KMK Event Management Ltd. Vs The Commissioner of Commercial Taxes

@JUDGMENTTAG-ORDER

Ramesh Ranganathan, J.@mdashThe proceedings, under challenge in this Writ Petition, is the order of the Commissioner, Commercial Taxes (hereinafter called the Commissioner) dated 24.04.2013 rejecting the petitioners representation seeking deferment of the proposed assessment, in Form VAT 305-A dated 12.09.2012, by the Assistant Commissioner, Commercial Taxes II, Enforcement Wing (hereinafter called the assessing authority).

2. The Assessing Authority issued a show cause notice, in Form VAT 305-A dated 12.09.2012 for the assessment year 2011-12, proposing to levy tax on the petitioner, among others, on (a) the amount charged towards outdoor catering; (b) the amount charged towards hiring of tent house equipment; and (c) the levy of VAT on sales made to dealers in other States. He also disallowed the petitioners claim for input tax credit on liquefied petroleum gas (LPG) used by them for cooking food items. The petitioner filed their objections thereto by letter dated 18.12.2012, and appeared before the assessing authority for a personal hearing. They filed an application before the Commissioner on 18.01.2013 requesting him to issue an order under Section 21(7) of the A.P. VAT Act (hereinafter called the VAT Act) deferring assessment proceedings initiated by the assessing authority against them. The petitioner contended that levy of VAT on the turnover on which service tax was levied as hire charges, and levy of VAT on supply of food and drinks on which also service tax was levied, was the subject matter of W.P. No. 6692 of 2011 which was admitted, and was pending on the file of the High Court.

3. In his order dated 02.02.2013, the Commissioner (1st respondent herein) held that the show cause notice issued by the assessing authority was for several issues, apart from the proposal to levy tax on the service part of outdoor catering services; and all the issues mentioned in the show cause notice were not the subject matter of W.P. No. 6692 of 2011, pending before the High Court. Consequently, the petitioners request for deferment of assessment proceedings was rejected. The petitioner submitted another representation on 04.02.2013 contending that, in addition to the aforesaid two issues which were the subject matter of W.P. No. 6692 of 2011, the issue relating to levy of VAT, on the turnover on which service tax was levied, was decided by the Supreme Court in Imagic Creative Pvt. Ltd. Vs. The Commissioner of Commercial Taxes and Others, ; and the question whether VAT could be levied on the amount received towards the service element, in the supply of food and drinks, had been decided by the Supreme Court in Bharat Sanchar Nigam Ltd. and Another Vs. Union of India (UOI) and Others, , Imagic Creative Pvt. Ltd. Vs. The Commissioner of Commercial Taxes and Others, , and Tamil Nadu Kalyana Mandapmam am Assn. Vs. Union of India (UOI) and Others, ; by the Cap ''N'' Chops Caterers Vs. State of Haryana, ; and by the Commissioner of Service Tax, Service Tax Commissionerate, Bangalore Vs. LSG Sky Chef India Pvt. Ltd., . However, for the other issues, the petitioner conceded that the assessing authority could pass an assessment order.

4. After considering the petitioners objections, the Commissioner passed an elaborate order dated 24.04.2013 rejecting their request for deferment of assessment proceedings. The Commissioner negatived their claim that the issue regarding levy of VAT, on supply of tent house material, was the subject matter of W.P. No. 35693 of 2012 and batch, and held that what was under challenge therein was the levy of VAT on advertising/hiring activity, and not on hiring of tent house equipment. The Commissioner also held that the proposal to levy VAT, on the sale of food and drinks in catering activity, could not be deferred as the petitioner had not produced any evidence that the facts in Tamil Nadu Kalyana Mandapmam am Assn. Vs. Union of India (UOI) and Others, was similar to their case attracting the said decision; and the law declared by the Supreme Court, in M/s. K. Damodarasamy Naidu and Bros. Etc. Etc. Vs. The State of Tamil Nadu and Another Etc. Etc., , was still good law. With regards disallowance of input tax credit on LPG, the Commissioner held that, in the case of M/s. RAK Ceramics (India) Private Limited Vs. The Assistant Commissioner (CT)-VI, , the High Court had granted interim stay by order in WPMP No. 32 of 2013 in WP No. 31 of 2013 dated 13.01.2013; the interim stay was only regarding recovery of the disputed tax; there was no stay on the substantive issue i.e., on disallowance of ITC on LPG as per Rule 20(2)(q) of the VAT Rules; there were many issues involving questions of fact; and the question, whether a particular transaction would come under transfer of the right to use, had to be examined based on the facts of each case.

5. It is this order of the Commissioner which is under challenge in this Writ Petition. Interim orders were passed by this Court in W.P. MP No. 16922 of 2013 dated 30.04.2013, which were extended thereafter. Consequently, the assessing authority has been disabled from passing an assessment order pursuant to the show cause notice dated 12.09.2012. During the course of hearing of this Writ Petition on 11.11.2012, this Court called upon the Commissioner to file a counter-affidavit on whether the VAT Act conferred on him the power to defer assessment proceedings. In his counter-affidavit dated 22.11.2014, the Commissioner submitted that the petitioner was liable to pay tax on the total amount set out in the tax invoice; the Assistant Commissioner had, by his notice dated 12.09.2012, rightly proposed to tax the turnover which had escaped assessment; the petitioners application for deferment of assessment proceedings was rejected by him in accordance with law; on a conjoint reading of Section 21(7) and 32(5) of the VAT Act, the Commissioner has the power to defer assessment proceedings; and, as has been held by this Court in M/s. Global Fuels Lubricants Inc. v. The Commissioner of Commercial Taxes Judgment in WP No. 4516 of 2013 dated 18.02.2013, the power to defer assessment proceedings is valid.

6. Dr. T. Ramesh Babu, Learned Counsel for the petitioner, would draw attention of this Court to an interlocutory order passed in M/s. Schindler India Private Limited v. Commercial Tax Officer (Int.) Secunderabad Order in WPMP No. 23591 of 2012 in W.P. No. 18430 of 2012 dated 25.06.2012, and to the judgment of the Supreme Court in The Commissioner of Income Tax, West Bengal II, Calcutta Vs. Naga Hills Tea Co. Ltd., and Collector of Customs, Madras v. Lotus Inks (1997) 10 SCC 291. He would also place reliance on M/s. Global Fuels Lubricants Inc. Judgment in WP No. 4516 of 2013 dated 18.02.2013, to submit that, on a conjoint reading of Section 21(7) read with Section 32(5) of the VAT Act, the Commissioner has the power to defer assessment proceedings.

7. In M/s. Schindler India Private Limited Order in WPMP No. 23591 of 2012 in W.P. No. 18430 of 2012 dated 25.06.2012 this Court, by way of an interlocutory order, observed that, prima facie, Section 21(7) read with Section 32(5) of the VAT Act enables the Commissioner to defer assessment proceedings and, as the Commissioners power under Section 32(5) of the VAT Act is exercised qua an assessment order already passed, impliedly the Commissioner can always even defer the assessment. It is well settled that interlocutory orders have no finality and are, therefore, not binding as a precedent. As there is no finality to an interlocutory order, and interim orders passed by Courts on certain conditions are not precedents for other cases which may be on similar facts, Empire Industries Limited and Others Vs. Union of India and Others, ; Vijaya Kumar and Others Vs. General Manager, Milk Products Factory, Andhra Pradesh Dairy Development Cooperative Federation Ltd., , the interim order passed in M/s. Schindler India Private Limited Order in WPMP No. 23591 of 2012 in W.P. No. 18430 of 2012 dated 25.06.2012 would not constitute a precedent binding on a co-ordinate Division Bench.

8. It is no doubt true that, if two views are possible on the interpretation of the provisions of a fiscal statute, the construction in favour of the assessee should bind the decision of the Court. The Commissioner of Income Tax, West Bengal II, Calcutta Vs. Naga Hills Tea Co. Ltd., and Collector of Customs, Madras Vs. Lotus Inks, . As the power to defer assessment proceedings can only be statutorily conferred by the legislature, and not by the Court, the question which necessitates examination is whether Section 21(7) of the VAT Act, either explicitly or by necessarily implication, confers power on the Commissioner to defer assessment proceedings.

9. It is only if the Commissioner has the power to defer assessment proceedings, would he be entitled to entertain and examine any request for its deferment. As conferment of the power, to defer assessment proceedings, is a pre-requisite for its exercise, this Court must, at the outset, examine whether the VAT Act confers on the Commissioner the power to defer assessment proceedings, before considering whether exercise of the power to pass the impugned order dated 24.04.2013, rejecting the petitioners request for deferment of assessment proceedings, is valid or not. Before doing so, it is necessary to consider the submission of the Commissioner that, in view of the law declared by the Division bench of this Court in Global Fuels Lubricants Inc. Judgment in WP No. 4516 of 2013 dated 18.02.2013, the Commissioner has the power to defer assessment proceedings.

10. In M/s. Global Fuels Lubricants Inc. Judgment in WP No. 4516 of 2013 dated 18.02.2013, the order of the Commissioner, super-adding the condition of furnishing a bank guarantee for deferment of assessment proceedings, was under challenge. The Division Bench held that the order passed by the Commissioner, directing the petitioner to furnish a bank guarantee, was destructive of the purpose for which the power and discretion was conferred under Section 32(5) of the Act; this provision enabled the Commissioner to defer any proceedings on the ground that an appeal or other proceedings are pending before the Appellate Tribunal or the High Court or the Supreme Court involving a question of law having a direct bearing on the order or proceeding in question; Section 32(6) extended the period of limitation for passing an order of assessment pro-tanto the period for which a deferment was ordered under Section 32(5) of the Act; in the circumstances, there was no prejudice caused to the Revenue by deferment of proceedings; the provision was, in fact, incorporated to facilitate a uniform and coherent tax administration policy i.e., to proceed with the assessment in conformity with the guidance received from the orders of the Appellate Tribunal, the High Court or the Supreme Court, as the case may be, on matters involving identical or substantially similar questions of law; and, where an order of assessment has not been passed as yet, the order of the Commissioner super-adding a condition calling upon the petitioner to furnish a bank guarantee, for a liability yet to be assessed, constituted an irrational exercise of discretion.

11. The question, which arose for consideration before the Division bench in M/s. Global Fuels Lubricants Inc Judgment in WP No. 4516 of 2013 dated 18.02.2013, was whether the Commissioner could direct a VAT dealer to furnish a bank guarantee as a pre-condition for deferment of proceedings. The question whether the Commissioner had the power to defer assessment proceedings did not arise for consideration therein. Dr. T. Ramesh Babu, Learned Counsel for the petitioner, would however contend that it is only if the Commissioner has the power to defer assessment proceedings could he have imposed the precondition of furnishing a bank guarantee to defer assessment proceedings. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides. It cannot be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas it must be acknowledged that the law is not always logical at all. The State of Orissa Vs. Sudhansu Sekhar Misra and Others, ; Quinn v. Leathem ( 1901 AC 495 : (1900-03) All ER Rep. 1 (HL)). While the premise, on which the judgment in M/s. Global Fuels Lubricants Inc Judgment in WP No. 4516 of 2013 dated 18.02.2013 is founded, is that the Commissioner has the power to defer assessment proceedings, the question whether the Commissioner had the power to defer assessment proceedings was not in issue before, nor was it examined by, the Division bench. Reliance placed on M/s. Global Fuels Lubricants Inc Judgment in WP No. 4516 of 2013 dated 18.02.2013 is, therefore, misplaced.

12. Section 32(1) of the VAT Act enables the Commissioner to, suo moto, call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it under the provisions of the VAT Act, including sub-section (2), and, if such order or proceeding recorded is prejudicial to the interests of revenue, he may make such enquiry or cause such enquiry to be made and, subject to the provisions of the Act, initiate proceedings to revise, modify or set aside such order or proceeding and to pass such order in reference thereto as he thinks fit. Under Section 32(2) the powers, of the nature referred to in sub-section (1), can also be exercised by the Additional Commissioner, the Joint Commissioner, the Deputy Commissioner and the Assistant Commissioner, in the case of orders passed or proceedings recorded by the authorities, officers or persons subordinate to them.

13. As the proviso to Section 32 of the VAT Act is similar to Section 20(2-A) of the A.P. General Sales Tax Act (APGST Act for short), it is useful to read Section 20(2-A) of the APGST Act in juxta-position with the proviso to Section 32 of the VAT Act as it originally stood, and the proviso to Section 32 of the VAT Act after it was amended by Act 21 of 2011 with effect from 15.09.2011.

14. Section 20(2-A) of the APGST Act and the proviso to Section 32 of the VAT Act, prior to its amendment by Act 21 of 2011 with effect from 15.09.2011, disabled the revisional authority from exercising the power of revision in respect of any issue or question which (i) was the subject matter of an appeal before the Sales Tax Appellate Tribunal (STAT for short); and (ii) was decided in appeal by the STAT. The effect of the amendment, by Act 21 of 2011, is that there is no longer any bar on the exercise of the revisional jurisdiction when the issue or question is the subject matter of an appeal before the STAT. The bar is now limited only in respect of an issue or question decided in appeal by the STAT.

15. As the proviso to Section 32, prior to its amendment, barred exercise of the revisional jurisdiction in respect of any issue or question which was the subject matter of appeal before the STAT, the power to defer revision proceedings was confined, under Section 32(5) of the Act prior to its amendment by Act 21 of 2011 dated 29.12.2011 with effect from 15.09.2011, only to cases where an appeal or other proceedings were pending before the High Court, or the Supreme Court, involving a question of law having a direct bearing on the order or proceedings in question. By Act 21 of 2011, the proviso to Section 32 was amended and, thereafter, the bar on the exercise of the revisional jurisdiction is now limited only in respect of an issue or question decided in appeal by the STAT, and not when an issue or question is the subject matter of an appeal pending before the STAT. It is only because the bar, under the proviso to Section 32, is no longer applicable when an appeal is pending before the STAT, has power now been conferred on the Commissioner, under Section 32(5) of the VAT Act after its amendment by Act 21 of 2011 w.e.f. 15.09.2011, to defer revision proceedings when an appeal, involving any issue or question having a direct bearing on the revision proceedings, is pending before the STAT.

16. Section 32(5) of the VAT Act makes it lawful for the Commissioner to defer any proceedings under this section meaning thereby Section 32 of the VAT Act alone, and not assessment proceedings under Section 21 or appellate proceedings under Section 31 of the VAT Act. Extending the power of the Commissioner, under Section 32(5) of the VAT Act, to also defer assessment proceedings under Section 21, or the appellate proceedings under Section 31, of the VAT Act would require this Court to ignore the words under this section in Section 32(5) of the VAT Act. It would be wholly inappropriate for this Court, while interpreting a statutory provision, to delete or ignore some of the words used therein. No construction, which requires the words under this section in Section 32(5) of Act to be ignored, or construed as inapposite surplusage, is permissible. Courts have adhered to the principle that effort should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute, as being inapposite surplusage, if they can have a proper application in circumstances conceivable within the contemplation of the statute. Gurudevdatta VKSSS Maryadit and Others Vs. State of Maharashtra and Others, , Manohar Lal Vs. Vinesh Anand and Others, . The legislative intent, found specific mention and expression in the provisions of the Act itself, cannot be whittled down or curtailed and rendered nugatory. Bharathidasan University and Another Vs. All India Council for Technical Education and Others, . Effect should be given to the provision, and a construction that reduces a part thereof to a dead letter must be avoided. Anwar Hasan Khan Vs. Mohammad Shafi and Others, .

17. Section 21 of the VAT Act relates to assessment. Sections 21(1), (3), (4) and (5) enable the prescribed authority, in the circumstances mentioned therein, to assess a VAT dealer. Section 21(7) of the VAT Act stipulates that, where an assessment has been deferred by the Commissioner under Section 32(5) or, as the case may be, by the STAT under the proviso to Section 33(4), on account of any stay granted by the Appellate Tribunal or, as the case may be, the Andhra Pradesh High Court or the Supreme Court respectively, or where an appeal or other proceedings is pending before the Appellate Tribunal or the High Court or the Supreme Court involving a question of law having a direct bearing on the assessment in question, the period during which the stay order was in force, or such appeal or proceedings was pending, shall be excluded in computing the period of four years or six years as the case may be for the purpose of making the assessment.

18. The words as the case may be mean whichever the case may be, Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others, , and what the expression says, i.e., as the situation may be. Subramaniam Shanmugham Vs. M.L. Rajendran and Others, ; Bluston & Bramley Ltd. v. Leigh (1950) 2 ALL ER 29; Words and Phrases, Permanent Edn. 4 page 596). The words as the case may be in Section 21(7) of the VAT Act mean whichever the case may be i.e., either the Commissioner under Section 32(5)or the STAT under the proviso to Section 33(4) of the VAT Act. As noted hereinabove, Section 32(5) confers on the Commissioner the power to defer revision proceedings initiated under Sections 32(1) & (2) of the VAT Act. The proviso to Section 33(4) of the VAT Act confers power on the STAT to defer hearing of the appeal before it, if the appeal involves a question of law, a decision on which is pending in any proceedings before the High Court or the Supreme Court, till such proceedings are disposed of. The deferment of assessment proceedings, as referred to in Section 21(7) of the VAT Act, is by the Commissioner under Section 32(5) and the STAT under the proviso to Section 33(4), which confer power on the Commissioner to defer revision proceedings, and the STAT to defer hearing of the appeal before it, respectively. The word assessment, in the context of Section 21(7), neither means self-assessment under Section 20 nor an assessment order passed under Section 21 of the VAT Act.

19. The word assessment, in Section 21(7)of the VAT Act, has a wide connotation. It does not always mean the determination of the taxable turnover of a dealer under a taxing statute like the VAT Act. To "levy" a tax means "to impose or assess" or "to impose, assess or collect under the authority of law". It is a unilateral act of a superior legislative power to declare the subjects and rates of taxation and to authorise the collector to proceed to collect the tax. "Assessment" is the official determination of liability of a person to pay a particular tax, and "collection" is the power to gather in money as taxes by enforced payment, if necessary. The levy of taxes is generally a legislative function; assessment is a quasi-judicial function and collection an executive function. These three expressions "levy", "assessment" and "collection" are of the widest significance and embrace in their broad sweep all the proceedings which can possibly be imagined for raising money by the exercise of the power of taxation from the inception to the conclusion of the proceedings. Firm L. Hazari Mal Kuthiala Vs. Income Tax Officer, Special Circle, Ambala Cantt. and Another, . The expression assessment to tax may cover all the various stages leading upto the calculation and statement of the amount of tax due. (Vickerman v. Masons Personal Representatives (1984) 2 ALL ER 1; Hallamshire Industrial Finance Trust Ltd. v. IRC (1979) 2 All ER d 433, (1979) 1 WLR 620). The word assessment'' can bear a very comprehensive meaning; it can comprehend the whole procedure for ascertaining and imposing liability upon the taxpayer; and it may provide for all contingencies which may arise. (Kalawati Devi Harlalka v. CIT Judgment in Civil Appeal No. 1421 of 1966 dated 01.05.1967; S. Sankappa and Others Vs. The Income Tax Officer, Central Circle II, Bangalore, ; State of Bombay (Now Gujarat) Vs. Jagmohandas and Another, .

20. One of the peculiarities of most tax enactments is that the expression "assessment" is used in its various sections to convey different connotations. The word "assessment" is used as meaning sometimes the computation of turnover, sometimes the determination of the amount of tax payable, and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer J.K. Iron and Steel Co. Ltd. Vs. The Income Tax Officer and Another, ; Madangopal Kabra Vs. The Union of India (UOI), ; (1938) 6 ITR 414 (Privy Council). The word ''assessment'' may mean determination of the amount of tax payable. Gulabrai Manohar Lall Vs. Commr. of Income Tax, . The said expression may also be so used as to include proceedings for imposing liability to additional tax called penalty on the assessee''s guilt of fraud, gross negligence, dishonest or contumacious conduct. J.K. Iron and Steel Co. Ltd. Vs. The Income Tax Officer and Another, ; C.A. Abraham, Uppoottil, Kottayam Vs. The Income Tax Officer, Kottayam and Another, ; MAREDDI KRISHNA REDDY Vs. Income Tax OFFICER, TENALI., . It can also be understood to include the entire machinery and procedure for imposing and enforcing the tax liability. J.K. Iron and Steel Co. Ltd. Vs. The Income Tax Officer and Another, ; Commissioner of Income Tax, Andhra Pradesh Vs. Bhikaji Dadabhai and Co., .

21. The word assessment is often used in a comprehensive sense to include all proceedings, starting with the filing of the return or issue of notice and ending with the determination of the tax payable by the assessee. Though, in some sections, the word assessment is used only with reference to computation of tax, in other sections it has the more comprehensive meaning. S. Sankappa and Others Vs. The Income Tax Officer, Central Circle II, Bangalore, ; C.A. Abraham, Uppoottil, Kottayam Vs. The Income Tax Officer, Kottayam and Another, ; Kalawati Devi Harlalka Judgment in Civil Appeal No. 1421 of 1966 dated 01.05.1967). The term "assessment" is flexible, capable of many meanings, and takes its colour from the context in which it occurs. The nomenclature is not decisive, and does not prevent it from being an "assessment" in a proper context. (M/s. J.K. Iron and Steel Co. Ltd. J.K. Iron and Steel Co. Ltd.). The meaning of "assessment" has to be derived from the language of the provision itself. Firm Harpaldas Jairamdas Vs. The Sales Tax Officer and Others, . The word assessment has been used in different Sections in different contexts, and is not always used only to mean assessment of a VAT dealer under Section 21 of the VAT Act. In the context in which it is used, it obviously refers only to revision proceeding under Section 32 and an appeal before the STAT under Section 33 of the VAT Act.

22. It is a legitimate rule of construction to construe words, in a statutory enactment, with reference to words found in immediate connection with them M.K. Ranganathan and Another Vs. Government of Madras and Others, ; Angus Robertson v. George Day (1879) 5 A.C. 63 (PC)). The doctrine of Noscitur a sociis (meaning of a word should be known from its accompanying or associating words) has relevance in understanding the import of words in a statutory provision. Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, ; M/s. Rohit Pulp and Paper Mills Ltd. Vs. Collector of Central Excise, Baroda, ; M/s. Oswal Agro Mills Ltd. Vs. Collector of Central Excise and others etc. etc., ; K. Bhagirathi G. Shenoy and Others Vs. K.P. Ballakuraya and Another, ; M/s. Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad, ; C.B.I., A.H.D., Patna Vs. Braj Bhushan Prasad and Others, . Blacks Law Dictionary (Sixth Edition) defines Noscitur a sociis to mean that a word is known from its associates. The meaning of a word is or may be known from the accompanying words. Under the doctrine of noscitur, the meaning of questionable or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it (Wong Kam Wo v. Dulles 236 F. 2d 622). P. Ramanatha Aiyer THE LAW LEXICON 2nd Edition Reprint 2002 defines Noscitur a sociis to mean that the meaning of a doubtful word may be ascertained by reference to the meaning of the words associated with it (Broom Legal Maxims). One is known by his companions; the meaning of a word or expression is to be gathered from the surrounding words, that is, from the context. The coupling of words together shows that, where the meaning of a particular word is doubtful or obscure or where a particular expression when taken singly is inoperative, the intention of a party who used it may frequently be ascertained by looking at adjoining words, or at expressions occurring in other parts of the same instrument. One provision of an instrument must be construed by the bearing it will have upon another.

23. In construing the words assessment and has been deferred by the Commissioner under Section 32(5) or by the STAT under the proviso to Section 33(4), which are used in association with each other in Section 21(7) of the VAT Act, the rule of construction noscitur a sociis may be applied. The aforesaid words, read in juxtaposition, indicate that the meaning of one takes colour from the other. The Rule is explained as the meaning of doubtful words may be ascertained by reference to the meaning of words associated with it. Ahmedabad Pvt. Primary Teachers'' Association Vs. Administrative Officer and Others, . The setting and context in which the words assessment and has been deferred by the Commissioner under Section 32(5) or by the STAT under the proviso to Section 33(4) are used in Section 21(7) of the VAT Act would require the word assessment not to be understood dissociated from the words has been deferred by the Commissioner under Section 32(5) or by the STAT under the proviso to Section 33(4), or the word assessment to mean the passing of an assessment order under Section 21 of the VAT Act. Despite its having been made under Section 21 of the VAT Act which relates to assessment, the word assessment in Section 21(7), when read with the words assessment and has been deferred by the Commissioner under Section 32(5) or by the STAT under the proviso to Section 33(4), can only mean either a revision under Section 32 or an appeal before the STAT under Section 33(1), for it is only in relation to such proceedings has the power of deferment been conferred on the Commissioner under Section 32(5), and on the STAT under the proviso to Section 33(4) of the VAT Act.

24. Construing Section 21(7) of the VAT Act as conferring on the Commissioner the power to defer assessment proceedings would requires this Court to read such a power as having been conferred also on the STAT, for Section 21(7) refers to deferment of assessment proceedings both under Section 32(5) and the proviso to Section 33(4) of the VAT Act. Such a construction is impermissible on a plain and literal reading of Section 21(7) of the VAT Act. It does not bear repetition that Section 32(5) makes it lawful for the Commissioner to defer proceedings under this section meaning thereby Section 32 of the VAT Act. Likewise, the proviso to Section 33(4) only enables the STAT to defer hearing of the appeal before it, i.e. an appeal preferred by a dealer under Section 33(1) of the VAT Act, and not assessment proceedings under Section 21 of the VAT Act. Section 21(7) of the VAT Act neither explicitly nor by necessary implication confers power either on the Commissioner or on the STAT to defer assessment proceedings initiated under Section 21 of the VAT Act.

25. Even otherwise, Section 21(7)of the VAT Act only provides for the consequences of deferment of assessment proceedings either by the Commissioner under Section 32(5) or by the STAT under the proviso to Section 33(4) of the VAT Act. Just like Section 21(7), both Section 31(4A) and Section 32(7) of the VAT Act also provide for the consequences of deferment of proceedings. It is convenient to read Section 21(7), Section 31(4-A) and Section 32(7) of the VAT Act in juxta-position with each other.

26. The first limb of both Section 21(7) and Section 31(4A), which provide for the consequences of deferment of assessment and appellate proceedings, would operate only when the power of deferment is specifically conferred on a specified authority/authorities and is exercised by them pursuant to such conferment. A plain and literal reading of the aforesaid provisions make it clear that Section 21(7), Section 32(4A) and Section 32(7) only provide for the consequences of deferment of (i) assessment, (ii) appeal before the Appellate authority, and (iii) revision under Section 32 of the VAT Act respectively. They do not, by themselves, confer on the said authorities the power to defer the proceedings. It is only because Section 32(5) specifically confers such a power, can the Commissioner defer revision proceedings initiated under Section 32(1) & (2) of the VAT Act. The very fact that, while the consequences of deferment of assessment proceedings, appellate proceedings before the Appellate authority and revision proceedings are specifically provided for, but the power of deferment of proceedings is restricted only to revision proceedings under Section 32 of the VAT Act, shows that the legislature has for the present, neither explicitly nor by necessary implication, chosen to confer the power to defer either the assessment proceedings under Section 21 of the VAT Act or the appellate proceedings under Section 31 of the VAT Act.

27. This question can be examined from another angle also. Ambiguity, if any, in a statutory provision can be removed applying the Heydons Rule. The Heydons Rule is that, for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1) what was the common law before the making of the Act/Rules; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy the legislature has resolved to cure; and (4) the true reason of the remedy. The Court is always to make such construction as shall: (a) suppress the mischief and advance the remedy; and (b) suppress subtle inventions and evasions for the continuance of the mischief pro private commando (for private benefit); and (c) add force and life to the cure and remedy according to the true intent of the makers of the Act/Rules pro publico (for the public good). The Heydons rule is applied in order to suppress the mischief which was intended to be remedied as against the literal rule which could have otherwise covered the field. Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others Vs. K. Devi and others, ; Goodyear India Ltd. v. State of Haryana (1997) 116 PLR 252; Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd., ; Halsburys Laws of England, Vol. 44(1), 4th Reissue, para 1474, pp. 906-07; The Bengal Immunity Company Limited Vs. The State of Bihar and Others, ; In re Mayfair Property Company (1898) 2 Ch 28; Eastman Photographic Material Company v. Comptroller General of Patents, Designs and Trade Marks 1898 AC 571; National Insurance Co. Ltd. Vs. Baljit Kaur and Others, .

28. The Heydon''s rule itself is sometimes stated as a primary cannon of construction, sometimes as secondary (i.e. available in the case of an ambiguity). (Maxwell on Interpretation of Statutes; 12th Edn. (1969); Craies on Statute Law; 7th Edn. (1971), pp 94, 96). The rule is available at two stages. The first task of a court of construction is to put itself in the shoes of the draftsman-to consider what knowledge he had and, importantly, what statutory objective he had-if only as a guide to the linguistic register. Here is the first consideration of the ''mischief''. Being thus placed in the shoes of the draftsman, the court proceeds to ascertain the meaning of the statutory language. In this task the first and most elementary rule of construction is to consider the plain and primary meaning, in their appropriate register, of the words used. If there is no such plain meaning (i.e. if there is an ambiguity), a number of secondary canons are available to resolve it. Of these one of the most important is the rule in Heydon''s Rule. Here, then, may be a second consideration of the ''mischief''. (Maunsell v. Olins (1975) 1 All ER 16).

29. Section 14(6) of the APGST Act provided that it shall be lawful for the Commissioner of Commercial Taxes to direct, by general or special order, any assessing authority to defer assessment in respect of any class of goods or any class of dealers pending clarification by it of any question referred to it, if such question has a direct bearing on such assessment. The proviso to Section 21(4) of the APGST Act, which is in pari-materia with the proviso to Section 33(4) of the VAT Act, also enabled the STAT, in certain circumstances, to defer hearing of the appeal before it. Section 14(5) of the APGST Act was identical to Section 21(7) of the VAT Act before its amendment, and similar to Section 21(7) of the VAT Act after its amendment. It is useful to read Section 14(5) of the APGST Act in juxta-position with Section 21(7) of the VAT Act both before, and after, its amendment by Act 21 of 2011.

30. The Legislature, having retained a provision similar to Section 14(5) of the APGST Act in Section 21(7) of the VAT Act, has consciously chosen not to make a provision similar to Section 14(6) of the APGST Act which conferred on the Commissioner the power, in certain circumstances, to direct the assessing authority to defer assessment proceedings. The Commissioner has not been conferred the power to defer assessment proceedings under the VAT Act, and his power is now limited only to defer revision proceedings under Section 32 thereof, that too only in the circumstances referred to, and subject to the limitations prescribed, in sub-section (5) thereof. The Legislature has consciously chosen not to confer on the Commissioner the power to defer assessment proceedings under the VAT Act evidently because, unlike the APGST Act, Sections 20(2) & (4) of the VAT Act provide for self-assessment and, except in the circumstances referred to in sub-sections (3) to (5) of Section 21, no assessment order need be passed under the VAT Act. The Legislative intent is to remedy the mischief which, under Section 14(6) of the APGST Act, enabled the Commissioner to defer assessment proceedings, and thereby ensure that assessment proceedings, under the VAT Act, are not interdicted before its completion, and are completed without hindrance. In the absence of a provision in the VAT Act, similar to Section 14(6) of the APGST Act, none of the authorities under the VAT Act can be said to have been empowered to defer assessment proceedings.

31. Dr. T. Ramesh Babu, Learned Counsel for the petitioner, would submit that, since the Commissioner has also understood Section 21(7) of the VAT Act as conferring on him the power to defer assessment proceedings, this Court should not take a different view. Contemporanea expositio is a well settled principle or doctrine which applies only to the construction of ambiguous language in old statutes, Bakhtawar Singh Bal Kishan Vs. Union of India (UOI) and Ors, , but not in interpreting Acts which are comparatively modern. The Senior Electric Inspector and Others Vs. Laxmi Narayan Chopra and Others, ; J.K. Cotton Spinning and Weaving Mills Ltd. and Anr Vs. Union of India (UOI) and Ors, . Even if persons who dealt with the statute understood its provisions in another sense, such mistaken construction of the statute does not bind the Court so as to prevent it from giving it its true construction. National and Grindlays Bank Ltd. Vs. The Municipal Corporation of Greater, Bombay, ; M/s. Punjab Traders and others Vs. State of Punjab Traders and others, . The understanding of the Commissioner to the contrary notwithstanding, we cannot, without doing violence to the language of Section 21(7) of the VAT Act, read in it a power, having been conferred either on the Commissioner or the STAT, to defer assessment proceedings.

32. It matters little that the Commissioner had rejected the petitioners request for deferment, as he lacks jurisdiction, in the first place, to entertain such an application for deferment of assessment proceedings under Section 21 of the VAT Act. The Writ Petition is devoid of merits and is, accordingly, dismissed. It is made clear that the assessing authority may proceed, pursuant to the show-cause notice issued by him earlier, and pass an assessment order in accordance with law. There shall be no order as to costs. The Miscellaneous petitions, if any, pending in this Writ Petition, shall stand dismissed.