2014 (8) TMI 91 - HC - VAT and Sales Tax

Waiver of pre-deposit - Furnishing of Bond for disputed amount - Haryana Value Added Tax Act, 2003 - Sections 33(5), 36 - interest - Whether the provisions of Section 33(5) of the Act notified on 20.03.2009 can be applicable for the Assessment year of 2005-06 in the absence of it not having retrospective effect - Held that - In view of various judgments referred to above and on the reading of section 61(2) of the HVAT Act, 2003 it is concluded that section 61(2) of the HVAT Act does not give any retrospective effect to the provisions of the aforesaid Act either expressly or by necessary implication. Sub-section (2) of section 61 of the HVAT Act, 2003, contemplates transfer of pending proceedings pertaining to application, appeal, revision or other proceedings to the authorities constituted under the HVAT Act, 2003 and to be disposed of by the authorities so constituted. Such authorities constituted under the HVAT Act has been given deemed fiction to be in existence for the purpose of such application, appeal, revision or such other proceedings so as to be in force on the date such application, appeal, revision or other proceedings have been made or preferred. Since expressly or by necessary intendment, no retrospective effect is sought to be given, therefore, the effect of repeal of the HGST Act, is required to be examined with reference to section 4 of the Punjab General Clauses Act, 1898. In civil proceedings, lis commences on the presentation of the plaint or in cases claiming compensation under the Motor Vehicles Act on filing claim application. The question is when lis can be said to commence under the taxation laws. Section 25 of the HGST Act enjoins a duty upon an assessee to file quarterly return and deposit tax thereon. If such returns are accepted, there is no lis. Consequently, there would be no occasion for the parties to file an appeal. However, if such returns are not accepted, the cause of action which arise on the date when returns are required to be filed. The cause of action can be said to be arisen also when an assessee is called upon to furnish return on his failure to do so in terms of the provisions of the old Act. Wherein the substituted sub-section (5) of Section 20 of Punjab General Sales Tax Act, 1948 was examined. The amendment makes it mandatory for appeal to be entertained, prior minimum deposit to the extent of 25% of tax, penalty, if any imposed and the interest accrued thereon. The provision prior to the said amendment, gives discretion to the Appellate Authority to dispense with the pre-deposit of tax, interest or penalty. It was held therein that since return in all the writ petitions have filed prior to the amendment in the Act, therefore, provision as it existed prior to amendment would be applicable - In view of the judgment of Division Bench of this Court examining the similar matters in Oswal Agro Mills Ltd. s case (2004 (3) TMI 723 - PUNJAB AND HARYANA HIGH COURT), the return filed before amendment would be governed by unamended provisions. We find that the conditions of entertaining the appeal by Haryana Act No.10 of 2009 could not be made applicable in respect of assessment proceedings initiated prior to the amendment - Matter remanded back - Decided in favour of Assessee.

Summary

Issues involved:
1. Applicability of amended Section 33(5) of the Haryana Value Added Tax Act, 2003 for the assessment year 2005-06.
2. Justifiability of not hearing the appeal on merits due to the absence of a surety bond for the assessment year 2005-06.

Issue 1: Applicability of amended Section 33(5) for the assessment year 2005-06:
The appeal under Section 36 of the Haryana Value Added Tax Act, 2003 challenges the dismissal of the appellant's appeal against the assessment order due to non-submission of the disputed amount bond. The amended provision of Section 33(5) mandates the payment of tax admitted to be due and interest thereon through a bank guarantee or security. The appellant argues that since the assessment relates to 2005-06, the unamended provision should apply. The court considers if the amended provision can apply without retrospective effect. Citing precedents, the court emphasizes that the right of appeal is a vested right governed by the law in force when the cause of action arises. The judgment in Khazan Chand Nathi Ram's case highlights that the right of appeal is not affected by the new Act unless expressly stated. Hence, the court concludes that the amended provision cannot apply retrospectively to assessments prior to the amendment.

Issue 2: Justifiability of not hearing the appeal on merits without a surety bond for the assessment year 2005-06:
The appellant argues that the absence of a statutory requirement for a surety bond in the assessment year 2005-06 should not prevent the appeal from being heard on merits. The court examines the procedural aspect of filing an appeal and the retrospective application of conditions like pre-deposit. The court refers to the judgment in Oswal Agro Mills Ltd.'s case, which states that the right of appeal is vested at the commencement of the legal proceedings. Since the returns were filed before the amendment, the unamended provisions should govern the appeals. Consequently, the court sets aside the orders dismissing the appeal and remits the matter back to decide on merits in compliance with the unamended provision of Section 33(5) of the Act.

In conclusion, the High Court of Punjab and Haryana rules in favor of the appellant, emphasizing that the amended provision of Section 33(5) cannot be applied retrospectively to assessments prior to the amendment. The court highlights the importance of the right of appeal as a vested right and directs the authorities to decide the appeal on merits in accordance with the unamended provisions of the Act for the assessment year 2005-06.