TaxTMI 
TaxTMI 
2005 (2) TMI 785
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.... under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act") and is being assessed by the Assessing Authority, Yamuna Nagar. For the assessment year 1998-99, the petitioner company had returned a gross turnover of Rs. 20,65,04,077. As per the return, tax liability of the petitioner-company was Rs. 40,89,786. However, by taking into account the fact that it had already paid tax amounting to Rs. 1,26,01,520 which was deducted at source by the contractees, it filed application for refund of Rs. 81,11,734. Return filed by the petitioner-company accepted by the Assessing Authority vide order annexure P1 and refund granted in terms of the prayer made. After more than four years of the finalisation of the assessment, respondent No. 2 issued notice dated June 7, 2004 (annexure P2) to the petitioner-company to show cause against the proposed refund of the order on the following grounds: "(a) you have filed wrong returns and the assessment has been framed wrongly by taking only the cost price of the material used in the works contract for the purpose of assessment. The returns and the assessment should have been framed according to the law laid down by the h....
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.... behalf of the petitioner-company, respondent No. 2 passed order dated July 12, 2004 (annexure P5) whereby he revised the See [2003] 130 STC Statutes (Suppl. B) 224. assessment order and declared that a sum of Rs. 65,35,632 was recoverable from it. 4. The petitioner-company has challenged the order, annexure P5, mainly on the grounds which were taken by it in the reply to the show cause notice. 5. In the written statement filed on behalf of the respondents, an objection has been taken to the maintainability of the writ petition on the ground that the petitioner-company has failed to avail the alternative remedy of appeal available under section 39 of the 1973 Act. The repeal of the 1973 Act by enactment of the VAT Act with effect from April 1, 2003 has not been disputed by the respondents. However, the respondents have relied upon a division Bench judgment of this Court in Khazan Chand Nathi Ram v. State of Haryana [2004] 136 STC 261 and the provisions of section 4 of the Punjab General Clauses Act, 1898 (for short, "the General clauses Act"). On the basis of the aforesaid pronouncement in Khazan Chand Nathi Ram's case [2004] 136 STC 261 (P&H) as well as provisions of Gen....
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....ion, the aggrieved party may not be relegated to the alternative remedy of appeal, etc. In the present case, the petitioner has challenged the impugned order mainly on the ground that respondent No. 2 did not have the jurisdiction to initiate the proceedings under the 1973 Act. Therefore, we do not find any justification to non-suit it on the ground of availability of alternative remedy. 9. On merits, Shri. K.L. Goyal submitted that order dated May 12, 2000 had attained finality, inasmuch as, the same was not subjected to revision under section 40 of the 1973 Act till that Act was repealed by the VAT Act and argued that after coming into force of the new Act, respondent No. 2 could not exercise revisional power under section 40 of the 1973 Act. He distinguished the judgment in Khazan Chand Nathi Ram's case [2004] 136 STC 261 (P&H) by pointing out that the question considered and decided in that case relates to the right of the aggrieved party to avail the remedy of appeal under the 1973 Act. He drew distinction between a right of appeal available to the suitor and power of revision which could be exercised by competent authority and argued that after repeal of the 1973 Act, ....
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....Co-op. Housing Society's case (2003) 6 SCC 659 by arguing that the said judgment turned on the interpretation of section 115 of the Code of Civil Procedure and ratio thereof cannot be applied to the present case. In support of this argument, Shri Jaswant Singh relied on the judgment of Siemens India Ltd. v. State of Maharashtra [1986] 62 STC 40 (Bom). In the end, he argued that the proceedings initiated by respondent No. 2 cannot be treated as time-barred because limitation for exercising power under section 40 of the 1973 Act is five years. 11. We have given our thoughtful and anxious consideration to the rival contentions of the learned counsel for the parties. With the able assistance of the learned counsel, we have also gone through the various provisions of law, judgments cited at the bar and the record of the present case. 12. Before dilating on various contentions raised by the learned counsel for the parties, we consider it proper to notice the relevant extracts of the provisions of various enactments necessary for adjudication of the present controversy. The same read as under: Haryana General Sales Tax Act, 1973: "Section 39: Appeal. (....
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....tisfaction of the appellate authority: Provided further that in the case of an appeal against any order which has to be communicated by the appropriate authority to the appellant, the period of sixty days shall commence from the date of receipt of the copy of the order by the appellant and in the case of an appeal against any other order made under this Act, the time spent in obtaining the certified copy of the order shall be excluded in computing the period of sixty days. (6) Subject to regulations made by the Tribunal under sub-section (10) of section 4 and subject to such rules of procedure as may be prescribed in relation to an appellate authority other than the Tribunal, an appellate authority may pass such order on appeal as it deems to be just and proper, including an order enhancing the amount of tax or penalty or interest or all under this Act. (7) An Assessing Authority may challenge in appeal before the Tribunal, the order of the officer on whom the State Government has conferred the powers of the Commissioner under sub-section (2) of section 40, within one year from the date of the order appealed against." Section 4 Revision.....
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....ludes an assessing authority and a revising authority but does not include an appellate authority; XX XX XX XX XX XX XX XX "Section 34: Revision. (1) The Commissioner may, on his own motion, call for the record of any case pending before, or disposed of by, any taxing authority for the purposes of satisfying himself as to the legality or to the propriety of any proceeding or of any order made therein which is prejudicial to the interests of the State and may, after giving the persons concerned a reasonable opportunity of being heard, pass such order in relation thereto as he may think fit: Provided that no order passed by a taxing authority shall be revised on an issue which on appeal or in any other proceeding from such order is pending before, or has been settled by, an appellate authority or the High Court or the Supreme Court, as the case may be: Provided further that no order shall be revised after the expiry of a period of three years from the date of the supply of the copy of such order to the assessee except where the order is revised as a result of retrospective change in law or on the basis of a decision of the Tribuna....
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....such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed." 14. We shall now refer to some of the judicial precedents which have bearing on the question arising in these petitions. In Man Mohan Lal v. B.D. Gupta (1962) 64 PLR 51, a division Bench of this Court held as under: "The words 'all suits and other proceedings' in sub-section (2) of this section (section 57 of the Delhi Rent Control Act, 1958) are sought to be interpreted in two different ways by the learned counsel for the parties. Mr. Hardyal Hardy, learned counsel for the petitioners, urges that these words also include appeals and revisions, whereas Mr. R.S. Narula, learned counsel for the respondents, contends that they do not. These words have been interpreted by two learned Judges of this Court also in two different ways. In Shri Krishna Aggarwal v. Satya Dev (1959) 61 PLR 574, Bishan Narain, J., has held that these words refer only to the original proce....
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....n the judgment of the lower appellate court, this Court may well refuse to interfere in revision if it feels that substantial justice has been done between the parties. No revision, whether it is under the Civil Procedure Code or any other law, can, in these circumstances be treated as a rehearing of the suit inasmuch as the party itself has no right to have such a rehearing." (emphasis supplied). 15. Section 35(1) of the Delhi and Ajmer Rent Control Act, 1952 came to be examined by the apex Court in the case of Hari Shankar v. Rao Girdhari Lal Chowdhury AIR 1963 SC 698 and it was observed that there is a real distinction between an appeal and a revision. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code of Civil Procedure but the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. The following observation from Hari Shankar's case AIR 1963 SC 698 may be noticed: "The distinction between an appeal an....
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....law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj (1938) 40 Bom. L.R. 125 (AIR 1938 Bom. 223) where the learned Chief Justice, dealing with section 25 of the Provincial Small Cause Courts Act, observed: 'The object of section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the court which made the order had no jurisdiction, or in which the court has based its decision on e....
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....cope and content. When it introduced the familiar concepts of appeal and revision, it is also reasonable to assume that the well-known distinction between these two jurisdictions was also accepted by the Legislature. There is an essential distinction between an appeal and a revision. The distinction is based on differences implicit in the said two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision." 18. The distinction between a right of appeal and the existence of a power of revision has also been examined in a recent judgment by the apex Court in Shiv Shakti Co-op. Housing Society's case (2003) 6 SCC 659. The relevant observations of the Supreme Court in the aforementioned case may be noticed as follows: "13. First aspect that has to be considered is the res....
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....ourt below. It seems absurd to denominate this paramount right part of the practice of the inferior Tribunal'. (Per Lord Westbury, See: Attorney General v. Sillem (1864) 33 LJ Ex 209; 10 LT 434; 11 ER 1200). The appeal, strictly so called, is 'one in which the question is, whether the order of the court from which the appeal is brought was right on the materials which that court had before it.' (Per Lord Devuil, Ponnamma v. Arumogam (1905) AC 383 (PC), 390. The right of appeal, where it exists, as a matter of substance and not of procedure [Colonial Sugar Refining Co. v. Irving (1905) AC 369 (PC)]. 17. Right of appeal is statutory. Right of appeal inhered in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in State of Kerala v. K.M. Cheria Abdulla and Co. [1965] 16 STC 875 (SC); AIR 1965 SC 1585, the distinction between right of appeal and revision is based on different implicit in the two expressions. An a....
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....hakti Co-op. Housing Society's case (2003) 6 SCC 659, is fully attracted to the distinction of those powers in 1973 Act as well. In any case, the law laid down by the division Bench in Man Mohan Lal's case (1962) 64 PLR 51 and by the apex Court in Hari Shankar's case AIR 1963 SC 698 and by the Full Bench of this Court in Chanan Dass's case 1967 PLR 1, coupled with the observation in K.M. Cheria Abdulla's case [1965] 16 STC 875 (SC); AIR 1965 SC 1585 leave no manner of doubt that the distinction sought to be drawn by Shri Jaswant Singh with regard to the application of Shiv Shakti Co-op. Housing Society's case (2003) 6 SCC 659, is wholly illusory. As a matter of fact, we have also noticed and reproduced above, section 35 of Delhi and Ajmer Rent (Control) Act, 1952. The said provision is couched in similar language as section 40 of the 1973 Act and can almost be deemed to be in pari materia with the provision of section 40 of the 1973 Act. The observations made in the aforesaid cases are fully attracted to the controversy in question. 20. At this stage, we may also notice the law laid down by a division Bench of this Court in Khazan Chand Nathi Ram's ca....
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....as a right to file appeal under the Haryana General Sales Tax Act, with a liability or obligation to pre-deposit the amount of tax, interest and penalty. Such obligation or liability confers a right in favour of the State to insist upon pre-deposit of tax, interest or penalty. From the judgments of the honourable Supreme Court in Hoosein Kasam Dada's case [1953] 4 STC 114 and Garikapati Veeraya's case AIR 1957 SC 540, it is apparent that the right of appeal is a vested right and accrues to the litigant and exists as on and from the date of lis commences. Such right is actually exercised when the adverse judgment is pronounced. Such right is to be governed by the law prevailing on the date of the institution of the suit or proceeding and not by the law that prevails on the date of its decision or at the date of the filing of the appeal. 36. In civil proceedings, lis commences on the presentation of the plaint or in cases claiming compensation under the Motor Vehicles Act on filing claim application. The question is when lis can be said to commence under the taxation laws. Section 25 of the Haryana General Sales Tax Act enjoins a duty upon an assessee to file quarter....
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....was pending on the date of coming into force of the aforesaid enactment. 22. We may now advert to the judgment of the Bombay High Court in Siemens India Ltd. v. State of Maharashtra [1986] 62 STC 40. In that case, a division Bench of the Bombay High Court, after considering the relevant statutory provisions, held: "12. The right of the Commissioner to initiate suo motu revision proceedings in respect of an assessment order is similar to a right of appeal in this context though it may differ from a right of appeal in other regards. At the time when the assessment proceedings are initiated the assessee has a right to have these proceedings finalised in accordance with substantive law then in force. This would include a right to file an appeal if prescribed under the law then in force. It would also include a right to apply for revision or a liability to have the order revised in accordance with the substantive law then in force. But if under the law in force at the date of initiation of assessment proceedings a time-limit is prescribed within which the right of revision has to be exercised, is such time-limit a part of the substantive law or is it a procedural law?" 23....