9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2005 (2) TMI 785 - HC - VAT and Sales TaxMaintainability of the writ petition - petitioner-company has failed to avail the alternative remedy of appeal available u/s 39 of the 1973 Act - Whether the revisional authority continues to have any power to initiate proceeding with regard to assessment orders which had attained finality prior to the commencement of the VAT Act and when no lis was pending on the date of coming into force of the aforesaid enactment - HELD THAT - One of the exceptions carved out by the Courts is that if the order under challenge is per se without jurisdiction, 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. Even otherwise, we find that section 40 of the 1973 Act merely conferred a power on the revisional authority giving suo motu powers to the revisional authority. No corresponding right was conferred upon the department to file a petition seeking revision of the order. An enabling provision in a statute conferring certain power upon a competent authority cannot be taken to be any right, much less a vested right in favour of a suitor-department. We shall now deal with the provisions of section 4 of the General Clauses Act, 1898. A reading thereof shows that unless a different intention appears, the repeal does not affect any right, privilege or obligation or any legal proceedings or remedy in respect of any such right, privilege, obligation, liability, etc. By virtue of section 61 of the VAT Act, the Legislature, while repealing the 1973 Act, saved the pending application, appeal, revision and other proceedings made or preferred to any authority under that Act and transferred the same for disposal by the officer or authority, who would have had jurisdiction to entertain such application, etc., under the new Act. It is, thus, clear that while enacting section 61 of the VAT Act, a different intention has been expressed by the Legislature. Thus, the effect of the aforesaid repealing clause clearly excludes operation of section 4 of the General Clauses Act. Therefore, that section cannot come to the rescue of the State for defending the action taken by respondent No. 2. Thus, we do not consider it necessary to deal with other points raised by the counsel for the parties. In the result, the writ petitions are allowed. Orders dated December, 2000, passed by respondent No. 2 are quashed. However, the parties are left to bear their own costs. Writ petitions allowed.
Issues Involved
1. Jurisdiction of the Revisional Authority under the repealed 1973 Act. 2. Maintainability of the writ petition in the presence of an alternative remedy. 3. Limitation period for revisional proceedings. 4. Interpretation of the Haryana General Sales Tax Act, 1973, and the Haryana Value Added Tax Act, 2003. 5. Applicability of Section 4 of the Punjab General Clauses Act, 1898. Issue-wise Detailed Analysis 1. Jurisdiction of the Revisional Authority under the repealed 1973 Act The petitioner-company contested the notice issued by respondent No. 2, arguing that after the repeal of the 1973 Act by the VAT Act, respondent No. 2 did not have jurisdiction to initiate proceedings under the old Act. It was claimed that no proceedings were pending or deemed to be pending on April 1, 2003, the date of commencement of the VAT Act. The respondents, however, relied on a division Bench judgment in Khazan Chand Nathi Ram v. State of Haryana and the provisions of Section 4 of the Punjab General Clauses Act, 1898, to argue that any right, privilege, liability, or obligation under the old law continued to be governed under the old law, thereby granting jurisdiction to respondent No. 2. 2. Maintainability of the writ petition in the presence of an alternative remedy The respondents raised an objection to the maintainability of the writ petition, arguing that the petitioner-company had failed to avail the alternative remedy of appeal available under Section 39 of the 1973 Act. The court noted that the rule against entertaining writ petitions when an effective alternative remedy is available is a rule of self-imposed restraint and not a statutory rule. Exceptions to this rule include cases where the order under challenge is per se without jurisdiction. Given that the petitioner challenged the jurisdiction of respondent No. 2, the court found justification to entertain the writ petition despite the availability of an alternative remedy. 3. Limitation period for revisional proceedings The petitioner argued that the order dated May 12, 2000, had attained finality and could not be subjected to revision after the repeal of the 1973 Act. The petitioner further contended that, even if the revisional power could be exercised, the proceedings initiated in 2004 were barred by limitation as per the VAT Act, which prescribes a three-year limitation period. The respondents, however, argued that the limitation period for revisional proceedings under the 1973 Act was five years, and thus the proceedings were initiated within the permissible time frame. 4. Interpretation of the Haryana General Sales Tax Act, 1973, and the Haryana Value Added Tax Act, 2003 The court examined the relevant provisions of both the 1973 Act and the VAT Act. It noted that Section 40 of the 1973 Act conferred revisional powers on the Commissioner, while Section 34 of the VAT Act conferred similar powers but with a three-year limitation period. The court also considered the provisions of Section 61 of the VAT Act, which repealed the 1973 Act but saved pending applications, appeals, revisions, and other proceedings, transferring them to the corresponding authorities under the new Act. 5. Applicability of Section 4 of the Punjab General Clauses Act, 1898 The court examined Section 4 of the Punjab General Clauses Act, 1898, which provides that the repeal of an enactment does not affect any right, privilege, obligation, or liability acquired under the repealed enactment unless a different intention appears. The court concluded that the Legislature, through Section 61 of the VAT Act, expressed a different intention by saving only pending applications, appeals, revisions, and other proceedings. Therefore, Section 4 of the General Clauses Act could not be invoked to defend the action taken by respondent No. 2. Conclusion The court allowed the writ petitions, quashing the orders passed by respondent No. 2. It held that the revisional authority did not have jurisdiction to initiate proceedings under the repealed 1973 Act and that the proceedings were barred by limitation. The court also found that the rule against entertaining writ petitions in the presence of an alternative remedy did not apply in this case due to the jurisdictional challenge. The parties were left to bear their own costs.
|
