TaxTMI 
TaxTMI 
2020 (11) TMI 20
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....5% over seven years from 9/3/2007 except for thermal power plants was allowed. By order dated 28/2/2011, the petitioner department determined the base tax for the year 2005-2006 and allowed the amount of subsidy over and above Rs. 1,70,15,001 after considering the submissions and material on record. Whereafter, the Commercial Taxes Officer (Special Circle) passed orders dated 1/12/2012, 27/2/2013, 29/3/2013 and 21/6/2013 allowing the subsidy to the assessee under RIPS, 2003 for various quarters i.e. from 1/4/2011 to 30/6/2011, 1/7/2011 to 30/9/2011, 1/10/2011 to 31/12/2011 and 1/1/2012 to 31/3/2012. On 27/5/2016 the department issued show cause notices under Sections 26 and 55 of the RVAT Act, 2003, for changing the base tax payable by the assessee. The assessee submitted reply to the show cause notices. On 22/6/2016, the department passed final order under Section 26 and 55 of the RVAT Act, 2003 read with Clause 9 (B)(viii) and 10 of the RIPS, 2003, whereby, the interest subsidy allowed to the assessee for various quarters was modified and the demand along with interest was created. Feeling aggrieved the assessee filed appeals before the appellate authority, Commercial Ta....
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....en made applicable, which necessarily means that the provisions of Section 26 and 33 of the RVAT Act, 2003 are also attracted in the cases under RIPS, 2003 and, therefore, the determination made by the Tax Board by holding that at the relevant time the provisions of RVAT Act, 2003 were not applicable to the RIPS, 2003, cannot be sustained. It was submitted that a bare look at the Amendment, 2018 would reveal that the RIPS, 2003 itself has been amended by introducing Clause 9A and, therefore, the objection, if any, has no basis and, consequently the judgment passed by the Tax Board deserves to be quashed and set aside. Reliance was placed on Sree Bank Ltd. Vs. Sarkar Dutt Roy & Company : AIR 1966 SC 1953, State of Karnatake vs. Hansa Corporation : AIR 1981 SC 463 and Commissioner of Income Tax, Calcutta vs. National Taj Traders : AIR 1980 SC 485. Further submissions were made that once the Tax Board had come to the conclusion that the Assessing Officer had no jurisdiction to pass the order impugned, there was no occasion for the Tax Board to have gone into the merits of the dispute raised inasmuch as, the same has created a precedent, which was not necessary for adjudicatio....
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....rm 'tax payable' by including the amount of 'partial exemption' granted under the CST Act cannot be sustained. It was submitted that the judgment passed by the Tax Board does not call for any interference and the revision petitions deserve to be dismissed. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. The facts are not in dispute, whereby, initially under the RIPS, 2003 the orders were passed determining the amount of subsidy to the respondent assessee by orders dated 1/12/2012, 27/2/2013, 29/3/2013 and 21/6/2013 for four quarters beginning from 1/4/2011 and ending with 31/3/2012. Whereafter, a notice under Section 26 of the RVAT Act, 2003, which pertains to escaped assessment was issued on 27/5/2016 and after hearing the assessee, the Commercial Taxes Officer, Special Circle-II, Bhilwara by its order dated 22/6/2016 came to the conclusion that the assessee was allowed excess subsidy based on its interpretation of the words 'tax payable' in the Scheme and consequently raised the demand along with interest. The appellate authority on appeals filed by the assessee, negated all the objections raise....
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....IPS, 2003. Subsequently, in the Schemes of 2010 and 2014 in clauses relating to procedure for disbursement of subsidy, the following provisions were specifically incorporated: "Any order passed under this clause by the Assistant Commissioner/Commercial Taxes Officer shall be subject to the provisions of the Rajasthan Value Added Tax Act, 2003, the Central Sales Tax Act, 1956 and rules made there under. The provisions of Recovery and Appeal in the said Act(s) shall apply mutatis mutandis for such orders." It need not be emphasized that the introduction of said provision in the subsequent Schemes, making applicable the provisions of RVAT Act, 2003, highlights the stark absence of similar provision in RIPS, 2003. The important development is the amendment made in RIPS, 2003 in the year 2018 vide order dated 30/4/2018, whereby, several amendments were introduced to the RIPS, 2003 and insofar as relevant for the present purpose, its clause 5 reads as under: "5. Insertion of Clause 9A.- After the existing sub-clause (C) of clause 9 and before the existing clause 10 of the scheme, the following new clause 9A shall be inserted, with effect from 01.07.2017, namely....
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.... introduce amendment in RIPS, 2003 in the year 2018 and once the amendment has been introduced, it cannot be said that by dint of provisions indicated in RIPS, 2010 and RIPS, 2014, the provisions would be applicable to RIPS, 2003 as well. Further, as already noticed hereinbefore, the retrospectivity of the amendment 2018, if any, has been limited to w.e.f. 1/7/2017 and not prior to it. Once the amendment itself indicates the extent of retrospectivity, the department cannot be heard to claim that the retrospectivity is beyond what has been indicated in the amendment, as such the plea sought to be raised regarding applicability of RVAT Act, 2003 to RIPS, 2003 prior to 1/7/2017 cannot be accepted. The law on the aspect is well settled that if the right of the assessing authority to reopen the assessment is barred under the law for the time being in force, no subsequent enlargement of right can revive such right in the absence of express words or necessary intendment (see S.S.Gadgil v. Lal & Co. : AIR 1965 SC 171). Further, in State of Tamil Nadu vs. M/s Star Tobacco Co. : AIR 1973 SC 1387, it was laid down by the Supreme Court that jurisdiction to reopen the assessment is not....
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...., 2014 and amendment brought in 2018 to RIPS, 2003 from before 1/7/2017, the same have no application to the facts of the present case. The judgment in the case of Monnet Ispat and Energy Ltd. (supra) cited by learned counsel for the respondent, in view of express provisions in the amendment 2018, need not detain the Court to dwell on the law laid down in the said judgments. In view of the above discussion, it is apparent that the findings arrived at by the Rajasthan Tax Board pertaining to lack of jurisdiction in the assessing officer on account of non-applicability of provisions of RVAT Act, 2003 to RIPS, 2003, at the relevant time, cannot be faulted. So far as the determination made by the Tax Board regarding the merits of the order of reassessment is concerned, the law is well settled that notwithstanding that a matter may be disposed of on a preliminary issue, the authority must pronounce judgment on all issues. The exception being that if the matter can be disposed of on an issue of law pertaining to jurisdiction or bar created by law, the matter can be dealt with in accordance with decision on such issue. As such, it was not necessary for the Tax Board to deal wi....
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