9911796707
TMI Blog1990 (4) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... ectronic Ltd., Panchkula. The Excise and Taxation Officer-cum-Assessing Authority, Ambala Cantonment (for short, "the Assessing Authority'), initiated proceedings under section 29 of the Haryana General Sales Tax Act, 1973 (for short, "the Act"), for finalisation of assessment with regard to the works contracts done. By its order dated November 30, 1988 (annexure P-3), the Assessing Authority framed assessment and levied tax amounting to Rs. 3,09,663 on the petitioner-company. A sum of Rs. 1,00,000 was also imposed as penalty on the company for having wilfully failed to apply for its registration. Though according to the Assessing Authority the total work done by the petitioner-company was of Rs. 515 lacs, but since the Government of Haryan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner was not liable to pay tax; no tax has been collected nor any purchases have been made on the strength of registration certificate by the petitioner-company and that the Assessing Authority had no jurisdiction to assess the petitioner-company as it had already been granted registration certificate by the Excise and Taxation Officer, Gurgaon, on April 12, 1988. The appellate authority while agreeing with the contention of the counsel appearing for the department that in view of the amendment carried out by Act 13 of 1989 no order passed under the principal Act will be called in question before any court or tribunal or any other authority, held that the appeal could not be heard as the same was not maintainable, vide its order dated Decemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53] 4 STC 114. The respondents have not filed any written statement nor was the counsel appearing for the respondents able to repel the judicial precedents cited above by the petitioner's counsel. I have considered the submissions of the learned counsel for the parties and perused the relevant provisions of law. The sole question which requires consideration by this Court is what is the effect of amendment of section 6 by the Haryana General Sales Tax (Second Amendment and Validation) Act, 1989 (Act 13 of 1989) made by notification dated October 1, 1989, with effect from April 1, 1987, retrospectively and does it extinguish the right of appeal available under the Haryana General Sales Tax Act, 1973. To begin with, it is necessary to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in execution of works contract during the period from the first day of April, 1987 to 31st day of March, 1989, any levy, assessment, reassessment or collection of any amount by way of tax or penalty made or purported to have been made and any action taken or done during the aforesaid period in relation to such. levy, assessment, reassessment or collection under the provisions of the principal Act, shall be deemed to be valid and effective as if such levy, assessment, reassessment or collection had been made or action taken or things done under the principal Act and shall not be called in question in any court or tribunal or other authority and accordingly,- (a) all acts, proceedings, or things done or action taken by the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself and could not be regarded as a mere rule of procedure." Before the amendment by means of Act 13 of 1989, a vested right of appeal was available under section 39 of the Act. The relevant portion of the aforesaid section 39 of the Act reads thus: "39. Appeal.-(1) An appeal from every original order, including an order under section 40, passed under this Act or the Rules made thereunder shall lie, (a) if the order is made by an Assessing Authority, officer-in-charge of a check-post or a barrier or an officer below the rank of a Deputy Excise and Taxation Commissioner; to the Deputy Excise and Taxation Commissioner or such other officer as the State Government may, by notification, appoint; (b)............." On consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Authority on wrong findings and on those scores creates a liability and that liability is held to be immune from scrutiny in appeal on the construction of the expression used in section 11 of 1989 Act, such a construction to my mind is not warranted. It was not the intention of the Legislature to deprive such contractor of a right of appeal on grounds other than those which have been mentioned above. Such a construction will amount to collection or levy of tax without any authority of law contrary to the provisions of article 265 of the Constitution of India. In view of the foregoing discussion, the order dated December 26, 1989 (annexure P-1) passed in appeal by the Joint Excise and Taxation Commissioner (A), Ambala, is quashed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
