2017 (5) TMI 1173 - HC - VAT and Sales Tax

Maintainability of appeal - section 39(2) of the Haryana General Sales Tax Act, 1973 - whether the State of Haryana is entitled to file an appeal u/s 39(2)? - Held that - Section 39(2) does not confer the right of appeal only in favor of the assessee. It does not limit the right of appeal to any particular person or party. There is nothing in the scheme of the Act that persuades us to read a limitation to this effect into sub-section (2) of section 39. If the Legislature intended restricting the right of appeal to assessees, it would have provided so expressly - it was clear from a reading of the provisions of the Act that it was only under section 39(7) that the State has the power to file an appeal against the orders of the revisional authority and since the order appealed against was not passed by the revisional authority the State has no right to file an appeal against the order of the JETC. The mere existence of a power of revision under section 40 does not imply that there is no right of appeal. Further, merely because there is a right of appeal under section 39(7) against an order passed in revision under section 40(2), it does not follow that the State does not have a right of appeal under section 39(2) - petition allowed - decided in favor of petitioner.

Summary

Issues:
1. Challenge of Tribunal's order under section 39(2) of the Haryana General Sales Tax Act, 1973.
2. Maintainability of appeal by the State of Haryana under section 39(2).

Analysis:
1. The petitioners challenged the Tribunal's order dismissing their appeal under section 39(2) of the Haryana General Sales Tax Act, 1973, and the subsequent dismissal of their review application. The order was based on the penalty imposed by the Assistant Excise and Taxation Officer-cum-Assessing Authority due to goods found without necessary documents at the respondents/assessees' premises. The respondents appealed against this order, which was allowed by the Joint Excise & Taxation Commissioner. The petitioner's appeal against the JETC's order was deemed not maintainable by the Tribunal, leading to a review application also being dismissed.

2. The key issue was whether the State of Haryana had the right to file an appeal under section 39(2). The High Court held that the right of appeal under section 39(2) is not limited to the assessee and is not restricted to any particular person or party. The Court emphasized that if the Legislature intended such a limitation, it would have expressly provided for it. The Tribunal had concluded that the State could not appeal by combining sections 39(7) and 40, stating that the State could only file an appeal under section 39(7) against orders of the revisional authority, not the JETC's order. However, the High Court disagreed with this reasoning, clarifying that the power of revision under section 40 is separate from the right of appeal under section 39(2). Therefore, the mere existence of a power of revision does not negate the right of appeal. The Court held that the right to appeal against a revisional order does not eliminate the right of appeal conferred by the Act.

In conclusion, the High Court allowed the petition, setting aside the Tribunal's orders and restoring the appeal before the Tribunal for further consideration on merits.