9911796707
TMI Blog2015 (9) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... vested or an accrued right arises in favour of a party. The assessment year involved herein is 1989-90. The assessment under section 11(3) of the PGST Act was framed on August 29, 2003 which is clearly beyond the period of limitation of three years from the date of amendment and thus not sustainable in the eyes of law. - Decided against the revenue. - VATAPNo. 110, 111, 112, 113, 117, 118, 119, 120, 127, 147, 148, 149, 150, 151 of 2013 - - - Dated:- 26-2-2014 - AJAY KUMAR MITTAL AND MS. ANITA CHAUDHRY JJ. Ms. Radhika Suri, Additional Advocate-General Punjab, for the appellants. G. R. Sethi, M. R. Sharma and S. K. Mukhi for the respondent. JUDGMENT The delay in filing VATAPNos. 110 to 113, 117 to 120 and 127 of 2013 is condoned. 2. This order shall dispose of a bunch of 14 appeals, i.e., VATAPNos. 110 to 113, 117 to 120, 147 to 151 and 127 of 2013, as learned counsel for the parties are agreed that the issue involved in all these appeals is identical. However, the facts are being extracted from VATAPNo. 110 of 2013. 3. VATAPNo. 110 of 2013 has been preferred by the State under section 68 of the Punjab Value Added Tax Act, 2005 (in short, the Act ) ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account. As per the returns, the respondent had shown the purchase of sugarcane to the tune of ₹ 5,77,18,035 on which purchase tax payable at the rate of 8.8 per cent. comes to ₹ 50,79,187, which was pay able by the respondent along with the returns. Since the respondent did not deposit the purchase tax along with the returns, it was determined by way of framing assessment for the year 1989-90 by the AETC under section 11 of the PGST Act vide order dated August 29, 2003 creating an additional demand of ₹ 51,75,730 including the demand of ₹ 50,79,187 on account of purchase tax leviable on the purchase of sugarcane. The assessment order along with demand notice was sent to the respondent to deposit the amount within 30 days from the date of the order. The respondent instead of depositing the amount filed appeal under section 20 of the Act before the Deputy Excise and Taxation Commissioner (DETC), which was dismissed vide order dated May 20, 2005, annexure A3. The respondent filed second appeal before the Tribunal which was accepted vide order dated March 11, 2013, annexure A5, on the ground of limitation holding that after the expiry of five years, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby limitation of three years for completion of the assessment has been prescribed, any assessment order for assessment years up to 1997-98 can be passed after April 30, 2001. 9. In order to appreciate the controversy in its true perspective, it would be apposite to refer to the unamended provisions of section 11(1), (2) and (3) of the 1948 Act and the amended provisions whereby amendment has been made in the provisions by Ordinance of 1998 issued on March 3, 1998 which was replaced by Punjab Act 12 of 1998 published on April 20, 1998. Section 11(1), (2) and (3) (unamended) (1) If the Assessing Authority is satisfied without requiring the presence of dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns. (2) If the Assessing Authority is not satisfied without requiring the presence of dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence which the assessing authority may require the dealer to produce if he was not satisfied with the returns filed by the dealer. However, the position was changed with effect from March 3, 1998 which provided that the assessing authority was required to pass an order of assessment on the basis of returns filed within a period of three years from the last date prescribed for furnishing the last return in respect of such return for both assessment of tax due under sub section (1) as well as sub-section (3) of section 11 of the PGST Act. Sub section (2) of section 11 of the Act remains unamended. Under sub-section (2), wherever the Assessing Officer is not satisfied that return furnished by the assessee is correct and complete and his presence would be required for production of evidence relying in support of such return, shall serve a notice on such dealer requiring him to produce the relevant material on a date and place specified therein to substantiate the return. 11. Rule 20 of the PGST Rules prescribes that every registered dealer shall furnish return in form VIII quarterly within thirty days from the expiry of the quarter where the tax due is deposited in cash into the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the legislation itself, procedural law is generally retrospective. Procedural law is not a substantive right and its object is not to create any right but to prescribe periods within which legal proceedings be initiated or completed for enforcement of rights existing under substantive law. Statutes of limitation are thus retrospective insofar as they apply to all legal proceedings brought after their operation for enforcing cause of action accrued earlier. The apex court in Thirumalai Chemicals Limited v. Union of India [2011] 163 Comp Cas 380 (SC); AIR 2011 SC 1725, dealing with law of limitation has succinctly laid down as under (page 391 in 163 Comp Cas): 19. Law of limitation is generally regarded as procedural and its object is not to create any right but to prescribe periods within which legal proceedings be instituted for enforcement of rights which exist under substantive law. On expiry of the period of limitation, the right to sue comes to an end and if a particular right of action had become time-barred under the earlier statute of limitation the right is not revived by the provision of the latest statute. Statutes of limitation are thus retrospective insofar as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action may have arisen before the new provisions came into force. However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right. Further, the apex court in Vinod Gurudas Raikar v. National Insurance Co. Ltd. [1992] 75 Comp Cas 611 (SC); [1991] 4 SCC 333 observed as under (pages 614 and 615 in 75 Comp Cas): . . . So far the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act subject to two conditions. If, under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, for otherwise, the result will be to deprive to the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceedings so as to make it impractical for him to avail of the remedy. . . 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11(3) of the Act. It is also not disputed that the learned Tribunal has on consideration of the provisions of the PGST Act and ratio of judgments of cited case law has upheld the contention of the petitioner-dealer that the amended period of limitation provided under sub-section (3) being a piece of procedural law would be applicable to the pending cases like the present case. Learned Tribunal has also held that the assessments made by the Assessing Authority are not legally sustainable. It is also the admitted case of the State that the aforesaid findings of the Tribunal have not been challenged by the Sale Tax Department/Revenue. Thus, we do not consider it necessary to go into the question as to whether the amended provisions of sub sections (1) and (3) of section 11 providing a period of limitation would apply to the pending assessments for the years prior to March 3, 1998 or not as even if the amended provisions are made applicable prospectively and limitation of three years is assumed to commence with effect from March 3, 1998, admittedly, the assessment orders dated July 27, 2001 are clearly beyond the period of limitation of three years and thus not sustainable in the eyes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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