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2015 (7) TMI 1038 - HC - VAT and Sales TaxReview of order - Whether on the facts and circumstances of the case, it was a case fit for revision under Section 40 of the Haryana General Sales Tax Act, 1973 or a case fit for reassessment under Section 31 of the said Act - Held that - Tribunal construed the assessment order in detail and came to a positive finding that the assessment order was passed on account of a mistake of law and that the Assessing Authority had, in fact, considered the entire record and had not brought to tax the sale proceeds on account of the sale of DEPB in view of the legal position as he perceived it to be. We were, in fact, informed that prior to the assessment order, the proceeds for the sale of DEPB were not brought to tax in the case of most of the assessees - Assessing Authority had taken the case into consideration is perverse, unreasonable or totally unsustainable. The Tribunal has taken the relevant facts in this regard into consideration. For instance, as we noted earlier, the assessment order was passed pursuant to the notice issued under Section 28(2) on account of the Assessing Authority not being satisfied with the returned sale version. Pursuant thereto, the appellant produced the account books and other relevant documents. The order expressly states that the same had been examined in detail and found to be maintained in normal course of business . The issue, therefore, did not escape the Assessing Authority. The balance-sheet, admittedly, was also produced. The balance-sheet had attached to it the trading, profit and loss account for the year ending as on 31.03.2000. There is a specific entry regarding the sales of the DEPB. The balance-sheet was also examined by the Assessing Authority. - appeal, therefore, does not raise a substantial question of law - Revision upheld - Decided against assessee.
Issues Involved:
1. Jurisdiction of the revisional authority under Section 40 of the Haryana General Sales Tax Act, 1973 (HGST Act). 2. Whether the case was fit for reassessment under Section 31 or for revision under Section 40 of the HGST Act. 3. Legality and propriety of the assessment order regarding the sale of Duty Entitlement Pass Book (DEPB) license. Detailed Analysis: Jurisdiction of the Revisional Authority under Section 40 of the HGST Act: The appellant challenged the jurisdiction of the revisional authority under Section 40 of the HGST Act, arguing that the revisional authority had no jurisdiction to invoke the provisions of Section 40. The Special Bench of the Haryana Tax Tribunal had previously held that the revisional jurisdiction was rightly invoked by the revisional authority. The appellant contended that the case was fit for reassessment under Section 31 by the assessing authority and not for revision under Section 40. The revisional authority issued a notice dated 20.02.2003, stating that the assessment order suffered from illegalities and improprieties, specifically mentioning the sale of DEPB license worth Rs. 53,05,167/- that had escaped assessment. Fit for Reassessment under Section 31 or Revision under Section 40: The appellant argued that the substantial question of law was whether the case was fit for revision under Section 40 or reassessment under Section 31 of the HGST Act. Section 31 deals with reassessment of tax if the assessing authority discovers that the turnover has been under-assessed or has escaped assessment within three years from the date of the final assessment order. Section 40 allows the Commissioner to call for the record of any case to satisfy himself as to the legality or propriety of any proceedings or order and pass such order as he may think fit. The appellant relied on the judgment in Haryana Agro Industries Corporation Limited vs. State of Haryana, which distinguished between the powers under Sections 31 and 40, indicating that the power to reassess escaped turnover is reserved for the assessing authority and not the revisional authority. Legality and Propriety of the Assessment Order: The revisional authority, by an order dated 28.04.2004, held that the case was fit for revision under Section 40 and determined that the appellant was liable to tax on account of the sale of DEPB license. The Tribunal noted that the assessment order was passed before the Delhi High Court's judgment in Philco Exports vs. Sales Tax Officer, which held that DEPB is considered goods. The Tribunal found that the assessment order was passed on account of a mistake of law, as the Assessing Authority had considered the entire record but did not bring the sale proceeds of DEPB to tax due to the legal position at the time. The Tribunal's finding that the Assessing Authority had taken the case into consideration and examined the account books and relevant documents in detail was not deemed perverse, unreasonable, or unsustainable. Conclusion: The High Court concluded that the appeal did not raise a substantial question of law and dismissed the appeal. The Tribunal's view that the assessment order was passed based on a mistake of law and that the Assessing Authority had examined the relevant records was upheld. The High Court agreed that the issue did not escape the Assessing Authority, and the Tribunal's decision was based on a reasonable interpretation of the facts and circumstances. Judgment: The appeal was dismissed, affirming the Tribunal's decision that the revisional authority had rightly invoked its jurisdiction under Section 40 of the HGST Act.
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