SHIV DAYAL SHRIVASTAVA

UNION OF INDIA

February 7, 1984

[S. MURTAZA FAz, L ALI, A. VARADARAJAN AND

RANOANATH MISRA, JJ.]

High Court Judges (Conditions of Service) Act, J9S4-S•. 5 (3) and 9 (I) read with Rule 20B of All India Services (Leave) Rules J9SS-Interpretatlon of.

For calculating cash 'equivalent of leave salary admissible to a Judge under Rule 208, Ss. 5 (3) and 9 (1) of the Act would not apply.

In Union of lndid v. Gurnam Singh [1982] 3 S.C.R. 7c0, this. Court decided that under the High Court Judges (Conditions of Service) Act, 1954 Judges were entitled to cash equivalent of leave salary in respect of the period or earned leave at their credit on the date of retirement' as provided under rule ZOB of the AlJ India Service (Leave) Rules, 1955. The two question which arose for consideration in this pe!ilion under Art. 32 filed by a retired Chief Justice of Madhya Pradesh High Court were (I) whether in view oftbe provisions of s. 5(3) of tho Act, the limit has to be confined to five months equal to 150 days and not 180 days as in Rule 20B ; and (2) whether for calculating the equivalent of leave salary admissible to a Judge the provisions of s. 9 (I) of the Act would apply? . .

Allowing the petition and answering the questioris in he negative.

HBLD : Tho ratio of Gurnam Slngh's case has not been disputed.

It would necessarily mean acceptance of the position that the Act did not make provision for payment of the retirement beriefit contemplated under rule 20B ; otherwise rule 20B could not have been applied. For calculating the benefits under rule 20B, s. S (3) of the A<"t is not not relevant and in case in the leave account maintained nder s. 4 of the Act leave is due1 the benefit under rule 20B has to be worked out subject to the upper limit of 180 days, equal to six months [857 B-C]

 Once it is held that the benefit under rule 20B is not controtied by Chapter II of the Act, the, manner of calculatipn indicated in s. 9 (I) of the Act would also not apply. [857 ll]

Tho pric!ples governing the cash equivalent of leave would apply not

ony to the petitioner but also to Judges who have already retired or who may retue hereafter, from the date from which this -facility was made aVaitable to the members of the Central Services holding therank of Secretary to the

Govornmnt of India or its equivalent. [857 E-G)

, c

SUPREME COURT REPORTS [1984] 2 s.c.R.

ORIGINAL JURISDICTION : Writ Petition No. 8991 of 1983.

(Under Article 32 of the Constitution of India.)

Petitioner in person alongwith Mukul mudgal

K. Parasraµ, Attorney General, K.G. Bhagat Addi. Solicitor General, R.N. Poddar for the Respondent.

The Judgment Of the Court was delivered by

RANGANATH MISRA, J.

Shri Shiv Dayal Shrivastava, the petitioner before us in this application under Article 32 of the Constitution praying for a writ of mandamus to the Union of India, retired as Chief Justice of the Madhya Pradesh High Court with effect from February 28, 1978.

At the time of retirement he was drawing salary of Rs. 4,000 per month as provided under Constitution. This Court in the case of Union of India v. Gurnam Singh('> decided that under the High Court Judges (Conditions of Service)

' Act; 1954 ('Act' for short), Judges were entitled to cash equivalent of leave salary in respect of the period of earned leave at their credit on the date of retirement as provided in Rule 20B of the All India Services (Leave) Rules, 1955 ('Leave Rules' for short). The Accountant General of Madhya Pradesh authorised-the petitioner to draw cash equivalent of leave salary amounting to Rs. 15,240 by his communication dated July 17, 1982. The peti_tioner informed the Accountant General that he was drawing the amount as indicated in the communication without prejudice to his . right to claim ]ls: 24,000 to which sum under the law he was entitled.

On July 19, 1982, the petitioner was authorised to draw a further sum of Rs. 750 thus in all Rs. 15;990 only. On February 2, 1983, the Union of India in the Ministry of Law, Justice & Company Affairs indicated to the several authorities including the Registrars of all the High Courts that while in view of the decision of this Court referred to above, the Central Government were advised that Judges of the High Courts were entitled to payment of cash equivalent of leave salary in respect of the period of earned leave at their credit,

the expression 'earned leave' does not occur in the Act. On the analogy of the Leave Rules the cash equivalent of leave salary to be paid would be the cash equivalent of the unutilised leave due on

a · Ol [19821 3 s.e-R. 'oo,

~-·-

full allowances as defined in ss. 3 and 9 (I) of the Act. In making calculations of the cash equivalent of the leave salary the ceiling of five months mentioned in s. 5. (3) of the Act would be applicable.

Relving on the aforesaid letter of the Central Government, the Accountant General of Madhya Pradesh on March 25, 1983, mtimated the. petitioner that he \Vas entitled to payment of cash equivalent of unutilised earned leave subject to the celling of five months; leave and, therefore, he had been paid an excess sum of Rs:' 2,220

w!iich should be refunded. That has led the petitioner to move this Court.

Rule nisi was issued to the Union of India and this Court

directed separate notice to the Attorney-General. A return .bas

C been made to the rule by the Union of India. No dispute has been raiseg to payability of the cash equivalent on the basis of Rule 20B of the Leave Rules. Reliance has been placed.on the provisions of the Act to justify the circular letter of February 18, 1983. Learned Attorney-Gerieral has been heard and he has furnished written submissions also.

The decision of this Court in Gurnam Singh's case has been

-~ accepted by the Union of India and steps have been taken to implement the same. In that case this Court held :

" ... it must be regarded as a provision absorbed by rule 2 of the High Court Judges Rules, 1956, into !lie statutory structure defining the conditions of service of a Judge of a High Court. We may observe that even as a right to receive pension, although accruing on retirement, js a condition of service, so also the right to the payment of the cash equivalent of leave salary for the period of unutilised leave accruing on the date of retirement must be considered as a condttion of service" ..

Two questions require decision, viz., (I) whether in view of

the provisions of s. 5 (3) of the Act, the limit has to be confined to.

G five months equal to 150 days and not 180 days as in Rule 20B; ahd

(2) whether for calculating the equivalent of leave salary admissible to a Judge the provision.s of s. 9 (I) of the Act would apply?

We may now refer to rule 20B of the Leave Rules as also to the two provisions of the Act : ff

SUPREME COURT REPOFTS

(1984] 2 S.C.R

"20B-Payment of cash equivalent of leave salary-The Government shall suo motu sanction to a member of the service who retires from the service under subrule (1) of rule 16 of the All India Services (DeathcumRetirement Benefits) Rules, 1958, having attained the age of 58 years on or after the 30th September, 1977 the cash equivalent of leave salary in respect of the period of earned leave at his credit on the date ef his retirement subject to a maximum of 180 days."

Section 5 (3) of the Act reads :

C "5 (3). Subject to the provisions of sub-section (2) of s. SA, the maximum period of leave which may be granted at one time shall be, in the case of leave'on fulllallowances, five months and in the case of leave with allowances of any kind, sixteen nionths."

D Section 9 (1) provides :

"9 (1). The monthly rate of leave allowances payable to a Judge while on leave on full allowances shall be for the first forty five days of such leave, a rate equal to the monthly rate of his salary, and thereafter two thousand two hundred and twenty rupees.

Provided that where leave on full allowances is granted to a Judge on medical certificate the monthly rate of leave allowances shall, for the first one hundred and twenty days, of such leave, be a rate equal to the monthly rate of his salary."

Chapter II of the Act deals with leave. Section 3 pro_vides the kinds of leave admissible to a Judge. . Section 4 makes provision for a leave account to be maintained. Section 5 deals with aggregate amount of leave which may be granted; Section SA makes provision for commutation of leave on half allowances into leave on full allowances while sections 6, 7 and 8 deal with grant of leave of specific kinds. . These provisions in the Act deal with leave which has to be asked for and taken during the tenure of working as a Judge. Leave necassarily implies authorised absence from duty or employment (see Webster's Third New International Dictionary).

Rule 20B makes provision for payment of <; ash equiva1ent of leave

due under the appropriate provisions but subject to a maximum of 180 days. We have already indicated that the ratio of Gurnam Singh's case has not been disputed. It would necessarily mean acceptance of the position that the Act did not make provision for payment of the retirement benefit contemplated. under rule 20B;

otherwise rule 20B could not have been applied. The scheme in rule 20B is that the payment would be made suo motu and without any application for it.

Leave referred to under the AC! is one which has to be asked for and is i.ntended to meet a different situation.

For calculating the benefits under rule 20B, s. 5 (3) of the Act is not relevant and in case. in the leave account maintained under s. 4 of Act leave is due, the benefit under rule 20B has to be worked out subject to the upper limit of 180 days, equal to six months.. lfhe claim made by the petitioner that he was entitled to the benefit of six months is, therefore, justified subject, of course, to admissibility of leave to the extent of 180 days in the leave account. No dispute was raised before us that as a fact petitioner had to his credit more than 180 days of leave.

Once we hold that the benefit under rule 20B is not controlled by Chapter II of the Act, the manner of calculation indicated in s. 9 (1) of the Act would also apply. The petitioner would thus become entitled to cash equivalent of six months' salary which would work out at Rs. 24,000. As he has been paid a sum of Rs. 15,990 he is entitled to Rs. 8,010. A .writ in the nature. of mandamus be issued to the Union of India to pay him the said amount within one month from today.

Parties are left to bear their own costs before us.

We would like to add that it is manifest that in view of the enunciation of law by us in th's judgment, the principles governing the cash equivalent of leave would apply not only to the petitioner but also to Judg"s who have already retired or who may 'retire hereafter, from the date from which this facility was made available to the members of the Central Services holding the rank of Secretary to the Government of India or its .equivalent.

H.S.K.

Petition allowed.

SHIV DAYAL SHRIVASTAVA

UNION OF INDIA

February 7, 1984

L ALI

A. VARADARAJAN

RANOANATH MISRA, JJ.

Ss. 5

[1982] 3 S.C.R. 7

Art. 32

Madhya Pradesh High Court

s. 5(3)

s. 9

Gurnam Slngh

s. 4

Chapter II of the Act

s. 9

Article 32

Constitution of India

Mukul mudgal

K. Parasraµ

K.G. Bhagat Addi

R.N. Poddar

RANGANATH MISRA

Shiv Dayal Shrivastava

Article 32

July 19, 1982

February 2, 1983

Union of India

Central Government

On the analogy of the Leave Rules

ss. 3 and 9

s. 5

March 25, 1983

February 18, 1983

Gerieral

Gurnam Singh

The decision of this Court in Gurnam Singh's case has been
~ accepted by the Union of India and steps have been taken to implement the same.

High Court Judges Rules, 1956

s. 5

s. 9

Section 5

Section 9

Chapter II of the Act

Section 3

Section 4

Section 5

sections 6, 7 and 8

s. 5

s. 4

Chapter II of the Act

s. 9

Government of India


KHAZAN CHAND ETC.

STATE OF JAMMU AND KASHMIR AND OTHERS

[P. N: BHAGWATi AND D. P. MADON, JJ.]

' Constitution of India 1950, Articles )4 and 265.

Jainmu and Kashmir General Sales Tax Act 1962 Sectlon 8 (1), (2) and (J)-Wherher valid and constitutional.

Taxing Power of State-What is-Cotnprehends power to provide for" collectiati of tax and prescribe methods for recovery.

' Jammu and Kashmir General Sales Tax Act 1962-Section 8 Sales Tax' -Payment of-After prescribed perlod-Cha,.ging of interest on sales tax- Whether valid and legal.

Section 8 (2)-tax paid beyond prescribed period-Interest charged at ; I graduated scale-Permissibility of-.Whether vfolatire of Article 14.

Section 8 (.3)-Goods sold on credit basis-Liability to payment of sal<'S E tax by dealer-Whether arises.

The :; ippeltants and the petitioners were assessees registered as dealers under the Jammu and Kashmir General Sales Tax Act, 1962.

They filed their quarterly rCturos within the time prescribed by the Act but without paying the tax due according to suh returns.

Some or them also filed revised fturns thereafter.

The 1ax d1Je was paid by the asscssees after several months and in some cases by instahnents.

In a few cases. 1hc full amount of tax was not paid even by the date l he assessment orders came to be made.

In the case of most of the Assessees the Assessing Authority levied penalty under sub-section ( 2) of section 8 of the Act before making any asessment. lo other cases, orders requiring interest to be paid were made along with the assessment orders.

The assessees who Were appellants in this_ Court, bad filed writ Petitions in the High Court challenging the validity of section 8 of the Act under which interest was sought to be recovered aS also the demand for payment of interest.

The High Court dismissed the Writ Petitions.

In the Appeals and Writ Petitions to this Court the assessees were :

(a) dealers who bad filed their rel urns but had not deposited the full amount of tax due according to such returns, and the Assessing

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KHAZAN CHAND v. J, & K. STATE 859

Authority, having accepted the returns, had issu.ed a composite notice of demand calling up them to pay the amount of tax along wiih interest due on it,

(b) dealers who had filed their returns but had paid the tax due according -to such returns after the expiry of the prescribed time and in whose cases the Assessing Authori! y had accepted the returns and had isSued a notice of demand asking them to pay interest on the amount of tax fof the period for which such payment was delayed, and '

(c) dealers who had filed their returns but had not paid the amount of ta:ill due according to such returns by the prescribed time but bad paid it later and notices were issued against them calliOg upon them to pay interest for the p'C:riod of default before making aay order of assessme.nt.

It was contended on their behalf that;

(1) The charging of interest from the assessees was violative of Article 265 of the Constitution as there was no legislative power in the State Legislature to make a law providing for payment of interest if the amount .of tax was not paid by the prescribed

time, and, for this reason, the provisions of section 8 or the Act in so far as they provide for payment of such interest are beyond .the legislative competence of the State Legislature and, therefore

(2)

(3)

(4)

(5)

unconstitutional. '

Sub-section (2) of section 8 of the Act was void as infringing Article 14 of the Constitution becaUse its provisions are discriminatory, arbitrary and unreasonable •

The Assessees carried on business on credit basis and as by the dates when they filed their quarterly retuins their customers had not pa id to them the price of goods sold to them, the Assessees were not bound to pay tax .along with their returns but were bound_ to pay tax in respect of these transactions of sales only when the amount of sale price was received by them from their customers.

In some cases, the amount of interest claimed frQm the Assessees exceeded the amount of tax paid by them and, therefore, the demand for such excess amount of interest was bad in Jaw.

The Assessees were not liable to pay interest on the amount of tax not paid in time without a notice of demand for payment of tax being first issued.

(6) Interest was levied by the Assessing Authority for the entire 11

Mo [1984] 2 s.c.R.

period of default at the maximum rate prescribed by sub-section

(2) of section 8 which was contrary to the provisions of that subsection.

HELD: The constitutionality of sub.section (1), (2) and (3) of section 8 of the Jammu and Kashmir General Sales Tax.Act 1962 upheld.

The State however restrained from recovering' from the Assessees. interest on the amount of quarterly tax paid after the expiry of the date prescribed for payment by sub.section (3) of section 8 of the Act at a rate other than the rate of one per cent per month for the. first three months of default and at the rate of two per cent per month for the next three months of default and at the rate of three per cent for the period of def au It exceeding six months. [881 G-H; 8821\]

1. Ci) The Constitution af India, does not apply in its entirety to the State of Jammu and Kashmir because that State holds a special position in the Constitutional set up of the country~ Article 3 70 makes special .Provisions with respect to the State of Jammu and Kashmir.

Under sub-clause

(c) of clause (I) of Article 370 the provisions of Articles I and 370 apply in relation to the State of Jammu and Kashmir and under sub-clause (d) of clause (I) of Article 370 such of the other provisions of the Constitution apply in relation to that State subject to such exceptio11; s and modifications as the President may specify by an order issued with the concurrence of the Government of the State.

In exercise of the power conferred by clause (1) of Article 370 the President of India, with the concurrence of the Government of the State of Jammu and Kashmir, has made the Constitution (App 1ication to Jammu and Kashmir) Order, 1954 (C. 0. 48) which was amended from time to time.

The proviitions of the Constitution of India as in force on June 20. 1964. and as amended by the Constitution Amendment Acts set out in clause (2) of that Order apply in relation to the -State of Jammu and Kashmir subject to the exceptions and modific.itions set out in the said clause.

By sub-clause (6) (a) of clause (1) of the said Presidential Order, Clause (I) of Article 246 of the Constitution of India was made applicable to the State of Jammu and Kashmir with certain modifications, while clause

(3) of Article 246 was not made applicable to the State.

Sub.clause (22) of clause 2 of the said Presidential Order applies List I in the Seventh Sche-. dole to the State of Jammu and Kashmir with the omissions a"nd modifications mentioned in the said sub-clause.

Entries 92 and 92A of List I apply to the State of Jammu and Kashmir in an unmodified form.

By the same sub-clause, List II ill the Seventh Schedule, natllely, the State List, does not apply to the State of Jammu and Kas.hmir. [870G-H; 871AB]

(ii) Thus under section S of the Constitution of Jammu aod Kashmir the e1:ecutivc and legislative poer of the State extends to al1 maters with respect to which Parliament bas power_ to make laws for the State under the provisions of the Constitution of India under the Constitutional provisions applicable to the State of Jammu and Kashmir, the power of the State Legislature to enact a law relating to taxes on intra-State sale or purchase of goods is thC same as that of the Legislatures of other States in. India.

By sub-clause (7) of clause 2 of the said Order, Article 265 is made applicable to tho State of Jammu and Kashmir.

Section 114 of the Constitution of

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} \

...

KHAZAN CilAND v. 1. & IC, STATB 861

Jammu and Kashmir is in terms identical with Article 265 of the Constitution of India which provides. that ''No tax shall be levied or collected except by authority of law." [871BD)

(iii) The power to make a law with r.espect to tax comprehends with in it the power to levy that tax and to determine the persons who are liable to pay such tax, the rates at which such tax is to be paid and the event which will attract liability in respect of such tax.

This is done by the charging sections of the particu.Jar tax law.

The taxing power of the state will also comprehend within it the power to provide for quantification of the Jiability of persons made liable to pay the tax.

This is done by the provisions relating to assessment.

The taxing power will also comprehend within it the power to provide for col1ection of tax including prescribing the methods of recovery of the amount of tax due if the person liable to pay the tax does not voluntarily pay it.

The power to make a law with respect to a tax includes not only what bas been set out above but also a power to make provisions in the relevant statute with r<'spect to all matters ancillary and incidental 'to the levy, assessment, collection and recovery of tax. Callee

ion of tax by the State may be either after be "liability is quantified by assessment or may be prior to actual assessment by requiring the assessee to pay before any assessment -is made the amount of taX admitted to be dtie and payable by him. [872B-E]

Whitney v. Commissioners of Inland Revenue, L.R. 1926 A.C. 37, 51 H. L. 10 T. C. 79, 110; Chalturam and others v. Commissioner of Income Tax, Bihar (1947) F.C.R. 116, 126; (1947) 15 I.T.R 302, 308; Messrs Chatturam Hori/ram Lrd. v. Commissioner of Income TaX, Bthar and Orlssa, [1955] 2 s.c.R. 280, 297·8; (1955) 27 l.T.R. 708, 715·6 referred to.

(iv) One of the methods of collection of revenue adopted by the Act, is to require that tax due according to the quarterly returns should. be paid before filing such returns and it was within the legislative competence of the Legislature of the State of Jammu and Kashmir to provide for recovery of the amount of tax due under quarterly returns if default is made in paying such amount by tho prescribed time. [872H; 873A)

(v) Payment of interest in case of default in payment of tax is a means of compelling an assessee to pay the tax due by theprescribed date.

It is a mode of recovery of taK and well within the legislative power of the State. [873C]

2. (i) Inter~State trade and commerce is a matter which affects all the States in _India and thus the whole country.

It is for this reason that in the Seventh Schedule to the Constitution the subject of taxes on the sale Or purchase of goods taking place in the course ol inter-State trade or commerce bas been put in List I and made a Unioasubject.

Taxes on the sale or purchase of goods taking place within the State affect only those who carry on the business of buying and selling goods within the State and, therefore, this subject haS been pu_t in List II of Seventh Schedule, namely tho State List. [874C-D]

. E

SUPREME COURT REPORTS

(1984) 2 S.C.R.

(ii) Sales tax is the biggest source of revenue for a State and it is for the State to decide how and in what manner it will raise this revenue and to determine which particular transactions of sale or purchase of goods taking place within that Sta-te should be taxed and at what rates. and which particular transactions of sale or purchase of goods should be eiempted from. tax or taxed at a lower rate having regarj to the subject-n1:i.tter of sale, as for instance, Where particular goods constitute necessities for the poorer c!,1sses of people orwhere the goods in question are of .such a nature as are required to be exempled from.tax or taxed at a lowerrate_in order to encourage a local industry.

Consideration of these matters must, therefore, differ from State to State.

Similarly it is for the each State to detern1inc the methods -it will adopt to collect its revenue from this source and to decide which rr1ctbods would be most efficacious for this purpose. If the provisions of tbc legislation of every State on a particular topic are to be identic,!l in every respect, there is no purpose in including that topic in the S'tate List and it may as well be included in the Union List.

Merely because the provisions of :, State Jaw differ from the provisions of other State laws on the safi.1e subject cannot n1ake such provisions discriminatory. [874DG]

(iii) Jnterest is payable under subsection LZ) of section 8 on the amount of lax paid artcr the expiry of the prescribed date of p Yment.

The rate of two per cent per month and particul?rly the rate of three per cent per 1nonth can be said to be on the high side, but this would not reader the provisions of that sub-section void or unconstitutional.

Providing for payment of interest in case of delaed payment of tax is a method usually adopted in fiscal legislation to ensure that the amount of tax which is due is paid by the prescribed time and provisions in that behalf form part of the recovery machinery provided in a taxing statute.

It is for the State to provide by what means payment of tax is to be enforced and a person who . does not pay the amount of tax lawfully and admittedly due by him can hardly complain of the measures adopted by the State to compel him to pay such amount. [875AC]

(iv) Under the Act, the same rates of interest apply both to the dealer who has made default in payment of tax due by him and to the State Government in case )f default made by it in making payment of the amount of tax or penalty which has become refundable as a result of an appellate or rovisional :order.

The graduated rate of interest provided by sub-section (2) of section 8 cannot, therefore, be characterised as arbitrary or unreasonable.

[875F-G]

3. (i) Under the Act, the liability to pay sales tax is cast upon the dealer.

This is made clear by sections 4,6, and clauses (G), (L) (1), (L) (II}, and (n) of section 2.

It -is imn1aterial whether the price of goods has been paid to the dealer or is payable to him.

The fact that a dealer has sold goods on credit is, therefore, wholly immaterial.

Tbis liability is irrespective of tho fact whether the dealer has ffi[lde profit or loss in bis business and Whether he has received the sale price or not. [876H; 877A-B]

(ii) Section 64A of the Sale of Goods Act, 1930 does not deal with the liability of the seller to pay sales tax to the Goveroment. [878E]

KHAZAN CHAND v. 1. & K. STATB 863

In tho instant caseJ the Assessees were bound to pay .the tax . due according to 1 he quarterly returns filed by them before filing such returns and the fact that their customers bad not paid to them the sale price did not exempt them from their statutory liability. [8780)

The recovery prov_isions of the Act are meant for speedy a_nd prompt collection of revenue.

These provisions are not meant for the benefit of defaulting tax-paye1 sand Sltb defaulters cannot claim that the amoual of interest payable by them on delayed tax payment should be scaled down as if they were .entitled to claim relief under a debtrelief law.

[879B-C]

Under subsection 8 (1) the tax assessed o.r any other amount demanded iS to be paid within the time specified in the notice ofdemarld.

Under sub-seceion ( 3), the quarterly tax is to be paid betore ftirnishing -the quarterly return but not later than the date prescribed under sub-section (2) of section 7.

Accordingly, the requirement of sub-section (2) of section 8 that int.!f6St will be chargeable from the date specified for paym_ent in the notice of demand cannot be applied to the payment of quarterly tax and necessary alterations as required by sub-section (8) o section 8 will, therefore have to be made in the provisions of sub--section (2) in their application to a default made in _Qayment of quarterly tax and .sub-section (2) must be read as providing.that interest under sub-section (2) will become payable fronl the date prescribed by sub-section (3) of section s'ror payment of quarterly tax. [880B-F)

Messrs Royal Boot House etc. v. State of Jammu and -Kashmir and others. C.M.P. Nos. 32413 and 32.414 of 1983 decided on January 6, 1984

by P. N. Bhagvati, A; g. C. J. and Venkataramiah and Varadarajaa; JJ.

E referred to.

Sub-section (2) of.section 8 of the Act provides for different rates of interest depending upon the length of the period of default. [881D)

In the instant oases, int eresLon the amount of. quarterly tax not paid , in time has been imposed at a uniform rate for the full period of default and not according to the scale of rates prescribed by sub-section (2) of section 8.

[88 IB]

ORiGINAL JURISDICTION : Writ Petition Nos: 12695, 13478-82, 13352 of 1983, 99·100, 133-34, 231, 234-36 of 1984. ·

[Under article 32 of the Constitution of India]

Civil Appeals Nos. 322·351 of 1984

Appeals by Special leave from the Judgment and Order dated the 24th June, 1983, 19th August, 1983, !st September, 1983, & 29th December, 1983 of the Jammu and Kashmir High Court in Writ

Petition Nos. 430 & 886/82, 364/81, 478/81, 132/82, 338/80; 525/80, 485/80, 67/83, 404/82, 681/82, 679/81, 688/82, 472/81, 678/82,

S64 StJPRBMB CoURT REORTS

(1984) 2 S.C.R.

230/81, 229/83,. 476/81, 228/83, 471/80, 287/83, 682/82, 344/82 621/82, 302/80, 624/80, 46/83, 912/83, 558/82 and 623/83.

K. K. Venugopal and Anll Dev Singh Salish Vig, S. P. Sharma, L. K. Gupta, Vimal Dave, R. C. Kaushik and Subhash Sharma for the Petitioners/ Appellants.

Altaf Ahmed for the Respondents.

The Judgment of the Court was delivered by

MADON, J. This group of Writ Petitions and Appeals by Special Leave challenges the constitutional validity of sub-sections (!), (2) and (3) of section 8 of the Jammu and Kashmir General Sales Tax Act, 1962 (J & K Act XX of !962) and seeks to quash the orders directing the Petitioners and Appellants before us (hereinafter for the sake of brevity referred to as "the Assessees") to pay interest on the amount of tax due according to the quarterly returns filed by them but not paid within the prescribed time.

All the Assessees are registered as dealers under the Jammu and Kashmir General Sales Tax Act, 1962 (hereinafter referred to as "The Act"). Sub-section (1) of section 7 of the Act requirse every. dealer liable to pay tax under the Act to furnish in the prescribed form a return of his turnover for a year within 120 days from the expiry of that year. Sub-section (2) of section 7 provides as follows :

"Without prejudice to the provisions of sub.section (1), every dealer shall also furnish in the prescribed form quarterly returns for each quarter of the year within thirty days from the expiry of that quarter. Every such return shall be accompanied by a Treasury Receipt or any other proof of having paid the tax due on that return."

Thus, the tax due according to a quarterly return is to be paid by the dealer before filing suoh return and proof of payment of the tax so due is to accompany such return. Sub-sections (I), (2), (3),

(7) and (8) of section ~. omitting what is not relevant for our purpose, provide as follows:

"(!) The tax assessed, or any other amount demanded, under this Act shall be paid in such manner and within

ll.-..

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.<c

KHAZAN CHAND f, 1. & K. STATE (Madon, J.) 865

such time not being less than fifteen days from the date of the notice of demand. as may be specified in the notice. Jn default of such payment the whole of the amount then remaining due shall become recoverable in accordanc with sections 16 and 16A.

x x x x x x

(2) If the tax or any o_ther amount due under this Act is not paid by the dealer or any other person, by whom it is payable, within the period specified in demand notice, the dealer or such other person shall be liable to pay interest on the tax or other amount from the date it was pay- . able to the date of actual payment at.the following rates-

(a) Ifthedefault is for a period of not exceeding three months at 1 % per month;

(b) If the default is for a period exceeding three months but less than six months at 2 per month;

(c) If the default is for a period exceeding six months at 3% per month:

Provided that where, as a result of :an order under Sections I 1, 12, 24 or an order of the Conrt, the amount of tax or other sum on which interest was payable under this sub-section has been reduced, the interest shall be reduced accordingly and excess interest paid, if any, shall be refunded.

Explanation-Interest shall be charged. for full month and not for a part of the month.

(3) Quarterly tax shall be paid before furnishing a quarterly return but not later than the date prescribed under

sub-section (2) of Section 7.

G x x x x x

 (7) Where a dealer fnrnishes a revised return under sub-section (4) of Section 7 and the tax payable is more than the tax paid on the basis of original retJrn, he shall pay the extra tax payable before furnishing the revised return: H

SUPREME COURT REP OR TS

(1984] 2 S.C.R.

Provided that if the tax already paid is in excess of the tax payable, such excess am )Unt shall be treated to have been paid towards the tax payable for the quarter next following the date of fuanishing such revised return.

B (8)-Notwithstanding anything contained in this Act,

if a dealer fails to pay the tax payable under this Section, the provisions of sub-section (2) of this Section, Section

16 and Section 16-A shall apply mutatis mutandis to the recovery thereof.

Explanation (!)-Quarterly Tax means the tax . payable on the basis of a quarterly return required to be furnished by subsection (2) of Section 7.

Explanation (2)-lnterest under sub section (2) of this Section on the extra tax payable on the basis of revised return shall be payable from the date next following the date on which the tax was payable on the basis of original returri."

The Assessees filed their quarterly returns within the time prescrsbed by the Act but without payfog the tax due according to such returns. Some of them also filed revised returns ther_eafter.

The tax due was p1id by the Assessees after several months and in some cases by instalments. In a few cases, the full amount of tax was not paid even by the date the assessment order in their cases came to be made. In the case of most of the Assessees, the Assessing Authority levied penalty under sub-section _(2) of section 8 of the Act before making, any assessment. In other cases, orders requiring interest to be paid were made along with the assessment orders.

It may be mentioned that in cases where the assessment orders were made, the returns filed by the Assessees were accepted as correct.

Those A1sessees who are Appellants. before us filed writ petitions in the Jammu and Kashmir High Court challenging the validity of section 8 of the Act under which interest was sought to be recovered from them as also the demand fdr payment of interest. These writ petitions were hea1d along with other writ petitions in which other questions arose. The High Court dismissed all these writ petitions but made no order as to tho costs thereof.

The petitioners before the High Court fell into four categories, fl namely-

( -· --

~··

KHAZAN CHAND v. J. & K; STATE (Madon, J.)

(1) Dealers who had neither fried their returns ncr deposi

ted the tax due from them and the Assessing Authority had determined the amount of tax payable by them and issued a composite no.lice of demand calling upon them to deposit the amount of tax along with interest due on it.·

(2) Dealers who had filed their returns but had not deposited the full amount of tax due according to such returns and the Assessing Authority, having accepted the returns, had issued a composite notice of demand calling upon them to pay the amount of tax along with interest due on it.

(3) Dealers who had filed their returns but had paid the tax due according to such returns after the expiry of the prescribed time and in whose cases the Asessing Authority had accepted" the returns and had issued a notice 'or demand asking them to pay interest on the amount of tax for the period for which such payment was delayed.

(4) Dealers who had filed their returns and had paid the tax due according to such returns by the preacribed. time but the Assessing Authority had not accepted the returns and had .enhanced the amount of tax payable by these dealers and had issued a composite notice of demand calling upon them to pay the amount of tax so enhanced along with interest on it.

We are concerned in these Petit10ns and Appeals only with dealers who fall tinder categories (2) and ( l) above as also with those dealers who had filed their returns but had not paid the. !!mount of tax due according to such returns by the prescribed time but had paid it later and notices were issued against them calling upon them to pay interest for the period of default before making any order of assessment, We are not concerned in these Petitions and Appeals with those dealers who fall under categories (I) and (4) above.

At the hearing. of these Petitions and Appeals, no arguments whatever were advanced before us in support of the contention that subsec, tion (l) of section 8 was unconstitutional and the challen!le

SUPRBMB COURT REPORTS (1984] 2 s.c.R.

to that sub-section must, therefore, fail.

The only contentions which were urged at the hearing were as follows:

(I) The charging of interest to the Asssssees is violative of Article 265 of the Constitution of India as there was no legislative power in the State Legislature to make a law providing for payment of interest if the amount of tax was not paid by the prescribed time and, for this reason, the provisions of section 8 of the Act in so far as they provide for payment of such interest are beyond the legislative competence of the State Legislature and, therefore, unconstitutional.

(2) Sub-section (2) of section 8 of the Act is void as infringing Article 14 of the Constitution bcause its provi sions are discriminatory, arbitrary and unreasonable

(3) The Assessees carried on business on credit basis and as by the dates when they filed their qnarterly returns their customers had not paid. to them the price of goods sold to them, the Assessees were not bound to pay tax .along with their returns but were bonnd to pay tax in respect of those transactions of sale only when the amount of sale price was received by them from their customers.

(4) Jn some cases, the amount of interest claimed from the Assessees exceeded the amount of tax paid by them and, therefore, the demand for sueh excess amount of interest was bad in law.

(5) The Assessees were not liable to pay any interest on

 the amount of tax not paid in time without a notice of • demand for payment of such amount of tax having been first issued to them.

(6) Interest was levied by the Assessing Authority for the entire period of default at the maximum rate prescribed by sub-section (2) of section 8 which was contrary to the provisions of that sub-section.

We will first examine the correctness of the contention that the impugned provisions of section 8 of the Act are violative of Article p 265 of the Constitutio'l of India. Article 265 of the Cof\stitutjon

KHAZAN CHAND v. }, & K. STATE (Madon, J.) 369

provides that "No tax shall be levied or collected 'except by autho. rity of law." Thus, Article 265 postulates that before any tax can be. levied and collected there must be a valid law enacted by an approp.riate legislature imposing such tax and providing for its collection. The submission on behalf of the Assessees was that under the Constitution the Legislature of the State of Jammu and Kashmir has no legislative power to provide for payment of interest in case of late payment of tax. It was not the contention of the Assessees, as indeed it could not be, that the Legislature of the State of Jammu and Kashmir had no legislative power to enact a law levying a tax on the sale or purchase of good1 taking place

within the State and making provisions for the collection of such tax, because the constitutional position in this behalf is clear and indisputabfo. Under claus' (I) of Article 246 of the Constitution of India, Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution referred to as the "Union List" and under clause

(3) of the same Article the Legislature of any State has exclusive power to make laws for such Slate or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule to the Constitution referred to as the "State List". Taxes on the sale or purchase of newspapers and on a1verti rements published therein fall under Entry .92 of the Union List and taxes on the sale or purchase of goods, other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce fall under Entry 92A of the Union List, while taxes on the sale or purchase of goods, other than newspapers, subject to the provisions of Entry 92A of List I, fall under Entry 54 of the State List. Thus, so far as sales tax is concerned, the Constitution bifurcates the legislative field of taxation between the Union and the States. As a result of this bifurcation, the subject of taxes on intraState sale or purchase of goods (other than newspapers) falls exclusively within the State power of taxation. The Constitution of India, however, dbes not apply in its entirety to the State of Jammu and Kashmir because that State holds a special position i11 the constitutional set up of our country. Article 370 of the Constitution of India makes special provisions with respeci to the State of Jammu and T<ashmir.

Under sub-clause (c) of clause (I) of Article 370 the provisions of Articles I and 370 apply in relation to the State of Jammu and Kashmir and under subclause (d) of clause (I) of Article 370 such of the other provisions of the Constitution apply in relation to that State subject to such exceptions and modifications as the President may specify by an order iss11ed with the concurrence of the Govern-

870 SUPllEME COUil T REPORTS

\ J 984] 2 S.C.R.

ment of that State.· Thus, by reason of the application of Article 1 t() the State of Jammu and Kashmir by sub-clause (c) of clause (I) Qf Article 370 the State of Jammu and Kashmir is one of the States which. form the Union of India and by virtue .of sub-clause (d) of clause (I) of that Article so far as the provisions of the Constitution, other thanthose of Articles I and 370, are concerned, the President of India' has the power, with the concurrrnce of the Government of the State of Jammu and Kashmir, to issue an order specifying which of them. shall apply to that State and whether such provisions shall apply in their entirety or subject to such exceptions and modifications as may be specified in that order.

Article 370 also envisages the convening of a Constituent Assembly for that State and the framing of a separate Constitution for it. In exercise <if the power

corifered by clause (I) of Article 370 the President of India, with the concurrence of the Government of the State of Jammu and Kashmir', has made the Constitution (Application to Jammu. and Kashmir) Order, 1954 (C. 0. 48). This order deals with the entire constitutional position of the State of Jammu and Kashmir within the framework of the Constitution of India, except only the internal Constitution of the State Government to be framed by the Constituent Assembly of that State. The Constituent Assembly of the State of Jammu and Kashmir framed its own Constitution repealing and replacing its earlier Constitution. This new Constitution, called the •; constitution of Jammu and Kashmir", was adopted and enacted by the Constituent Assembly of that State on November 17, 1965.

By the Constitution (Application to Jammu and Kashmir) Order, 1954 CC. 0. 48), as amended from time to time, the provisions of the Constitution of India as in force on June 20, 1954, and as amended by the Constitution Amendment Acts set out in clause (2) of that Order apply in relation to the State of Jammu and Kashmir' subject to the exceptions and modifications set out in the said clause.

By sub-clause (6) (a) of clause (2) of the said Presidential Order, clause (1) of Article 246 of the Constitution of India is made applicable to the State of Jammu and Kashmir with certain modifications with which we are not concerned, while clause (3J of Article 246 is not made applicable to that State. Sub-clause (22J of clause 2 of the sa; d Presidential Order applies Lisi I in the Seventh Schedule to the State of Jammu and Kashmir with the omissions and modifications mentioned in the said sub-clause.

These omissions. and modifications are, however, irrelevant for our purpose inasmuch as Entries 95 and 92A of List I apply to tbe State of Jammu and

....

KHAZAN CHAND v. ], & K. STATE (Madon, J.) 871

Kashmir in an unmodified form. By the same sub-clause, .List II in the Seventh Schedule, namely, the State List, does not apply to the State of Jammu and K.ashmir: Section 5 of the Constitution of Jammu anc!· Kashmir, however, provides as follows:· l .

"5, Extent of executive and legisiative. power of the State.-The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India."

Thus, under the constitutional provisions applicable to the State of Jammu and Kashmir, the 'power of the State Legislature to enact a law relating to taxes on intra-State sale or purchase of goods is the . same as that of the Legislatures of other States in India. By subclausc (7) of clause 2 of the _said Order, Article 265 is made applicable to the State of Jammu and Kashmir. Furthe1, section 114 of the Constitution of Jammu and Kashmir is in terms identical with Article 165 of the Constitution of India and equally provides that "No tax shall b_e levied o:- collected except by authority of law."

The question which-we, therefore, have to consider is "Whe ther in the exercise of its power to make a Ia.w with respect to taxes on the sale or purchase of goods taking place within the State, the Legislature of that State has the legislative competenee to provide for payment of interest on the amonnt of tax due according to the return filed by an assessee. but not paid within the prescribed time?"

As was pointed out by Lord Dunedin in Whitney v. Commissioner of Inland Revenue(1); a passage cited with approval by the Fede ral Court in Chatturam and others v. Commissioner of Income Tax, Bihar,(2) and by this Court in Messrs Chatturam Hori/ram Ltd. v.

Commissioner of Income Tax, Bihar and Orissa<' J:

"Now, there are three stages in the imposition of a tax: there is the declaration of liability, that is the part o( the statute which determines what persons in respect of what property are liable. Next, there is the assessment.

(I) L. R. (t926] A. C. 37, 51.H. L; 10 T. C. 79, 110. (2) [1947] F.'c. R. 116; 126; (1947) IS I. T. R. 302, 308.

(3) [1955)2 S. C.R. 290,-297·8; (1955) 27 I; T. R. 7081 715·6.

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Liability does not depend on assessment.

That, ex hypothesi, has already been fixed. But assessment particularises the exact snm which a person liable has to pay. Lastly, come the methods of recovery, if the person 1axed does not voluntarily pay."

It would follow from the above decisions that the power to make a law with respect to a tax comprehends within it the power to levy thlt tax and to determine the persons who are liable to pay such tax, the rates at which such tax is to be paid and the even __,.....__ which will attract liability in respect of such tax. This is done by r the charging sections of the particular tax law.

The taxing power. r of the State will also comprehend within it the power to provide for quantification of the liability of persons made liable to pay the tax. This is done by the provisioas relating to assessment. The taxing power will also comprehend within it the power to provide for collection of tax including prescribing the methods of recovery of the amount of tax due if the person liable to pay the tax does not. voluntarily pay it. The power to make a law with respect to a tax includes not only what has been set out above but also a power to make provisions in the relevant st1tute with respect to all matters ancillary and incidental to the levy, assessment; collection and reco very of tax. 'Collection of tax by the State may be either after the liability is quantified. by assessment or may be prior to '4ctual assessment by requiring the assessee to pay before any assessment is made the amount of tax admitted to be due and payable by him. This is done 'by making proviaions such as those for advance payment of tax and for self-assessment contained in the Income Tax Act, 1961.

This is also what sub-section (3) of section 8 of the Act does by requiring that the quarterly tax payable .on the basis of a quarterly return. required to. be furnished by sub-section (2) of section 7 _shall be paid before furnishing such return. This is a mode of collction of revenue in advance before quantification of the actual tax liability and the Legislature would be well within its right and would be competent to provide for recovery of such amount if it is not paid by the prescribed time. The Act, as its long title shows is "An Act to provide for the levy of a general tax on the sale or purchase of goods in the State and for other matters connected therewith" and one of the methods of collection of revenue adopted by it is to require that tax due according to the quarterly returns should be .

paid before filing such returns and it was within the legislative competence of the Legislature of the State of Jam mu and Kashmir to provide for recovery of the amount of tax dµe under quarterly

~·-

KllAZAN CHAND v. 1. & K. STATE (Madon, J.) 873

return• if default is made in paying such amount by the prescribed time. This has been done by the State. Legislature by enacting subsection (8) of section 8 under which the provisions of sub-section

(2) of section 8 and of sections 16 and 16-A are made applicabie mutatis mutandis to the recovery of tax payable by a dealer if he fails to pay it.

Sub-section (2) of section 8 provides for payment of interest, section 16 provides for recovery of tax as arrears of land revenue, and section 16-A provides for issue of a garnishee notice to a person from whom money is due, or may become due, to the ~·~- assessee or to a person who holds, or may subsequently hold, money ...._ 'for or on account of the assessee to pay to the Assessing Authority

. .

as much of the money as is sufficient to pay the amount due by the assessee by way of tax.

Thu•, payment of interest in case of default in payment of tax is a means of compelling an assessee to pay the tax due by the prescribed date. It is a mode of recovery of tax and well within the legislative power of the State. ·

The challenge to sub-section (2) of section 8 on the ground that the provisions of that sub-section infringe Article 14 of the Constitution is a twofold one, namely:

(I) tha, t the said sub-section is discriminatory, and

(2) that it is arbitrary and unreasonable.

Sub-clause ( 4) of clause 2 of the Constitution (Application to Jammu and Kashmir) Order, 1954, makes Article 14 of the Constitution oflndia applicable to the State of Jammu and Kashmir.

With respect to the charge of discrimination, it was submitted that such high rates of interest for nori'payment of ta)\ are not to be found in the. sales tax law of any other State and, therefore, by enacting . , the said sub section (2) of section 8 and providing for payment of interest at the rate of two por cent per month when the period of default exceeded three months.but did not exceed six months and for interest at the rate of three per cent per month if the default was for a period exceeding six months, dealers in the State of Jammu and Kashmir were hostilely discriminated against as compared with dealers in other .States.

This argument wholly overlooks the very basis of the scheme of distribution of legislative power contained in our Constitution. Our Constitution is federal in its structute and a salient feature of a federal polity is distribution of legislative and administrative powers between the federated unit and the federating units, that is, between the federal government

874 sVPRllMB COURT REPORTS tl984] :l. s.c.R.

and the State governments. Thus, matters in respect of which our Constitution-makers felt that there should be uniformity of law throughout the country have been placed by them in the Union List (List I in the Seventh Schedule to the Constitution) conferring exclusive power upon Parliament to make laws with respect thereto, while matters which they foll were of local concern and may require laws to be made having regard to the particular needs and peculiar problems of each State have been assigned to the State Legislatures by placing them in List II of the Seventh Schedule, that is, the State List. Inter-State trade and commerce is a matter which affects all the States in India and thus the whole country.

It is for this reason that in the Seventh Schedule to the Constitution the subject of taxes on the sale or purchase of goods taking place in the course of inter- State trade or comme.rcc bas been put in List I and made a Union subject. Taxes on the sale or purchase of goods taking place within the State affect only those who carry on the business of buying and selling goods within the State and, therefore, this subject has been put in List II of the Seventh Schedule, namely, the State Lbt. Sales tax .is the biggest source of revenue for a State and it is for the State to decide how and in what manner it will raise this revenue and to determine which particular transactions of sale or purchase of goods taking place within that State should be taxed , and at what rates, and which. particular transactions of sale or purchase of goods should be exempted from tax or taxed at a lower rate having regard to the subject-matter of sale, as for instance, where particular goods constitute necessities for the poorer classes of people or where the goods in question are of such a nature as are required to be exempted from tax or: taxed at a lower rate in order to encourage a local industry.

Consideration of these matters must, from the nature of thmgs, differ from State to State.

Similariy, it is for each State to determine the methods it will adopt to collect its revenue from this source and to decide which methods would be most . efficacious for this purpose. The provisions of the sales tax Jaw of each State must, therefore,· necessarily differ in various respects from the provisions of sales tax laws of otner States. If the provisions of the legislation of every State on a particular topic are to be identical in every respect, there is no purpose in including that topic in the State List and it may as wrll be included in the Union List. Merely because the provisions of a State law differ from the provisions of other State laws on the same subject caionot make such provisions discriminatory.

H The second part of the challenge under Article 14 was with

!(HAZAN CHAND v. 1. & x:. STATE (Madon, J.)

respect to the rates at which interest is payable under sub-section (2) of section 8 on the amount of tax paid after the expiry of the prescribed date of payment It is true that the rate of two per cent per month and plfticuforly the rate of three per cent per month can be said to be on the high side, but we fail to see how this would render th'e provisions of that sub-section void or unconstitutional.

Providing for payment of interest in case of delayed payment of tax is a method usually adopted in fiscal legislation to ensure that the amount of ta< which is due is paid by the prescribed time and provisions in that behalf form part of the recovery machinery provided in a taxing statute. It is for the State to provide by what means payment of tax is to be enforced and a person who noes not pay the amount of tax lawfully and admittedly due by him can hardly complain of the measures adopted.by the State to compel him to pay such amount. It neither lies in the defaulter's mouth to protest against the rate of interest charged to him nor is it open to him to dictate to the State the methods which it should adopt for recovering the amount of tax due by him.

In this connectic>n, it is pertinent to note that under section IOB of the Act, where as a result of an order mad' in appeal or revision, a refund has become due to t_he dealer or any other person on account of tax or penalty found to have been paid in excess, the State Government is requited to pay to such dealer or person simple interest at the rate of 12-pet, cent per annum on the amount of such refund from the date such . payment was made upto the date on which such refund was granted , and in case of delay in refunding the excess amount; interest at the rate of 24 percent per _annum if the refund is granted beyond a period of three months out before the expiry of six mdhths from the date of the appellate or revisional order and at the rate of 36 per cent per annum if it is granted thereafter. Thus,'.under the Act, the same rates of interest apply both to the dealer whd has made default in payment of tax due by him and to the State Government in case of default made by it in making payment of the amount of tax or penalty which has become refundable as a result df an appel' late or revisional order. The graduated rates of interest provided_

by sub-section (2) of section 8 cannot, therefore; be characterized as arbitrary or unreasonable. ·

The rcmairiing contentions are directed not against the cons titutionality of the impugned statutory provisions but against the.; legality of the impugned orders. The first of these contentions is that the assessees, having sold goods on credit basis, are not liableto pay the quarterly tax until they have received from their CJ!StO-

IJ-

876 sUPRBMI! COURT REPORts

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mers the price of goods sold to them. This contention is founded upon an assumption that the liability to pay the tax under the Act is contigent upon receipt of the sale price-an assumption not warranted by the provisions of the Act. Under the Act, the liability to pay sales tax is cast upon a dealer. This is made clear by section 4 of the Act which is headed "Liability to tax under this Act." The relevant provisions of sub-section (I) of section 4 .are as follows:

"Subject to the provJSJons of this Act, every dealer,· except the one dealing exclusively in gods declared tax free under Section 5, shall pay for each year tax on his taxable" turnover at a rate not exceeding twenty-fiye per cent of such turnover as may be determined by the Government and notified by the Government in the Government Gazette and such tax shall be charged on the sale of goods once only.

x x x x x ,,

Under section 6, a dealer who has become liable to pay under section 4 is prohibited from carrying on business as a dealer until he has been registered in accordance with the provisions of the Act.

Clause (g) of section 2 inter alia defines a 'dealer' as meaning "any person who carries on (whether regularly or otherwise) the business of selling, purchasing or distributing goods, directly or indirectly, for cash or for deferred payment, or for commission, remuneration, or other valuable consideration" .. Clause (L) (1) defines the expression "sale" with all its grammatical variations and cogna, e expressions a.s meaning "any transfer of proporty in goods, otherwise than by mortgage, hypothecation, charge or pledge, by any person for cash or deferred payment or for any other valuable consideration ... ".

Clause (L) (II) defines "sale price" as meaning inter a/ia "the amount of >aluable consideration paid or payable to a dealer for any sale made including any sum paid or payable for anything done by the dealer in respect of the goods at the time of or before delivery thereof other than the actual cost of outward freight or delivery or the cost of installation when such cost is separately charged." Under clause '(n) of section 2, "turnover" includes the aggregate of the amounts of sale and purchase and parts of sale and purchase made by any dealer whether as principal, agent or in any other capacity.

It is clear from the above statutory provisions that the liability to pa1 sales tax is that of the dealer and not of the peraon who purchases goods from him and for the purposes of sales tax, it is

KHAZAN CHAND v. 1. & K. STATE (Madon, J.) 871

immaterial whether the prico of goods has been paid to the. dealer or is payable to him The fact that a dealer has sold goods on credit is, therefore, wholly immaterial. The Act imposes the liability to pay sales tax on dealers. This liability is irrespective of the fact whether he has made profit or loss in' his business and whether he has received the sale price or not.

When the liability to pay sales tax is cast by the statute on the dealer, he may pass on to his customer the amount of tax payable by him but he can only do so as a term of the contract of sale. Unless and until the purchaser agrees to pay to his vendor the amount of sales tax payable by the

-....__~. venrlor, he is not bound to pay it to the vendor.

Where, however, the purchaser agrees to pay such amount, it forms part of the sale price on which sales tax would be payaple to the State. Under the sales tax laws of some States, a dealer is permitted to recover or collect from the purchaser the amount of sales tax payable by him.

Even then the dealer can recover or collect such amount only if the purchaser agrees to pay it. In such cases, under those sales tax laws the amount so recovered or collected is nol treated, either in whole or in part, as part of the sale price and not taxed, provided the amount not taxed 1s paid over to the State or tax on the full amount, that is, including the amount of tax so recovered or collected, is required to be paid along with the quarterly or monthly return, as the case may be, and then at the time of assessment refund of the whole or oart of the tax on the amount so collected is given to the dealer.

In this connectien, a reference was made to section 64-A of the Sale of Goods Act, 1930, (sustituted for the original section 64-A by the Sale of Goods (Amendnient) Act, 1963, under which unless a. different intention appears from the terms of the contract, in the

event of any duty of customs or excise on goods or any tax on the sale F or purc4ase of goods being imosed, increased, decreased or remitted in respect of any goods after the making of any contract for the sale or purchase of such goo'ds, without stipulation as to the payment of such duty or tax where duty or tax was not chargeable at the time or the making of the contract, or for the sale or purchase of such goods duty paid or tax paid where duty or tax was chargeable at that time, if such imposition .or increase so takes effect that the duty or. tax or G increased duty or tax, as the case may be, or any part of such duty or tax is paid or is payable, the seller may add so much to the contract price as will be equivalant to the amouut paid or payable in respect of such duty or tax or increase of duty or tax, and is to be entitled to be paid and to sue for and recover such addition, and if

878 SUPREME COURT REl'ORTS

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such decrease or remission so takes effect that the decreased duty or tax only, or no duty or tax, as the case may be, is paid or is payable, the buyer may deduct so much from the contract price as will be , equivalent to the decrease of duty or tax or remitted duty or tax, and is not to be liable to pay or be sued for in respect of such deduction.

We do not find Section 64-A of the Sale of Goods Act tu have any relevance to the point before us. That section is subject to a different intention appearing from the terms of the contract and gives a right to the seller to odd the amount of customs or excise duty or sales tax or purchase tax to the price of goods where such duty or tax is imp.osed for the first time after the contract of sale is made, where the contract does not contain any stipulation as to payment of duty or tax, or in case the goods are sold duty paid or tax paid, where ihe rate of snch duty or tax is increased, to add the extra duty or tax to the contract price. Tho! section also gives a corresponding right to the buyer to deduct so much from the contract price as will be equivalent to the decrease of duty or tax or remitted duty .or tax where any decrease or remittance in duty or tax takes place after the making of the contract of sale. Section 64-A thus provides for the rights and liabilities inter se of a seller and buyer of goods, where any customs or excise duty or any sales tax or purchase tax is imposed or its rate increased or decreased, or such duty or tax remitted in whole or in part after the making of the contract of sale.

This section does not deal with the l; ab!ity of the seller to pay , sales tax to the Government.

Under section 8-B of the Act, where a registered dealer realizes , any amount by way of tax from the purchaser, he is required to deposit it in the Government Treasury or in the office of the Deputy ·

Sales Tax Comissioner within one month of its realization.

Where a dealer so deposits the te\x, he would get credit for it against the amount of tax payable by him, but from this it, does not follow that where he has not been able to recover the amount of tax or sale price from his customers, he is not bound to comply with the statutory requirements of sub-section (3) of section 8 under which he has , to pay tax according to the quarterly return furnished by him before the date prescribed for filing such return. The Assessees were, there. fore, bond to pay the tax due according to the quarterly returns filed by them before filing such returns and the fact that their custo . mers had not paid.to them the sale price did not exempt them from their statutory liability in this behalf.

The next contention, namely, that the. Assessing Authority was

KHAZAN CHAND v. J. & K. STATE (Madon, J.)

not entitled to impose interest, the amount of which exceedc~ the amount of tax in respect of which default had been made in paying it by the prescribod date, is equally without any substance. No reason was advanced in support of this contention and we .fail to see on what prmciple the Hindu Law rule of damdupat can be made applicable to a sales tax legislation. The recovery provisions of the Act are meant for speedy and prompt collection of revenue. These provisions are not meant for the benefit of defaul, ting tax-payers and such defaulters cannot claim that the amount of interest payable by them on delayed tax payment should be scaled down as if they were entitled to claim relief under a debt relief law.

In taking up such a contention, the concerned Assessees have overlooked the fact that the amount of interest payable by them would not have exceeded the amount of tax not paid by them by the prescribed date had they paid the tax due earlier as also the fact that they would not have been liable to pay any amount at all by way of intere.st had they paid the tax due oy the prescribed dte. ·

We now turn to tho contention that the Assesses were not liable to pay interest unless a notice of demand was .first issued to them calling upon them to pay the. amount of quarterly tax due from them. In support of this submission reliance placed upon subsections(!) and (2) of section 8 of the Act. In our opinion, reliance placed upon those sub-sections is misconceived for in doing sot.he Assessees have overlooked the other relevant provisions of section 8.

Sub-setion (I) of section 8 requires that the tax assessed, or any other amount demand, under the Act is. to be paid in such manner and within such time, not being less than fifteen days from the date of the notice of demand, as may be specified in the notice and it is.· when default is made in making such payment that the who!" of the amount then remaining due becomes recoverable in accordance with sections 16 and 16-A of the Act. Sub-section (2) of section 8 lays down that if the tax or any other amount due under the Act j, not . paid within the period specified in the notice of demand, the defaulter will become liable to pay interest on the tax or other amount from the date it was payable to the date of actual payment at the rates mentioned in the said sub-section. Under sub-section

(3) of section 8, quarterly tax is to be paid before furnishing the quarterly return but not later than the date prescribed under sub- . section (2) of section 7. As we have seen, under sub-section (2) of section 7 quarterly returns are to be fun1ished within thirty day; from the expiry of the quarter and such return is to be accompanied by a: Treasury Receipt or any other proof of payment of tax due

880 SUPRBMB COURT RliPORts

[1984) 2 S.C.R.

according to that return. This requirement implies that the tax due according to a quarterly return has to be paid before the filing of that return by the prescribed date therefor. Under sub-section <8) of section 8, if a dealer fails to pay the tax payable under that section, the provision• of sub-section (2) of section 8 and of sections 16 and 16-A are to apply mutatis mutandis to the recovery thereof. Thus, provisions of sub-section (2J of section 8 apply when quarterly tax is not paid before furnishing a quarterly retern under sub-section (3) of section 8 but by the express terms of sub-section {8) of section 8, the provisions of sub-section (2) of that section will apply to the recovery of quarterly tax not in their entirety but "mutatis mutiwdis". Under sub-section 0) the tax assessed or any other amount demanded is to be paid within the time specified in the notice of demand. Under sub-section (3 ), the quarterly tax is to be paid before furnishing the quarterly return but not later than the date prescribed under sub-section (2) of section 7. Thus, by sub-section

(3) the time for payment of quarterly tax is not made dependent upon the issuance of a notice of demand and the date for payment to be specified in it but it is statutarily fixed and, as under sub-section (8) of section 8 the proviaions of sub-section (2) are to apply muratis mutandis to the recovery of quarterly tax, necessary cbanges must be made in the provisions of sub-section (2) in their application to the recovery of quarterly tax payable under snb-section (3). Accordingly, the requirement of sub-section (2) that interest will be chargeble from the date specified for payment in the notice of demand cannot be applied to the payment of quarterly tax and . necessary alterations as required by sub-section (8) will, therefore, have to be made in the provisions of sub-section (2) in their application to a default made in payment of quarterly tax 'and sub-section (2) must be read as providing that interest under sub-section (2) will become payable from the date prescribed by sub-section (3) of section 8 for payment of quarterly tax. There is thus no substance in this contention. We may also mention that in the case of certain other orders made under the Act demanding interest on default being made in payment of quarterly tax, the challenge thereto on the ground that no interest can be charged unless a notice has been issued demanding payment of quarterly tax was negatived by this Court in Messrs Royal Booi House etc. v. State of Jammu and Kashmir and others.(1)

(1) C- M. P. Nos. 32413 and 32414 of 1983 decided oo January 6 1983, by P. N. Bbagwati, Ac. C. J., a Venkataramiah arid

. H Varadarajan,' JJ.

KI!AZAN CHAND v. J. & K. STATE (Madon, J.) 881

We now turn to the last contention raised before us, namely, that the Assessing Authority was not entitled to charge interest at the maximum rate but could only charge interest at the graduated rate specified.in sub-section (2) of section 8.

It appears that in most, if not in all, orders which .have been impugned in these Petitions .and Appeals, interest on the amount of quarterly tax not paid in time has been imposed at a uniform rate for the full period of default and not according to the scale of rates prescribed by sub-section (2) of section 8. Thus, where the default was for a period exceeding three months but not exceeding six months, interest bas been levied for the full period of default at the rate of two per cent per month and where the ddault was for a period exceeding six months, interest at the rate of three per cent per month has been levied for the entire period of default. Jn our opinion, this is not warranted by the terms of sub-section, (2) of section 8 of the Act. Sub-section (2) provides for different rates of interest depending upon the length of the period of default. If the default was for a period not exceeding three months, then the interest could only be charged at the rate of one per cent per month and where the default was for a period exceeding three months but not exceeding six months, then the interest which could be charged can only be one per cent month for the first three months of default and two per cent per month for the remaining period In the same way, if the default was for a period exceeding six months, interest could be chaged only at the rate of one per cent per month for the firs.! three months of default, at the rate of two per cent per month for the next three months of default and at the rate of three per cent per month for the remaining period of default. The grievance made by the A ssessees is justified and their challenge to the impugned orders on. this ground must, therefore, succeed.

 . In the result, though we uphold the constitutionality of subsecttons (!), (2) and (3) of section 8 of the Jammn and Kashmir General Sales Tax Act, I 962, we make the rule issued in each of the G Wdt Petitions before us absolute only to the extent that we restrain. the Stale and Jammu and Kashmir from recovering from the Assessees who are Petitioners before us interest on the amount of quarterly tax paid after the expiry of the date prescribed for payment thereof by sub-section (3) of section 8 of the Act at a rate other than the rate of one per cent per month for the first three months of <lefa11lt and at the rate of two per cent per mont)l for the next tllree lJ

882 SUPREME COURT RllPORTS [1984) 2 s.c.R.

months of default and at the rate of three per cent per month for the period of default exceeding six months. We also allow the Appeals filed by the Assessees who are Appellants before us to the same limited extent by setting aside the .order of dismissal of their writ petitions passed by the Jammu and Kashmir High Court and making the rule issued in each of those writ petitions absolute only to the limited exter.t specified above.

On an application made to us in that behalf, we grant to the Petitfoners and Appellants before us three months' time from today to make payment of the amount of interest due and payable by them according to this Judgment and the State of Jammu and Kashmir will not until the expiry of the said period of three months take any steps to recover such amount of interest from any of the Petitioners and Appellants.

As the Petitioners and Appellants before us have partly succeeded in the Writ Petitions and Appeals filed by them, we make no order as to the costs of these Writ Petitions and Appeals.

N.V.K Appeals & Petitions partly allowed. -

KHAZAN CHAND ETC

STATE OF JAMMU AND KASHMIR AND OTHERS

P. N: BHAGWATi

D. P. MADON, JJ.

Constitution of India

Section 8

Section 8

Article 14

Section 8

section 8

section 8

Article 265

section 8

section 8

Article 14

section 8

section 8

section 8

State of Jammu and Kashmir

Article 3

State of Jammu and Kashmir

Article 370

Article 370

Article 370

President of India

Constitution of India

June 20. 1964

of Jammu and Kashmir

Article 246

Constitution of India

Article 246

clause 2

Seventh Schedule

State of Jammu and Kas.hmir

Parliament

Constitution of India

India

clause 2

Article 265

Jammu and Kashmir

Section 114

Article 265

Constitution of India

(1947) F.C.R. 116

Seventh Schedule

Seventh Schedule

section 8

section 8

sections 4

section 2

Section 64A

Sale of Goods Act, 1930

section 8

section 7

section 8

section 8

P. N. Bhagvati

Venkataramiah

Varadarajaa

section 8

section 8

article 32

Constitution of India

StJPRBMB CoURT REORTS

(1984) 2 S.C.R.

230

K. K. Venugopal

Anll Dev Singh Salish Vig

S. P. Sharma

L. K. Gupta

Vimal Dave

R. C. Kaushik

Subhash Sharma

Altaf Ahmed

MADON

section 8

section 7

section 7

KHAZAN CHAND

sections 16 and 16A

Section 7

Section 7

Section

16

Section 16

Section 7

section 8

Jammu and Kashmir High Court

section 8

section 8

Article 265

Constitution of India

section 8

section 8

Article 14

section 8

section 8

Article 265

Article 265

Article 246

Constitution of India

Seventh Schedule

Seventh Schedule

Constitution of India

State of Jammu

Article 370

Constitution of India

State of Jammu and T

Article 370

Article 370

Article 1

Article 370

Article 370

Article 370

Constitution of India

November 17, 1965

Constitution of India

June 20, 1954

Article 246

Constitution of India

Article 246

clause 2

Seventh Schedule

K. STATE (Madon, J.) 871

Seventh Schedule

State of Jammu and K.ashmir

Section 5

Constitution of India

clause 2

Article 265

section 114

Article 165

Constitution of India

Dunedin

SUPRBMB COURT

Income Tax Act, 1961

section 8

section 7

section 8

section 8

sections 16 and 16

section 8

section 16

section 16

section 8

Article 14

clause 2

Article 14

section 8

Seventh Schedule

Seventh Schedule

Seventh Schedule

Seventh Schedule

Article 14

section 8

section 8

section 4

section 4

Section 5

section 6

section 4

section 2

section 2

section 64

Sale of Goods Act, 1930

section 64

Section 64

Sale of Goods Act

Section 64

section 8

section 8

section 8

section 8

section 8

sections 16 and 16

section 8

section 8

section 7

section 7

SUPRBMB COURT RliPORts

[1984) 2 S.C.R.

section 8

section 8

sections 16 and 16

section 8

section 8

section 8

section 0

section 7

section 8

section 8

P. N. Bbagwati

H Varadarajan

section 8

section 8

section 8

section 8

section 8