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TMI Blog2005 (2) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... alternative remedy. Even otherwise, we find that section 40 of the 1973 Act merely conferred a power on the revisional authority giving suo motu powers to the revisional authority. No corresponding right was conferred upon the department to file a petition seeking revision of the order. An enabling provision in a statute conferring certain power upon a competent authority cannot be taken to be any right, much less a vested right in favour of a suitor-department. We shall now deal with the provisions of section 4 of the General Clauses Act, 1898. A reading thereof shows that unless a different intention appears, the repeal does not affect any right, privilege or obligation or any legal proceedings or remedy in respect of any such right, privilege, obligation, liability, etc. By virtue of section 61 of the VAT Act, the Legislature, while repealing the 1973 Act, saved the pending application, appeal, revision and other proceedings made or preferred to any authority under that Act and transferred the same for disposal by the officer or authority, who would have had jurisdiction to entertain such application, etc., under the new Act. It is, thus, clear that while enacting section 61 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d wrong returns and the assessment has been framed wrongly by taking only the cost price of the material used in the works contract for the purpose of assessment. The returns and the assessment should have been framed according to the law laid down by the honourable Supreme Court in the case of Gannon Dunkerley Co. v. State of Rajasthan (C.A. Nos. 4861-4864 of 1992) reported in [1993] 88 STC 204. As per this judgment the value of the goods involved in the works contract will have to be determined by taking into account the value of the entire works contract and deducting therefrom the charges towards labour and services. (b) A refund has wrongly been allowed as tax paid on cement as there was no manufacturing. This should have been allowed as tax paid sales under rule 24(i). (c) The duty draw back of Rs. 1,74,46,674 or amount of excise duty has been wrongly reduced from the turnover as any incentive/ subsidy allowed by the Government is not deductible. 3. The petitioner-company contested the notice issued by respondent No. 2. In the reply filed on its behalf, it was pleaded that after the repeal of the 1973 Act by the Haryana Value Added Tax Act, 2003 (for short, the VAT Act ), res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 4 of the Punjab General Clauses Act, 1898 (for short, the General clauses Act ). On the basis of the aforesaid pronouncement in Khazan Chand Nathi Ram's case [2004] 136 STC 261 (P H) as well as provisions of General Clauses Act, it has been claimed by the respondents that on the repeal of the 1973 Act any right, privilege, liability or obligation under the old law is continued to be governed under the old law and, therefore, respondent No. 2 had the jurisdiction to pass order, annexure P5, even though the 1973 Act stood repealed. Reliance has also been placed on the judgment of the Supreme Court in Gannon Dunkerley Co. v. State of Rajasthan [1993] 88 STC 204 and it has been averred that respondent No. 2 did not commit any illegality by revising the order passed by the Assessing Authority. 6. We have heard Shri K.L. Goyal, learned counsel appearing for the petitioner-company and Shri Jaswant Singh, Senior Deputy Advocate-General, Haryana, appearing for the respondents and with their assistance have also gone through the record of the case. 7. At the out set, we may mention that Shri K.L. Goyal, learned counsel for the petitioner-company, fairly stated that if this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the 1973 Act. He drew distinction between a right of appeal available to the suitor and power of revision which could be exercised by competent authority and argued that after repeal of the 1973 Act, respondent No. 2 could not have initiated proceedings under section 40 of the 1973 Act. In support of this contention, Shri Goyal relied on the judgment of the Supreme Court in Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers AIR 2003 SC 2434; (2003) 6 SCC 659. Shri Goyal then argued that the impugned order is liable to be declared as nullity because even though, in terms of section 40 of the 1973 Act, the limitation for exercise of revisional power is five years, under section 34 of the VAT Act, the said power could be exercised within three years from the date of supply of copy of the assessment order. He further submitted that a provision relating to the limitation is procedural and, therefore, the proceedings initiated in the year 2004, i.e., after expiry of four years from the date of assessment were clearly barred by time. In the end, he argued that the power of revisional authority has not been conferred under the VAT Act on any officer and, therefore, resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of various enactments necessary for adjudication of the present controversy. The same read as under: Haryana General Sales Tax Act, 1973: Section 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 incharge of a check-post or 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) if the order is made by the Deputy Excise and Taxation Commissioner or any other officer not below the rank of a Deputy Excise and Taxation Commissioner to the Commissioner or such other officer as the State Government, may by notification, appoint; (c) if the order is made by the Commissioner, to the Tribunal. (2) An order passed in appeal by the Deputy Excise and Taxation Commissioner or the officer appointed by the State Government under clause (a) of sub-section (1) or by the Commissioner or the officer appointed by the State Government under clause (b) of that sub-section shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order appealed against. Section 4 Revision. (1) The Commissioner may on his own motion call for the record of any case pending before, or disposed of by any officer appointed under sub-section (1) of section 3 of the Act to assist him or any assessing authority or appellate authority, other than the Tribunal, for the purposes of satisfying himself as to the legality or to propriety of any proceedings or any order made therein and may pass such order in relation thereto as he may think fit: Provided that no order, shall be so revised after the expiry of a period of five years from the date of the order: Provided further that the aforesaid limitation of period shall not apply where the order in a similar case is revised as a result of the decision of the Tribunal or any Court of law: Provided further that the assessee or any other person shall have no right to invoke the revisional powers under this sub-section. (2) The State Government may, by notification, confer on any officer the powers of the Commissioner under sub-section (1) to be exercised subject to such conditions and in respect of such areas as may be specified in the notification. (3) No order shall be passed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the rank of Deputy Excise and Taxation Commissioner, the powers of the Commissioner under sub-section (1) to be exercised subject to such exceptions, conditions and restrictions as may be specified in the notification and where an officer on whom such powers have been conferred passes an order under this section, such order shall be deemed to have been passed by the Commissioner under sub-section (1). xx xx xx xx xx xx xx xx Section 61: Repeal and saving. (1) The Haryana General Sales Tax Act, 1973 (20 of 1973), is hereby repealed: (2) Notwithstanding anything contained in sub-section (1), (a) any application, appeal, revision or other proceedings made or preferred to any authority under this said Act, and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceedings under this Act as if it had been in force on the date on which such application, appeal, revision or other proceedings was made or preferred; xx xx xx xx xx xx xx xx Section 62: Any reference in any provision of the law contained in the repealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; used in the operative part of sub-section (2) of this section mean only the suits and other proceedings at the stage of their trial in the court of the first instance. So far as the petitions for revision are concerned, there can be no doubt that they are not included in the words 'suits' because they cannot be said to be in the nature of rehearing of the same. It is a well-known proposition of law that no party has a right to insist that a particular order must be revised by the High Court under the powers of revision vested in the said Court and that it is the right of the High Court alone to interfere in revision as and when it thinks fit to do so and as and when the conditions precedent for its interference, as mentioned in the provision of law vesting the powers of revision in this Court, are satisfied, vide, in this connection, Dinshaw Iron Works v. Maikhan Adamji and Co. ILR 1943 Bom 33, Bishambar Nath v. Achal Singh ILR 54 All. 891 and Laxmandas v. Chunilal AIR 1931 Nag 17. Falshaw, J., in the case decided by him and referred to above has sought to draw a distinction between the powers of revision under the provisions of section 115 of the Civil Procedure Code, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. Under section 115 of the Code of Civil Procedure, the High Court's powers are limited to see whether in a case decided, there has been assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit. The phrase 'according to law' refers to the decision as a whole, and is not to be equated to error of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which section 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a power on the High Court to pass such ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence. 16. A Full Bench of this Court in the case of Chanan Dass v. Union of India AIR 1967 Punj 297; 1967 PLR 1, was also seized of a similar controversy. Taking into consideration the law laid down in Man Mohan Lal's case (1962) 64 PLR 51 and Hari Shankar's case AIR 1963 SC 698, the Full Bench made the following observations: So the view taken by the learned Judges in Man Mohan Lal's case (1962) 64 PLR 51 finds affirmance by their Lordships in the above case. In spite of the larger amplitude of the power in section 35 of the Delhi and Ajmer Rent (Control) Act, 1952, as compared to the revisional power of the High Court under section 115 of the Code of Civil Procedure, their Lordships have now affirmed (a) that the power of revision is not the same as an appeal, and (b) that a revision is not a rehearing of the original proceedings. There is thus not intrinsic unity of proceedings to the stage of revision with the suit or original proceedings as to the stage of appeal as has been observed in Garikapati Veeraya's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid case are being read out of context. What was held in that case related to the exercise of power of a higher court, and in that context the nature of consideration in appeal and revision was referred to. It was never held in that case that appeal is equated to a revision. 14. Section 115 is essentially a source of power for the High Court to supervise the subordinate courts. It does not in any way confer a right on a litigant aggrieved by any order of the subordinate court to approach the High Court for relief. The scope for making a revision under section 115 is not linked with a substantive right. 15. Language of sections 96 and 100 of the Code which deal with appeals can be compared with section 115 of the Code. While the former two provisions specifically provide for right of appeal, the same is not the position vis-a-vis section 115. It does not speak of an application being made by a person aggrieved by an order of subordinate court. As noted above, it is a source of power of the High Court to have effective control on the functioning of the subordinate courts by exercising supervisory power. 16. An appeal is essentially continuation of the original proceedings and the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code. The power of hearing revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. Reference was made to section 115 of the Code to hold that the High Court's powers under the said provision are limited to certain particular categories of cases. The right there is confined to jurisdiction and jurisdiction alone. 19. Although Shri Jaswant Singh, learned counsel appearing for the respondents, has tried to distinguish the law laid down in Shiv Shakti Co-op. Housing Society's case (2003) 6 SCC 659 by contending that the apex Court in the aforesaid case was dealing with the scope of the revisional powers of the High Court under section 115 of the Code and under section 40 of the 1973 Act, the powers of revision are very wide and therefore, according to the learned counsel no reliance could be placed upon Shiv Shakthi Co-op. Housing Society's case (2003) 6 SCC 659, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thi Ram's case [2004] 136 STC 261 (P H): 34. In view of various judgments referred to above and on the reading of section 61(2) of the Haryana Value Added Tax Act, 2003 it is concluded that section 61(2) of the Haryana Value Added Tax 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 Haryana Value Added Tax Act, 2003, contemplates transfer of pending proceedings pertaining to application, appeal, revision or other proceedings to the authorities constituted under the Haryana Value Added Tax Act, 2003 and to be disposed of by the authorities so constituted. Such authorities constituted under the Haryana Value Added Tax 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 of 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 Haryana General Sales Tax Act is required to be examined with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 344. 37. In view of the above discussion, we hold that right of appeal is a vested right as if exists on the date of commencement of lis. The lis can be said to commence under the Haryana General Sales Tax Act on the date when return is filed or is required to be filed. Therefore, the provisions of section 39(5) of the Haryana General Sales Tax Act would continue to govern the right of appeal vested in the petitioner which is saved in terms of section 4 of the Punjab General Clauses Act (as applicable to State of Haryana). 21. In our opinion, the proposition of law laid down in Khazan Chand Nathi Ram's case [2004] 136 STC 261 (P H) has no bearing on the decision of these petitions because in that case, the court was primarily concerned with the right of an appeal and the question as to whether a revision was also liable to be considered akin to a right of appeal was not, at all, involved in the case. There is no quarrel with the proposition of law laid down in Khazan Chand Nathi Ram's case [2004] 136 STC 261 (P H), that a right of appeal is a vested right as it exists on the date of commencement of the lis and the lis can be said to have commenced under the 1973 Act on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the authoritative pronouncements of the Supreme Court in Hari Shankar's case AIR 1963 SC 698 and also in view of the law down by this Court in Man Mohan Lal's case (1962) 64 PLR 51 and Chanan Dass's case 1967 PLR 1 (FB), we have no hesitation in holding that the power of revision conferred upon a revisional authority cannot be treated to be akin or similar to a right of appeal conferred upon a suitor. 24. Even otherwise, we find that section 40 of the 1973 Act merely conferred a power on the revisional authority giving suo motu powers to the revisional authority. No corresponding right was conferred upon the department to file a petition seeking revision of the order. An enabling provision in a statute conferring certain power upon a competent authority cannot be taken to be any right, much less a vested right in favour of a suitor-department. 25. We shall now deal with the provisions of section 4 of the General Clauses Act, 1898. A reading thereof shows that unless a different intention appears, the repeal does not affect any right, privilege or obligation or any legal proceedings or remedy in respect of any such right, privilege, obligation, liability, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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