Professional Documents
Culture Documents
66/2008
Asstt Commissioner (AE), Udaipur
Vs.
M/s Raghuveer Construction Company, Udaipur
''7.Applicability of the provisions of the RST Act, 1954 (Act No.29 of 1954) and the rules
made thereunder:-
Subject to the provisions of this Act and the rules made thereunder, the authorities
empowered to assess, reassess, collect and enforce payment of tax under the RST Act, 1954
(Act No.29 of 1954) shall assess, reassess, collect and enforce payment of tax including
penalty or interest payable by an importer under this Act as if the tax, penalty or interest were
payable under the said Act, and for this purpose they may exercise all or any of the powers
assigned to them under the said Act and all the provisions of the said Act and the rules made
thereunder for the time being in force including the provision relating to returns, advance
payment of tax, provisional assessments, recovery of tax, appeals, rebates, penalties, interest,
compounding of offences and other miscellaneous matters shall, mutatis mutandis, apply.”
Of course, the aforesaid Act No.29 of 1954 stands repealed by the Act of 1994 but
even when reference to the Act No.29 of 1954 in the provisions of the Act of 1988 is read as
that to the Act of 1994, the fundamental fact remains that the provisions of the Act of 1988
do not provide for levy of surcharge as contemplated by Section 13 of the Act of 1994. The
authorities empowered under the Act of 1994 even when could assess, reassess, collect and
enforce payment of tax including penalty or interest payable under the Act of 1988 as if the
tax, penalty or interest were payable under the Act of 1994 yet, they can do so subject to the
provisions of the Act of 1988. Neither Section 7 nor any other provision in the Act of 1988
envisage levy of surcharge on the tax payable thereunder. Levy of surcharge under Section 13
of the Act of 1994 is on the amount of tax or on the sum in lieu of tax payable under the Act
of 1994; and such provision cannot be read into the Act of 1988.
Learned counsel for the petitioner endeavoured to argue that when the authorities
dealing with the assessment, collection and enforcement of tax under the Act of 1994 could
assess, reassess, collect, and enforce payment of tax under the Act of 1988; and the definition
of ''tax'' as contained in the Act of 1994 means any tax or other levy by any name leviable
under the provisions of the Act of 1994, levy of surcharge ipso facto gets included as a
component of levy under the Act of 1988. The argument is not correct. The definition as
contained in Clause (i) of Sub-section (1) of Section 2 of the Act of 1988 makes it clear that
for the purpose of the Act of 1988 ''tax'' means the tax payable under this Act. Levy of
surcharge is not envisaged by any of the provisions of the Act of 1988. The Appellate
Authorities have rightly set aside such a levy of surcharge in the present case.
There is no force in this revision petition and the same is, therefore, dismissed
summarily.
(DINESH MAHESHWARI), J.
s.soni