1978 (8) TMI 188 - HC - VAT and Sales Tax

Summary

Issues:
Challenge to constitutionality of section 40 of the Haryana General Sales Tax Act, 1973 - Prospective and retrospective operations, Order of Deputy Excise and Taxation Commissioner set aside by Assessing Authority, Appeal against the order, Validity of retrospective operation of section 40.

Analysis:
The writ petition involved a challenge to the constitutionality of section 40 of the Haryana General Sales Tax Act, 1973, both prospectively and retrospectively. The primary grievance of the petitioners was centered around the order of the Deputy Excise and Taxation Commissioner, Ambala, which set aside the assessment order of the petitioners and remanded the case for fresh assessment. The Assessing Authority had initially assessed a nominal sum of tax and penalty against the petitioners, which was later questioned by the Deputy Excise and Taxation Commissioner, leading to a remand for further assessment.

The constitutionality of section 40 of the Act was challenged in the writ petition. However, the counsel for the petitioners failed to raise any substantial contention against the validity of the provision. The revisional powers conferred by section 40 were found to be in line with similar provisions in other statutes and were deemed beyond serious challenge. The counsel then argued against the retrospectivity of the provision, citing its enactment in 1973 with retrospective effect from 1968. The court clarified that legislative power includes the authority to legislate retrospectively, subject to constitutional limitations, and the counsel conceded that there was no valid argument against the retrospectivity of the provision.

The court emphasized that since the impugned order was appealable, the petitioners were required to pursue their ordinary remedy through an appeal rather than seeking extraordinary relief through a writ petition. The court dismissed the writ petition, stating that the petitioners were not entitled to relief through the writ court and should follow the statutory appeal process available to them. The judgment highlighted the availability of a hierarchy of appeals and revisions provided by the statute for challenging the original assessment order, ultimately dismissing the writ petition as misconceived and ordering costs to be paid by the petitioners.

The judgment also noted that the position in connected Civil Writ Petitions was identical to the present case and would be governed by the same decision. Consequently, all related writ petitions were dismissed in line with the judgment, reaffirming the dismissal of the original writ petition.