TaxTMI 
TaxTMI 
2024 (11) TMI 284
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....statute which now stands repealed by virtue of the Delhi Value Added Tax Act, 2004 [DVAT Act] and which came to be promulgated on 01 April 2005. Mr. Aggarwal, learned counsel appearing for the respondents, would contend that in light of the provisions enshrined in Section 106 of the DVAT Act, the appellants would have been legally obliged to approach the Appellate Tribunal for drawing up a 'statement of case' for the consideration of this Court and that the appeals which have come to be directly instituted would not be maintainable. According to learned counsel, while the issue of maintainability of the instant appeals and identical questions would appear to have been ostensibly considered and answered in favour of the appellants, those judgments are clearly distinguishable since none of them have engaged with the provisions which came to be introduced in Section 106 by virtue of the DVAT (Amendment) Act, 2012 [2012 Amendment] and which saw sub-section (4) coming to be incorporated therein, with retrospective effect from 01 April 2005. According to Mr. Aggarwal, since these appeals pertain to a tax period prior to 01 April 2005, it is the stipulated procedure enshrined in Section 4....
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....n containing the grounds on which such decision is founded, and shall send to the Appellate Tribunal a copy of such judgment under the seal of the Court and the signature of the Registrar, and the Appellate Tribunal shall dispose of the case accordingly. (6) Where a reference is made to the High Court under this section, the costs [which shall not include the fee referred to in sub-section (1)] shall be in the discretion of the Court. (7) The payment of the amount of tax and penalty (if any) due in accordance with the order of the Appellate Tribunal in respect of which an application has been made under sub-section (1) shall not be stayed pending the disposal of such application or any reference made in consequence thereof but if such amount is reduced as a result of such reference, the excess tax paid shall be refunded in accordance with the provisions of section 30." 3. The provision of appeal under the DVAT Act stands comprised in Section 81 and is constructed in the following terms: "81. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed by the Appellate Tribunal in appeal under this Act, if the High Court is ....
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....ore of the other judges of the High Court and such point shall be decided according to the opinion of the majority of the judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." 4. Section 106 of the DVAT Act represents the repeal and savings clause and is reproduced below: "106. Repeal and savings. - (1) The Delhi Sales Tax Act, 1975 (Act 43 of 1975), the Delhi Tax on Entry of Motor Vehicles into Local Areas Act, 1994 (Delhi Act 4 of 1995), the Delhi Sales Tax on Works Contract Act, 1999 (Delhi Act 9 of 1999), and the [Delhi Sales Tax on Right to Use Goods Act, 2002 (Delhi Act 13 of 2002)] as in force in Delhi (referred to in this section as the "said Acts"), are hereby repealed. (2) Notwithstanding sub-section (1) of this section, such repeal shall not affect the previous operation of the said Acts or any right, title, entitlement, obligation or liability already acquired, accrued or incurred thereunder. (3) For ....
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....rt has laid down that though the right of appeal is a vested right/substantive right, however the forum with respect to exercise of such right of appeal is not a vested right. It was held in the said case that the forum of filing of an appeal is a procedural matter and the Savings clause in a repealing statute and Section 6 of the General" Clause Act has nothing to do with the forum where the remedy of appeal has to be pursued. The forum of appeal was thus held only to be a procedural matter and not a substantive or a vested rights issue. In the second case of P. Mohd. the appeal instead of being heard by the two Judges of the High Court was heard by a Single Judge and it was held that there is no vested right in getting the matter heard by two Judges. It was held that the hearing of an appeal, whether by one Judge or by two Judges is merely a matter of procedure. 9. In view of the above, when we examine the provision of appeal under Section 81 of the Delhi VAT Act and the provision of reference under Section 45 (1) and 45 (2) of the Delhi Sales Tax Act, it becomes clear that no vested right has been taken away by passing of the Delhi VAT Act and in fact only the forum has....
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..... It becomes pertinent to note that although the Court in Shiv Shakti Kirana Kendra had noticed Section 106 of the DVAT Act, it had no occasion to examine the scope of sub-section (4) which came to be introduced in that provision subsequently in terms of the 2012 Amendment, albeit with retrospective effect from 01 April 2005. 7. The second decision which would merit consideration was the judgment of the Court rendered on a Review Petition in Kumagai Skanska HCC Itochu Group vs. The Commissioner of Value Added Tax & Anr. 2014:DHC:2330-DB ['Kumagai I']. It would appear that the Court, by its judgment dated 22 May 2012, had initially taken the view that a revision under the DVAT Act initiated after 01 April 2005 would be governed by the period of limitation of four years as constructed in terms of Section 74A (2) (b) thereof. The Court in terms of its original judgment had negatived that contention and held that the period of limitation would be governed by Section 46 of the repealed DST Act. However, on the Review Petition, the attention of the Court was specifically invited to sub-section (4) of Section 106 of the DVAT Act, and which was inserted in that provision after the origi....
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....resuscitate or resurrect the long-dead revisionary power conferred on the Commissioner under Section 46 of the DST Act. It had no retrospective effect." The said Special Leave Petition ('SLP') filed by the Department against the aforesaid judgment was disposed of by the Supreme Court by its order dated 31st March 2008 with the observation that "the larger issue regarding the applicability of the Delhi Value Added Tax Act, 2004 as also question of repeal of the Delhi Sales Tax Act and related issues discussed in the impugned judgment of the High Court are kept open." 15. It may be also noticed at this stage that with retrospective effect from 1st April 2005 sub-section (4) in Section 106 of the DVAT Act was introduced. Section 106 was the 'repeal and savings' provision. Section 106 (4) stated that notwithstanding anything contained in the DVAT Act, for the purpose of levy, assessment, deemed assessment, reassessment, appeal, revision, review etc. which relates to any period ending before 1st April 2005 "the repealed Act, and all rules, regulations, orders, notifications, forms and notices issued thereunder and in force immediately before 1st day of April 2005 shall continue....
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....ntention of the Legislature must be absolutely clear whether it intends to destroy the old liabilities and it would depend upon the entire scheme of the Act. (iv) An order of assessment is final subject to the provisions relating to appeal, revision, reassessment and rectification. (v) A statute is not to be interpreted to be retrospective or retroactive to touch the existing final orders. (vi) Even if no action is taken under the repealed Act, the civil as well as the criminal liability that had incurred under the repealed statute are not obliterated and are kept alive if there is a saving provision. (vii) A legal proceeding which could have been initiated under the repealed Act continues to subsist if the savings and repeal provision so stipulates subject to the law of limitation. To elaborate, the right to initiate a legal proceeding can only be obliterated or effaced or meet its legal death if the period of limitation thereon has expired. 66. Regard being had to the aforesaid principles the Scheme of section 106 of the DVAT Act is required to be scanned. The basic facet of section 106 of the DVAT Act has to be interpreted on the touc....
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.... attained finality and become a vested or ripened right after the expiry of the period of limitation under the DST Act and if the proceedings are initiated within the period of limitation, the exercise of the suo motu power of revision cannot be treated as illegal. In other words, if the time to exercise the revisionary power had not expired before coming into force of the DVAT Act, the said power could be exercised in respect of an order under the DST Act in terms of section 74A of the DVAT Act read with section 106 of that Act. 68. Turning to the previously mentioned three categories of cases, in the first category of cases, wherein assessment has been completed and already revised, by virtue of the language employed in section 106 (3) of the DVAT Act, the order passed has to be considered as an order passed under the DVAT Act. In the second category of cases, wherein assessment has been completed and revisional power has been invoked though the process is not completed, the assessee has incurred the liability of the order of the assessing officer being scrutinized by the Commissioner which includes the revisional power and sub-section (3) gets attracted. In the third ca....
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...., as the legislative intendment was clear that on the date the Act came into force the provision pertaining to exercise of suo motu revisionary power did not exist in respect of the proceedings under the DST Act as the assessment had attained finality and were closed, is incorrect. (c) The order of assessment framed under the DST Act is deemed to be an order framed under the DVAT Act and on reading of sections 106 (2) and 106 (3) in a conjoint manner, it is not correct to state that once the order of assessment has been passed, the transaction is closed and, therefore, the assessment/order is not revisable under section 74A of the DVAT Act. (d) The liability incurred or accrued under the DST Act has a larger expanse and a broader canvas and it would in view of section 106 (2) of DVAT Act include initiation of any legal proceeding which is permissible within the period of limitation and till then no final or vested right accrues in favour of the assessee. (e) The amendment brought by the Legislature retrospectively incorporating section 74A with effect from April 1, 2005 has been done to further elucidate the legislative intention and has to be given full ....
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.... already acquired, accrued or incurred under the repealed legislation survived. The authorities under the Delhi VAT Act have replaced the authorities created under the Delhi Sales Tax Act. The remedies of appeal against orders of such authorities, thus, are available through the machinery created by the new law. 3. It must also be added here that in the regime governed by Delhi Sales Tax Act, there was no provision of appeal to the High Court. The appeals under the said law would lie only before the Appellate Tribunal. After adjudication on the appeal by such Tribunal, the aggrieved party (the dealer or the Commissioner) could, however, request for a reference to the High Court under Section 45 on question of law. However, the new law (Delhi VAT Act) having now provided for a second appeal (Section 81) to the High Court against orders of the Appellate Tribunal, though confined to substantial questions of law, the impugned order having been passed by the Appellate Tribunal (constituted under Section 76 of Delhi VAT Act) after coming into force of the new law, the appeal has been entertained by this court. 4. A view to above effect was taken by another Division Benc....
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....r as appeals to the High Court are concerned, lies in the fact that a person aggrieved, now and post the promulgation of the DVAT Act, is entitled to approach the High Court directly as opposed to petitioning the Tribunal for drawing up a 'statement of case' and referring the same to the Court. 15. The objection of the respondents, however, is founded on Section 106 (4) of the DVAT Act, with it being submitted that since these appeals pertain to a period prior to 01 April 2005, it is the course as stipulated by Section 45 of the DST which would have to be adhered to. 16. As we view Section 106, we find that sub-section (1) thereof declares in explicit terms that the DST Act stands repealed. Section 106 (2) constitutes the first of the saving clauses forming part of that provision and which declares that the repeal of the DST Act would not affect the previous operation of that Act or impact any right, title, entitlement, obligation or liability already acquired, accrued or incurred thereunder. Section 106 (2) thus incorporates principles which are broadly spoken of in Section 6 of the General Clauses Act, 1897. By virtue of that provision, all rights, title, entitlements, obli....
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....he Supreme Court in Gammon India Ltd. vs. Spl. Chief Secy. (2006) 3 SCC 354. We deem it apposite to extract the following passages from that decision: "38. In Pentheny, Ltd. v. Govt. of Virgin Islands [360 F. 2d 786 (3rd Cir. 1966)] the US Court of Appeals has observed as under: "Simultaneous repeal and re-enactment of substantially the same statute, or part thereof, is a substitution and not a repeal, and the statute, or part thereof, thus substituted is construed as a continuation of the original provisions to the extent re-enacted and jurisdiction of administrative agency under such statute is not disturbed as to those provisions which were continued under the new statute." xxxx xxxx xxxx 46. The principle which has been laid down in this case is that whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the....
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.... 6 of the General Clauses Act, namely, is to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. xxxx xxxx xxxx 71. Since the effect of a repeal is to obliterate the statute and to destroy its effective operation in future, or to suspend the operation of the common law, when it is a common law principle which is abrogated, any proceedings which have not culminated in a final judgment prior to the repeal are abated at the consummation of the repeal. When, however, the repeal does not contemplate either a substantive common law or statutory right, but merely the procedure prescribed to secure the enforcement of the right, the right itself is not annulled but remains in existence enforced by applying the new procedure." 22. Undisputedly, the DVAT Act is a cognate statute, similar to the DST Act. The DVAT Act, as its Preamble itself states, constitutes a consolidating legislation relating....
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....nserted in the Section 81 through the Delhi Act 12 of 2010 which took effect from 1st February 2011. While the intended purpose of the amendment was to make the provision applicable to some appeals which were dismissed by the High Court for delayed filing, before the amendment, the earlier amendment can achieve its useful purpose/objective only if the amendment is given effect retrospectively, which is being attempted through the proposed amendment in section 81. To provide for a specific saving clause in respect of the power of revision under the Delhi Sales Tax Act, 1975, section 106 of the Delhi Value Added Tax Act, 2004 is proposed to be amended on the suggestion of the Additional Solicitor General of India. The Bills seek to achieve the aforesaid objectives. (SHEILA DIKSHIT) CHIEF MINISTER / MINISTER OF FINANCE NEW DELHI" 24. As is evident from the above, Section 106 (4) appears to have been introduced with the primary objective of inserting a specific savings clause in respect of the power of revision which otherwise existed under the DST Act. Viewed in that light, it becomes manifest that Section 106 (4) was clearly not intended to regu....