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2018 (8) TMI 1879 - HC - VAT and Sales TaxSuo-moto revision of assessment order - Section 40 of the Haryana GST Act, 1973 - HELD THAT - This Court in HINDUSTAN CONSTRUCTION COMPANY LTD. VERSUS STATE OF HARYANA AND OTHERS 2005 (2) TMI 785 - PUNJAB AND HARYANA HIGH COURT , opined that after repeal of the 1973 Act with enactment of the 2003 Act with effect from 1.4.2003, no fresh proceedings could be initiated under Section 40 of the 1973 Act as only pending proceedings had been saved. Division Bench of this Court doubting the correctness of the abovesaid judgment referred the matter to be considered by a Larger Bench. In the case in hand, it is undisputed fact on record that notice for revision of the order of assessment was issued to the petitioner after the repeal of the 1973 Act and enactment of 2003 Act, on 15.5.2006, which is much after the repeal of the 1973 Act. Hence, in view of the enunciation of law, the proceedings initiated against the petitioner for revision of the order of assessment as well as the order passed are without jurisdiction and deserve to be set aside. There is no merit in the contention raised by learned counsel for the State that in the case of the petitioner provision of Section 61(2)(d) of the 2003 Act will be applicable, as the aforesaid provision does not deal with exercise of revisional power by the authorities rather only saves the benefits granted to the industrial units during the currency of the 1973 Act in terms of provisions of Section 13(B) and 25(A) thereof and the Rules framed thereunder. Any application, appeal, revision have not been referred to in the aforesaid sub-section. Petition allowed.
Issues Involved:
1. Validity of the order dated 27.3.2006 passed by the Deputy Excise & Taxation Commissioner under Section 40 of the Haryana General Sales Tax Act, 1973. 2. Applicability of Section 61 of the Haryana Value Added Tax Act, 2003, and its amendments. 3. Interpretation of the saving clause in the context of repealed and new enactments. 4. Jurisdictional authority to initiate fresh proceedings post-repeal of the 1973 Act. Detailed Analysis: Issue 1: Validity of the Order Dated 27.3.2006 The petitioner challenged the order dated 27.3.2006, issued by the Deputy Excise & Taxation Commissioner under Section 40 of the Haryana General Sales Tax Act, 1973 (the 1973 Act). The assessment for the year 2002-03 was framed on 21.6.2005, and a notice for revision was issued on 17.1.2006. The 1973 Act was repealed with the enactment of the Haryana Value Added Tax Act, 2003 (the 2003 Act) effective from 1.4.2003. The High Court in Hindustan Construction Company Limited vs State of Haryana opined that no notice under Section 40 of the 1973 Act could be issued post-repeal as Section 61 of the 2003 Act only saved pending proceedings, not allowing fresh proceedings. Issue 2: Applicability of Section 61 of the Haryana Value Added Tax Act, 2003, and Its Amendments The matter was referred to a Larger Bench due to doubts about the correctness of the Hindustan Construction Company Limited judgment. The Supreme Court upheld this judgment in State of Haryana vs Hindustan Construction Company Limited, stating that Section 61 of the 2003 Act, including its amendments, only saved pending proceedings at the time of enactment, with no power to initiate fresh proceedings. Issue 3: Interpretation of the Saving Clause in the Context of Repealed and New Enactments The Supreme Court clarified that the repeal of an Act followed by a new enactment requires examining the new Act's language to determine if it expresses a different intention. The 2003 Act's Section 61 intended to save only pending proceedings, indicating that matters closed under the 1973 Act could not be reopened. The suo-moto revisional power under Section 40 of the 1973 Act exercised after its repeal was unsustainable. Issue 4: Jurisdictional Authority to Initiate Fresh Proceedings Post-Repeal of the 1973 Act The Supreme Court's observations emphasized that the 2003 Act's Section 61 saved only pending proceedings, and no fresh proceedings could be initiated under the repealed 1973 Act. The legislative amendments in 2010 were intended to address limitations and constraints under Section 61 of the 2003 Act. Any interpretation saving the revisional power under Section 40 of the 1973 Act without pending proceedings would render the amendment redundant. Conclusion: In the present case, the notice for revision was issued after the repeal of the 1973 Act, making the proceedings initiated against the petitioner for the revision of the assessment order without jurisdiction. The contention that Section 61(2)(d) of the 2003 Act applied to the petitioner's case was dismissed as it did not deal with the exercise of revisional power but only saved benefits granted to industrial units. Consequently, the writ petition was allowed, and the revisional authority's order dated 27.3.2006 was set aside.
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