section 5 & 5A) instead of on the reduced Sales Tax amount after setting off of entry tax. The position may kindly be clarified to the Field Officers and if such faulty procedure of charging surcharge is adopted by any of the Circle Officers, same should be discontinued forthwith and corrective measure as per the provisions of the statue may be taken up to make good the loss. JUDGMENT 2. It may further be noted that the illustration in rule -18 of Orissa Entry Tax Rule, 1999 or provision of any other Finance Department notification have limited implication for that purpose only and they have no overriding effect on the statutory provisions of the OST Act. Yours faithfully Sd/- (K.C. Parija) DEPUTY SECRETARY TO GOVERNMENT OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES: ORISSA: CUTTACK 13 Page 13 Dated: 20.11.01 Memo No. 24808/CT III(I) 207/2000

Taxes (Gen) Orissa, Cuttack” In the said letter, it was inter alia intimated that surcharge shall be calculated on the payable amount of tax due on the taxable turnover (section 5 and 5A) instead of on the reduced sales tax amount after setting off of Entry Tax. 17) On 30.03.2002, the Sales Tax Officer, Sambalpur-I Circle, Sambalpur passed an order under section 12(4) of the OST Act wherein surcharge has been levied under Section 5A JUDGMENT of the said Act on the gross sales tax payable, without deducting the entry tax as required under Section 4 of the OET Act. As a result of this, excess surcharge to the tune of Rs. 21,25,117.37/- has been levied by the Sales Tax Officer. 18) It is well settled that an illustration given under the Rules does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its 14 Page 14 ambit. Further, surcharge is nothing but an additional tax and is payable on the sale of goods in the manner laid down for levy of surcharge. In view of the provisions contained in

amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. 19) On a plain reading of the provisions of the OST Act as well as the OET Act and the Rules, it can be seen that Section 5A of the OST Act creates a charge and imposes liability on every dealer under the OST Act to pay surcharge @ 10% on the amount of tax payable by him under the OST Act. Section 4(1) of the OET Act, in the same way, prescribes for reduction of the tax amount payable by the dealer to the extent of entry tax JUDGMENT already paid for the same article for which sales tax is payable. The Section, does not specifically contemplate anything, which would indicate that the provisions of the OET Act or the Rules have to be taken into consideration while assessing the sales tax or surcharge. In essence, the provisions made in the Rules lay down the modality of ‘set off’. It is important to mention here that OST Act was enacted in the year 1947 whereas OET 15 Page 15 Act was enacted in 1999. The provision of set off has been made in the OET Act and the Rules framed thereunder and not in the OST Act. The heading of Section 4 of the OET Act

“reduction in tax liability”. Sub-Sections 1 and 2 of Section 4 of the OET Act provide for reduction of liability under the OST Act. 20) It is well settled that the objective of framing rules is to fill up the gaps in a statutory enactment so as to make the statutory provisions operative. Rules also clarify the provisions of an Act under which the same are framed. Section 4 of the OST Act is a charging Section attracting liability to pay Sales Tax “on sales and purchases effected”. JUDGMENT Section 5 of the OST Act provides for rate of Sales Tax. Section 5A of the OST Act levies surcharge on the dealer which is nothing but an additional tax. Therefore, on a plain reading of the provisions under the OST Act as well as under the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. A harmonious 16 Page 16 reading of Rule 18 of the Rules as well as Section 4 of the OET Act and Sections 5, 5-A of the OST Act reveals no conflict or inconsistency. The Rules are to be construed to have been

enacted and not for the purpose of bringing inconsistencies. 21) Section 5A of the OST Act is a self-contained provision and the surcharge, as already seen above, is leviable at the specified per centum of tax payable under the OST Act. Tax payable under the OST Act is independent of the provisions of OET Act. The assessment or quantification or computation of surcharge shall have to be made in accordance with the provisions of the OST Act. 22) Thus, on a conjoint reading of Section 5 of the OST Act, JUDGMENT Section 4 of the OET Act and Rule 18 of the Rules, we are of the considered opinion that the amount of surcharge under Section 5A of the OST Act is to be levied before deducting the amount of entry tax paid by a dealer. 23) In view of the forgoing discussion, the impugned judgment and order dated 05.01.2007 passed by the High 17 Page 17 Court cannot be sustained and is liable to be set aside. In the result, all the appeals are allowed; however, the parties shall bear their own cost. ...…………….………………………J. (SHIVA KIRTI SINGH) . …....…………………………………J. (R.K. AGRAWAL) NEW DELHI; OCTOBER 28, 2016. JUDGMENT 18 Page 18 REPORTABLE IN THE SUPREME COURT OF INDIA

Commissioner of Commercial Taxes & Ors. .... Appellant(s) Versus M/s Bajaj Auto Ltd. & Anr. .... Respondent(s) WITH CIVIL APPEAL NOs. 5921 OF 2008 J U D G M E N T JUDGMENT R.K. Agrawal, J. 1) Challenge in the above said appeals is to the legality of the common judgment and order dated 05.01.2007 rendered by a Division Bench of the High Court of Orissa at Cuttack in Writ Petition (C) being No. 233 of 2002 and connected matters 19 Page 19 wherein the High Court allowed the petitions filed by the respondents herein. 2) Civil Appeal No. 5913 of 2008 is being treated as the

below:- f) The respondents are engaged in the sale and purchase of Motor Vehicles and are registered dealers under the Orissa Sales Tax Act, 1947 (in short ‘the OST Act’) as well as under the Central Sales Tax Act. The respondents had been paying entry tax on the goods when they were bought into the State of Orissa under Section 3(3) of the Orissa Entry Tax Act, 1999 (in short ‘the OET Act’). However, they were paying surcharge on the balance amount after deduction of the entry tax paid on JUDGMENT the motor vehicles. g) The Finance Department, Government of Orissa, by letter dated 20.11.2001, stated that the surcharge under the OST Act shall be calculated on the payable amount of tax due on the taxable turnover (Section 5 & 5A) instead of on the reduced Sales Tax amount after setting off of entry tax. 20 Page 20 h) On 30.03.2002, the Sales Tax Officer, Sambalpur-I Circle, passed an order under Section 12(4) of the OST Act wherein surcharge was levied under Section 5A of the OST Act on the

i) Being aggrieved by the demand notice dated 30.03.2002 as well as the letter dated 20.11.2001 issued by the Finance Department of the Government of Orissa, the respondent-Company filed a writ petition being No. 233 of 2002 along with a set of other writ petitions filed by the respondents herein before the High Court of Orissa at Cuttack. j) The Division Bench of the High Court, vide common judgment and order dated 05.01.2007, allowed the appeals JUDGMENT filed by the respondents herein. (f) Being aggrieved by the judgment and order dated 05.01.2007, the appellants have preferred these appeals before this Court by way of special leave. 3) Learned senior counsel for the appellants have taken the stand that there is nothing in the provisions of the OET Act or the Rules made thereunder which would alter the mode of 21 Page 21 computation prescribed in Section 5A of the OST Act. Section 4 of the OET Act provides for reduction of the liability of a dealer under the Sales Tax Act to the extent of entry tax paid

reduction of entry tax. It has nothing to do with the computation of the surcharge under the OST Act. In any event, in terms of Section 4 of the OET Act, reduction of entry tax paid by the dealers is from the liability under the Sales Tax Act. In substance, it means that the total liability under the Sales Tax Act having been determined would then be reduced by the extent of entry tax paid. 4) Learned senior counsel further submitted that the illustration given under Rule 18 of the Odisha Entry Tax Rule, JUDGMENT 1999 (in short ‘the Rules’) neither curtails nor expands the ambit of the provisions of the Act for which he relied upon a decision of this Court in Shambhu Nath Mehra vs. The State of Ajmer AIR 1956 SC 404, wherein it was held as under:- 22 Page 22 “ 11. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit;….”

wherein this Court has held as under:- “75. The illustration appended to the Rules does not envisage such a situation. Illustrations although are of relevance and have some value in the construction of the text of the sections but they cannot have the effect of modifying the language of the statute and they cannot either curtail or expand the ambit of the statute.” 6) Learned senior counsel further submitted that the levy of tax includes surcharge for which he relied upon the following judgments of this Court in:- (i) In The Commissioner of Income Tax, Kerala vs. K. JUDGMENT Srinivasan (1972) 4 SCC 526, this Court has held as under:- “10. The meaning of the word “surcharge” as given in the Webster’s New International Dictionary includes among others “to charge (one) too much or in addition …” also “additional tax”.” 23 Page 23 (ii) In The Madurai District Central Co-operative Bank Ltd. vs. The Third Income Tax Officer, Madurai (1975) 2 SCC 454, it was held as under:-

(iii) In M/s Hoechst Pharmaceuticals Ltd. and Others vs. State of Bihar and Others (1983) 4 SCC 45, it was held as under:- “ 28. It cannot be doubted that a surcharge partakes of the nature of sales tax and therefore it was within the competence of the State legislature to enact sub-section (1) of Section 5 of the Act for the purpose of levying surcharge on certain class of dealers in addition to the tax payable by them….. JUDGMENT 79. ….A surcharge in its true nature and character is nothing but a higher rate of tax to raise revenue for general purposes….” (iv) In M/s Ashok Service Centre and Others vs. State of Orissa (1983) 2 SCC 82, this Court has held as under:- 24 Page 24 “ 17….The Act only levied some extra sales tax in addition to what had been levied by the principal Act. The nature of the taxes levied under the Act and under the principal Act was the same and the legislature expressly made the provisions of the principal Act mutatis mutandis applicable to the levy under the Act…..” (v) In Sarojini Tea Co. (P) Ltd. vs. Collector of Dibrugarh, Assam and Another (1992) 2 SCC 156, it was held as under:- “ 16. From the aforesaid decisions, it is amply clear that the expression ‘surcharge’ in the context of taxation means an additional imposition which results in enhancement of the tax and the nature of the additional imposition is the same as the tax on which it is imposed as surcharge. A surcharge on land revenue is an enhancement of the land revenue to the extent of the imposition of surcharge. The nature of such imposition is the same viz., land revenue on which it is a surcharge.” 7) On the other hand, learned senior counsel for the JUDGMENT respondents submitted that in view of the clarification issued by the office of Commercial Tax through e-mail to one of the dealers in motor vehicles, viz., TELCO, Bhubaneswar, the appellants were stopped from demanding surcharge on the entire amount of tax payable under the OST Act before deducting the amount payable under the OET Act. According 25 Page 25 to him, the clarification issued by the Commercial Tax Department to TELCO, Bhubaneswar, was in accordance with the illustration appended to Rule 18 of the Rules which did

before deducting the entry tax paid while computing the amount of sales tax payable. He, thus, submitted that the amount of surcharge is to be levied only on the balance amount of sales tax payable on the sale price of the motor vehicle after deducting the entry tax paid. According to him, if two constructions are possible then the one which preserves the workability and efficacy has to be preferred for which he relied upon a decision of this Court in State of Tamil Nadu vs. M.K. Kandaswami and Others (1975) 4 SCC 745, JUDGMENT wherein it has been held as under:- “ 26. It may be remembered that Section 7-A is at once a charging as well as a remedial provision. Its main object is to plug leakage and prevent evasion of tax. In interpreting such a provision, a construction which would defeat its purpose and, in effect, obliterate it from the statute book, should be eschewed. If more than one construction is possible, that which preserves its workability, and efficacy is to be preferred to the one which would render it otiose or sterile. The view taken by the High Court is repugnant to this cardinal canon of interpretation.” 26 Page 26 8) Learned senior counsel also relied upon a decision of this Court in Associated Cement Companies Ltd. vs. State of Bihar and Others (2004) 7 SCC 642, wherein this Court has

tax paid under the Bihar Entry Tax Act while working out the tax payable by it under the Bihar Sales Tax Act. 9) Heard learned counsel for the parties and perused the records. 10) The sole question for consideration is whether the ‘Surcharge’ under Section 5A of the OST Act is to be computed on the gross amount of sales tax or on the net amount of sales tax after setting of or deducting the amount of entry tax? 11) Under Section 5 of the OST Act, Sales Tax is payable by a JUDGMENT dealer on the taxable turnover at a prescribed rate. Under Section 5A, it is provided inter alia for payment of surcharge. Section 5A of the OST Act (as it stood at the relevant time) reads as under: “5A Surcharge: (1) Every dealer whose gross turnover during any year exceeds rupees ten lakhs shall, in addition to the tax payable by him under this Act, also pay a surcharge at the rate of ten per centum of the total amount of tax payable by him:…..” 27 Page 27 12) It would also be relevant to reproduce Section 4 of the OET Act (as it stood at the relevant time) which reads as under:-

(2) When an importer or manufacturer of goods specified in Part-III of the schedule except motor vehicles pays tax under sub-section (1) of section 3 or section 26 of this Act, being a Dealer under the Sales Tax Act becomes liable to pay tax under the said Act by virtue of Sale of such goods, then his liability under the Sales Tax Act shall be reduced to the extent of tax paid under this Act. (3) The reduction in tax liability of an importer as provided in sub-section (1) or of an importer or manufacturer as provided in sub-section (2) shall not be allowed, unless the entry tax paid and tax payable under the Sales Tax Act are shown separately in the cash memo or the bill or invoice issued by him for the sale by virtue of which such liability accrues.” JUDGMENT 13) Rule 18 of the Odisha Entry Tax Rule, 1999 is reproduced hereunder: “ 18. Set off of Entry Tax against Sales Tax : (1) When the importer of a motor vehicle liable to pay tax 28 Page 28 under sub-section (2) of section 3 of this Act being a dealer in motor vehicles becomes liable to pay tax under the Sales Tax Act by virtue of sale of such motor vehicle, his tax liability under the Sales Tax Act shall be reduced to the extent of the tax paid under these rules.

Note: If the sales tax payable on such motor vehicle is less than the entry tax paid, then the sales tax payable will be nil. (2) When an importer of goods specified in Part III of the Schedule to the Act other than motor vehicle, liable to pay tax under this Act is also a dealer liable to pay tax under the Sales Tax Act, then the Sales Tax payable on the sale of goods shall be reduced to the extent of entry tax paid in the same manner as illustrated under the sub-rule(1).” JUDGMENT In view of the statutory provision contained in Rule 18 of the Rules, the tax payable under the said Act was to be determined after deduction therefrom the entry tax paid by a dealer importing vehicle into the State of Orissa. 14) Since the determination of surcharge payable under the OET Act was relatable and/or linked to the tax payable under 29 Page 29 the OST Act, a clarification was sought for by one of the dealers in motor vehicles, namely, TELCO which is similarly situated as the Respondent No.1-company from the office of

of the Rules, which is as under:- “Surcharge is payable on the amount of tax that becomes payable by a dealer after set off of entry tax paid at the time of purchase of such goods.” 15) In accordance with the clarification issued to TELCO, Bhubaneswar, as aforesaid, which was also circulated to other dealers of motor vehicles, including the Respondent No.1-Company, surcharge was calculated and paid which was quantified after deducting therefrom the amount of entry tax JUDGMENT paid by the Respondent No.1-Company while importing a motor vehicle into the State of Orissa. 16) On 20.11.2001, the Government of Orissa, in the Finance Department, wrote a letter to the Commissioner of Commercial Taxes, Orissa relating to the computation of tax payable on the motor vehicle for the purpose of levy of surcharge on an 30 Page 30 interpretation of the provisions of the OET Act, the OST Act and the Rules which is as under:- “GOVERNMENT OF ORISSA FINANCE DEPARTMENT No. CTB-23/2001. 55863/F From: Shri K.C. Parija, Deputy Secretary to Government To The Commissioner of Commercial Taxes, Orissa, Cuttack Sub: Computation of tax payable on Motor Vehicle for the purpose of levy of surcharge. Ref: C.C.T.’s letter No. 15264/CT, dt. 12.7.2000 th Bhubaneswar, the 19 November, 2001. Sir, In inviting a reference to the aforesaid letter, I am directed to say that surcharge under Orissa Sales Tax Act, 1947, shall be calculated on the payable amount of tax due on the taxable turnover (Section 5 & 5A) instead of on the reduced Sales Tax amount after setting off of entry tax. The position may kindly be clarified to the Field Officers and if such faulty procedure of charging surcharge is adopted by any of the Circle Officers, same should be discontinued forthwith and corrective measure as per the provisions of the statue may be taken up to make good the loss. JUDGMENT 2. It may further be noted that the illustration in rule -18 of Orissa Entry Tax Rule, 1999 or provision of any other Finance Department notification have limited implication for that purpose only and they have no overriding effect on the statutory provisions of the OST Act. Yours faithfully Sd/- (K.C. Parija) DEPUTY SECRETARY TO GOVERNMENT OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES: ORISSA: CUTTACK 31 Page 31 Dated: 20.11.01 Memo No. 24808/CT III(I) 207/2000

Taxes (Gen) Orissa, Cuttack” In the said letter, it was inter alia intimated that surcharge shall be calculated on the payable amount of tax due on the taxable turnover (section 5 and 5A) instead of on the reduced sales tax amount after setting off of Entry Tax. 17) On 30.03.2002, the Sales Tax Officer, Sambalpur-I Circle, Sambalpur passed an order under section 12(4) of the OST Act wherein surcharge has been levied under Section 5A JUDGMENT of the said Act on the gross sales tax payable, without deducting the entry tax as required under Section 4 of the OET Act. As a result of this, excess surcharge to the tune of Rs. 21,25,117.37/- has been levied by the Sales Tax Officer. 18) It is well settled that an illustration given under the Rules does not exhaust the full content of the section which it illustrates but equally it can neither curtails nor expands its 32 Page 32 ambit. Further, surcharge is nothing but an additional tax and is payable on the sale of goods in the manner laid down for levy of surcharge. In view of the provisions contained in

amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. 19) On a plain reading of the provisions of the OST Act as well as the OET Act and the Rules, it can be seen that Section 5A of the OST Act creates a charge and imposes liability on every dealer under the OST Act to pay surcharge @ 10% on the amount of tax payable by him under the OST Act. Section 4(1) of the OET Act, in the same way, prescribes for reduction of the tax amount payable by the dealer to the extent of entry tax JUDGMENT already paid for the same article for which sales tax is payable. The Section, does not specifically contemplate anything, which would indicate that the provisions of the OET Act or the Rules have to be taken into consideration while assessing the sales tax or surcharge. In essence, the provisions made in the Rules lay down the modality of ‘set off’. It is important to mention here that OST Act was enacted in the year 1947 whereas OET 33 Page 33 Act was enacted in 1999. The provision of set off has been made in the OET Act and the Rules framed thereunder and not in the OST Act. The heading of Section 4 of the OET Act

“reduction in tax liability”. Sub-Sections 1 and 2 of Section 4 of the OET Act provide for reduction of liability under the OST Act. 20) It is well settled that the objective of framing rules is to fill up the gaps in a statutory enactment so as to make the statutory provisions operative. Rules also clarify the provisions of an Act under which the same are framed. Section 4 of the OST Act is a charging Section attracting liability to pay Sales Tax “on sales and purchases effected”. JUDGMENT Section 5 of the OST Act provides for rate of Sales Tax. Section 5A of the OST Act levies surcharge on the dealer which is nothing but an additional tax. Therefore, on a plain reading of the provisions under the OST Act as well as under the OET Act, a dealer is not entitled for reduction of the amount of entry tax from the amount of tax payable before the levy of surcharge under Section 5A of the OST Act. A harmonious 34 Page 34 reading of Rule 18 of the Rules as well as Sections 4, 5, 5-A of the OST Act reveals no conflict or inconsistency. The Rules are to be construed to have been made for furtherance of the

of bringing inconsistencies. 21) Section 5A of the OST Act is a self-contained provision and the surcharge, as already seen above, is leviable at the specified per centum of tax payable under the OST Act. Tax payable under the OST Act is independent of the provisions of OET Act. The assessment or quantification or computation of surcharge shall have to be made in accordance with the provisions of the OST Act. 22) Thus, on a conjoint reading of Section 5 of the OST Act, JUDGMENT Section 4 of the OET Act and Rule 18 of the Rules, we are of the considered opinion that the amount of surcharge under Section 5A of the OST Act is to be levied before deducting the amount of entry tax paid by a dealer. 23) In view of the forgoing discussion, the impugned judgment and order dated 05.01.2007 passed by the High 35 Page 35 Court cannot be sustained and is liable to be set aside. In the result, all the appeals are allowed; however, the parties shall bear their own cost. ...…………….………………………J. (SHIVA KIRTI SINGH) . …....…………………………………J. (R.K. AGRAWAL) NEW DELHI; OCTOBER 28, 2016. JUDGMENT 36 Page 36