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TMI Blog2015 (7) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. - VATAP No. 13 of 2013 (O&M) - - - Dated:- 20-7-2015 - S. J. Vazifdar, ACJ And G. S. Sandhawalia,JJ. For the Petitioner : Mr Rohit Gupta, Adv. For the Respondent : Ms Mamta Singla Talawar, AAG JUDGMENT S J Vazifdar, Acting Chief Justice 1. This is an appeal under Section 36 of the Haryana Value Added Tax Act, 2003, against the order of the Special Bench of the Haryana Tax Tribunal dated 17.11.2009. The Special Bench was consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n unless such person has been given a reasonable opportunity of being heard. 3. The appellant contends that the following substantial question of law arises in this appeal:- 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. 4. The appellant carries on business inter alia of the export of medicines. The appellant returned an aggregate turn over of about ₹ 7.25 crores for the year 1998-99 in the quarterly returns filed with the Assessing Authority. At the time of assessment, the assessee contended that its true turnover as per books of accounts was only ₹ 4.94 crores. The appellant furnished the balance-sheet along with a reconciliation statement which was accepted by the Assessing Authority. The assessing authority accepted the gross turnover to be ₹ 4.94 crores as per the books. As the entire turnover of ₹ 4.94 crores related to exports, the same was exempted from tax. It is important to note a few aspects regarding the assessment order made by the ETO-cum-Assessing Authority under the HG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant filed a reply to the above notice. For the purpose of this appeal, it is necessary only to note the appellant's contention that the revisional authority had no jurisdiction to invoke the provisions of Section 40 of the HGST Act. 7. The revisional authority by an order dated 28.04.2004 held that this was a fit case under Section 40. On merits, it was held that the appellant was liable to tax on account of sale of Duty Entitlement Pass Book (DEPB) license to exporters. The revisional authority accordingly sent the matter back to the Assessing Authority for determining the tax liability on account of sale of DEPB by the appellant. 8. The appellant filed an appeal before the Tribunal. As we mentioned earlier, the members of the Division Bench of the Tribunal differed on the question as to whether the jurisdiction under Section 40 was rightly invoked or not. The matter was, therefore, referred to a special bench, which answered the question in the affirmative. 9. As noted by the Tribunal, when the assessment order was passed, it was a contentious issue. The DEPB was held to be goods by a Division Bench judgment of the Delhi High Court dated 24.07.2001 in Philco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to said proceedings or order as he may think fit. The period of limitation prescribed for exercise of power under this sub-section is five years from the date of the order. Sub-section (2) of section 40 empowers the State Government to issue notification conferring on any officer the powers of the Commissioner under sub-section (1). Sub-section (3) of section 40 represents embodiment of the rule of hearing. It provides that no order under section 40 can be passed adversely affecting any person unless such person is given a reasonable opportunity of being heard. 9. The above analysis of sections 31 and 40 shows that the Legislature has conferred powers upon the Assessing Authority and the Commissioner to deal with different types of cases and has prescribed different periods of limitation for exercise of powers under the two sections. While the Assessing Authority can undertake the exercise for reassessment if it discovers that the turnover of the business of a dealer has been under-assessed or escaped assessment, the Commissioner has been vested with the power to call for the record of pending as well as decided cases to satisfy himself as to the legality and/or propriety of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a co-operative institution having a sugarcane factory, included harvesting charges incurred in the purchase of sugarcane to the factory, the assessing authority without applying his mind omitted to include those expenses in the taxable turnover, and the Deputy Commissioner in exercise of his powers under section 21(2) of the Karnataka Sales Tax Act set aside the assessment and directed the assessing authority to redo the assessment by including in the purchase turnover, the harvesting charges incurred by the assessee. Held, that since the assessing authority did not apply his mind to the disputed turnover, the revising authority could not have invoked the powers under section 21(2) of the Act. The argument of Shri Jaswant Singh that the expression legality or propriety used in section 40(1) of the Act should be liberally construed so as to include a case of escaped assessment sounds attractive but having regard to the scheme of the Act, we are unable to accept the same. If the Legislature intended to invest the revisional authority with the jurisdiction and power to deal with all types of cases, then it would have incorporated a non obstante clause in section 40. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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