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TMI Blog2000 (3) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 15, 1989, October 30, 1989, January 29, 1990, November 7, 1989 and January 30, 1990 respectively. 2.. Mr. Bharatji Agarwal, learned counsel for the applicants, has attacked the orders passed on the ground that the same were passed beyond time as prescribed under the provisions of section 39(2) and (3) of the U.P. Sales Tax (Amendment) Act, 1995 (U.P. Act No. 31 of 1995) (hereinafter referred to as the "Amending Act"). 3.. Counsel for the applicant has placed the provisions of section 22 of the U.P. Sales Tax Act, 1948 and the provisions of section 39 of the amending Act. The said provisions reads as follows: "Section 22: Rectification of mistakes.-(1) The assessing, appellate or revising authority or the Tribunal may, on its own motion or on the application of the dealer or any other interested person rectify any mistake in its order, apparent on the record within three years from the date of the order sought to be rectified: Provided that where an application under this sub-section has been made within such period of three years, it may be disposed of even beyond such period: Provided further that no such rectification as has the effect of enhancing the assessment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven notice to the dealer or person concerned of his intention to do so and has allowed him a reasonable opportunity of being heard." 4.. Mr. Bharatji Agarwal on the basis of the aforesaid provisions of the Act has submitted that since none of the orders for the said relevant years were passed within one year of the commencement of the provisions of section 39 of the Act or within the period prescribed in section 22 of the principal Act, the same are barred by time and any order passed beyond the period prescribed is bad in law and without jurisdiction. 5.. Mr. Agarwal submits that in cases where time prescribed under section 22 of the Act has expired the entitlement of sub-section (2) could be availed of by the assessing authority in filing application within September 30, 1995 and the order under sub-section (3) has to be passed within one year from the date of commencement of the section, i.e., March 15, 1995 which expires on March 14, 1996. In cases where the time has not expired for passing the order of rectification under section 22(1) though the application under section 22 has already been filed within three years as prescribed under section 22, in such matter within the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication was to be made by September 30, 1995 and the rectification order was to be passed by March 14, 1996. Second part of sub-section (3) of section 39 of the amending Act, however, extends the time for passing of the order of rectification. By the said provisions of section 39(3), orders under section 22(1) for its unexpired period of three years could be passed even subsequent to one year as prescribed in part (1) of sub-section (3) of section 39 of the amending Act. In that view of the matter the orders of rectification under section 22(1) if it falls beyond one year as prescribed under the first part of section 39(3) of the Act could be made within three years. However, the proviso allows time for passing of the order even beyond three years, if the application for rectification is made within three years. Sub-section (2) of section 39 makes it abundantly clear that the application has to be filed within 30th September, 1995 and orders of review or rectification are to be made either within one year from the commencement of section 39 or period prescribed under section 22 of the principal Act, i.e., three years from the date of the order sought to be rectified. The proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in respect of rectified spirit and denatured spirit was held to be non-taxable under the U.P. Sales Tax Act, 1948 (hereinafter referred to as "the principal Act") by the Trade Tax Tribunal, Muzaffarnagar (hereinafter referred to as "the Tribunal") in respect of assessment years 1974-75 to 1983-84, except 1977-78, as there was no levy on such items at the relevant point of time. An application was filed by the department before the Tribunal for review on the basis of the amendment of section 3-A and section 4 of the principal Act as amended by the Amendment Act. By amendment to section 3-A of the principal Act, a specific clause was added to bring to tax the turnover of alcohol as defined under the United Provinces Sales of Motor Spirits, Diesel Oil and Alcohol Taxation Act, 1939, amongst other goods, at such point and at such rate not exceeding twenty-six per cent, as the State Government may, by notification, declare. The result is that in the principal Act sale of alcohol as defined in the U.P. Sales of Motor Spirits, Diesel Oil and Alcohol Taxation Act, 1939, became taxable. The review applications filed on behalf of the Revenue was opposed by the respondents on various groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect of enhancing the assessment, penalty, fees or other dues shall be made unless reasonable opportunity of being heard has been given to the dealer or other person likely to be affected by such enhancement. (2) Where such rectification has the effect of enhancing the assessment, the authority concerned shall serve on the dealer a revised notice of demand in the prescribed form and therefrom all the provisions of the Act and the Rules framed thereunder shall apply as if such notice had been served in the first instance." Section 39 of the Amendment Act: "39. Validation.-(1) Notwithstanding anything in any judgment, decree or order of any court or authority, any notification issued or anything done or any action taken before the commencement of this section which conforms to the provisions of the principal Act as amended by this Act shall be deemed to be and always to have been valid and lawful as if the provisions of this Act were in force at all material times. (2) Where before the commencement of this section any authority or court, in any proceeding made any assessment, levy or collection of any tax or passed any order imposing any penalty or making any other demand und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contend that section 39(2) and (3) has to be read together and it would mean that an application made under section 39(2) can be disposed of only within one year from the date of enforcement of the amendment Act or within three years of the order sought to be reviewed, whichever is later. It was further submitted that proviso to section 22(1), which does not prescribe any limitation for passing an order on an application for rectification, is not applicable to the application made under section 39(2) of the Amendment Act and that otherwise the whole purpose of providing limitation under section 39(3) becomes superfluous. On that basis, the respondents sought to support the view taken by the High Court. On behalf of the respondents, certain other additional grounds were raised to which we shall advert later. 6.. A validating Act can render ineffective judgments and orders of a competent court or an authority provided it, by retrospective legislation, removes the cause of invalidity or the basis which had led to those judgments. In the present case, provisions have been made in the Amendment Act to remove certain defects, which had been pointed out by the Tribunal or other authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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