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2019 (1) TMI 52 - HC - VAT and Sales TaxMaintainability of petition - case of Revenue is that against the decision of the Appellate Tribunal, a revision is maintainable before the High Court and, accordingly, as a statutory revision is provided, therefore, this writ petition does not lie - survival of proceeding initiated under the AVAT Act, 2003 - Section 174 (2)(f) of the Act - Held that - It is the settled law that an appeal or a revision is generally considered to be a continuation of the original suit or proceeding. In the instant case as noticed, the proceeding against the petitioner was initiated by the show cause notice dated 07.04.2014, whereas, the later enactment being the AGST Act of 2017 came into effect on and from 01.01.2017 Therefore, it is to be concluded that on the date on which the AGST Act of 2017 came into effect, the proceeding initiated against the petitioner was in place and therefore, such proceeding is saved under Section 174(2)(f) of the later enactment being the AGST Act of 2017 - In view of the clear provision of Section 174 2(f), a proceeding that was initiated against the petitioner by the Superintendent of Taxes at Boxirhat Check post, continues to remain under the AVAT Act of 2003 up to the point where the Assam Board of Revenue being the Appellate Tribunal had given its final consideration. In the event, the petitioner desires the proceeding can be further continued by preferring a revision under Section 81 of the AVAT Act of 2003 or in the event, the petitioner does not desire to do so, the same comes to an end by attaining finality. The contention of petitioner that as the writ petitioner had not initiated any further proceeding, therefore, the proceeding came to an end and as such a revision is not maintainable, cannot be accepted - In the present case, the proceeding against the petitioner having been initiated under the AVAT Act of 2003, when the same was still in existence, therefore, the proceeding is saved and continues as if the AVAT Act of 2003 was not repealed. Petition dismissed - decided against petitioner.
Issues Involved:
1. Maintainability of the writ petition. 2. Applicability of Section 81 of the AVAT Act, 2003. 3. Interpretation of Section 174(2)(f) of the AGST Act, 2017. 4. Continuation of proceedings under repealed enactments. Issue-wise Detailed Analysis: 1. Maintainability of the Writ Petition: The respondent raised a preliminary objection on the maintainability of the writ petition, arguing that under Section 81 of the AVAT Act, 2003, a revision is maintainable before the High Court against the decision of the Appellate Tribunal. The Assam Board of Revenue, designated as the Appellate Tribunal, issued the judgment on 08.08.2017, thus making a statutory revision applicable. The court concluded that since a statutory alternative remedy in the form of revision is available, the writ petition is not maintainable. 2. Applicability of Section 81 of the AVAT Act, 2003: The petitioner contended that the proceedings initiated under the AVAT Act of 2003 had come to an end with the order dated 08.08.2017, and thus, there was no requirement for a revision under Section 81 of the AVAT Act of 2003. However, the court referred to various legal precedents, including the Supreme Court's decision in Gammon India Ltd. v. Special Chief Secretary, which established that unless a new enactment explicitly indicates otherwise, proceedings under a repealed act continue to their logical end, including appeals and revisions. 3. Interpretation of Section 174(2)(f) of the AGST Act, 2017: The petitioner argued that under Section 174(2)(f) of the AGST Act of 2017, only proceedings initiated and surviving under the AVAT Act of 2003 are saved. The court interpreted Section 174(2)(f) to mean that any proceeding initiated under the AVAT Act of 2003, including appeals and revisions, continues unaffected by the repeal of the Act. The court found that the language of Section 174(2)(f) was clear and unambiguous in preserving the proceedings initiated under the repealed Act. 4. Continuation of Proceedings under Repealed Enactments: The court referred to several judgments, including Commissioner of Income Tax, UP v. M/s Shah Sadiq and Sons, and State of Assam v. Assam Tea Co. Ltd., which established that rights and liabilities under a repealed enactment continue unless explicitly taken away by the new enactment. The court concluded that the proceedings initiated against the petitioner under the AVAT Act of 2003 continue under the provisions of the repealed Act, as per Section 174(2)(f) of the AGST Act of 2017. Conclusion: The court dismissed the writ petition, holding that the proceedings initiated under the AVAT Act of 2003 continue to their logical end, including appeals and revisions, under the provisions of the repealed Act. The court found that the writ petition was not maintainable due to the availability of a statutory alternative remedy in the form of revision under Section 81 of the AVAT Act of 2003. The court emphasized that the clear and unambiguous language of Section 174(2)(f) of the AGST Act of 2017 preserved the proceedings initiated under the repealed Act.
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