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TMI Blog2020 (11) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... 012. Whereafter, a notice under Section 26 of the RVAT Act, 2003, which pertains to escaped assessment was issued on 27/5/2016 and after hearing the assessee, the Commercial Taxes Officer, Special Circle-II, Bhilwara by its order dated 22/6/2016 came to the conclusion that the assessee was allowed excess subsidy based on its interpretation of the words tax payable in the Scheme and consequently raised the demand along with interest. It was determined that the amount of partial exemption granted under the CST Act was not tax payable - It is not in dispute that the RIPS, 2003 did not contain any provision for reopening the orders passed under the Scheme or for their rectification. The only provisions which dealt with variation of the orders were for review and appeal under Clause 12, whereby, SLSC and DLSC were empowered to review their decisions and SLSC was made appellate authority and power of revision was given to the State Government under Clause 13, whereby, it could suo moto or otherwise review an order passed by the Screening Committee. The law on the aspect is well settled that if the right of the assessing authority to reopen the assessment is barred under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 to 30/6/2011, 1/7/2011 to 30/9/2011, 1/10/2011 to 31/12/2011 and 1/1/2012 to 31/3/2012. On 27/5/2016 the department issued show cause notices under Sections 26 and 55 of the RVAT Act, 2003, for changing the base tax payable by the assessee. The assessee submitted reply to the show cause notices. On 22/6/2016, the department passed final order under Section 26 and 55 of the RVAT Act, 2003 read with Clause 9 (B)(viii) and 10 of the RIPS, 2003, whereby, the interest subsidy allowed to the assessee for various quarters was modified and the demand along with interest was created. Feeling aggrieved the assessee filed appeals before the appellate authority, Commercial Taxes, Ajmer. The appellate authority by its order dated 31/3/2017 allowed the appeal qua one quarter holding the assessment as time barred and for the rest three quarters dismissed the appeals filed by the assessee. The assessee then approached the Rajasthan Tax Board, Ajmer aggrieved by the order dated 31/3/2017. The Tax Board by the impugned judgment dated 15/10/2018 allowed the appeals and set aside the orders dated 22/6/2016 and 31/3/2017. Learned counsel for the petitioner submitted that the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, has no basis and, consequently the judgment passed by the Tax Board deserves to be quashed and set aside. Reliance was placed on Sree Bank Ltd. Vs. Sarkar Dutt Roy Company : AIR 1966 SC 1953, State of Karnatake vs. Hansa Corporation : AIR 1981 SC 463 and Commissioner of Income Tax, Calcutta vs. National Taj Traders : AIR 1980 SC 485 . Further submissions were made that once the Tax Board had come to the conclusion that the Assessing Officer had no jurisdiction to pass the order impugned, there was no occasion for the Tax Board to have gone into the merits of the dispute raised inasmuch as, the same has created a precedent, which was not necessary for adjudication of the dispute. Without prejudice to the above submission, it was submitted that the determination made on merits also is factually incorrect and is based on wrong interpretation of the applicable provisions and, therefore, the same deserves to be set aside. Learned counsel appearing for the respondent assessee vehemently opposed the submissions. It was submitted that the revision petitions have no substance inasmuch as the Tax Board has thoroughly and meticulously dealt with all the issues involved and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidy to the respondent assessee by orders dated 1/12/2012, 27/2/2013, 29/3/2013 and 21/6/2013 for four quarters beginning from 1/4/2011 and ending with 31/3/2012. Whereafter, a notice under Section 26 of the RVAT Act, 2003, which pertains to escaped assessment was issued on 27/5/2016 and after hearing the assessee, the Commercial Taxes Officer, Special Circle-II, Bhilwara by its order dated 22/6/2016 came to the conclusion that the assessee was allowed excess subsidy based on its interpretation of the words tax payable in the Scheme and consequently raised the demand along with interest. The appellate authority on appeals filed by the assessee, negated all the objections raised pertaining to the exercise of jurisdiction by the Assessing Officer for three quarters and also upheld the determination made on merits. The Tax Board on appeals filed by the assessee by its impugned judgment dated 15/10/2018 inter alia came to the following conclusion qua the jurisdiction of the assessing authority: It was held that the provisions of RVAT Act, 2003 were not applicable to RIPS, 2003 and, therefore, the order passed under RIPS, 2003 could not be reopened. On merits of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such orders. It need not be emphasized that the introduction of said provision in the subsequent Schemes, making applicable the provisions of RVAT Act, 2003, highlights the stark absence of similar provision in RIPS, 2003. The important development is the amendment made in RIPS, 2003 in the year 2018 vide order dated 30/4/2018, whereby, several amendments were introduced to the RIPS, 2003 and insofar as relevant for the present purpose, its clause 5 reads as under: 5. Insertion of Clause 9A.- After the existing sub-clause (C) of clause 9 and before the existing clause 10 of the scheme, the following new clause 9A shall be inserted, with effect from 01.07.2017, namely:- 9A. PROCEDURE FOR DISBURSEMENT OF SUBSIDY (a) For Capital Investment Subsidy (Interest Component) - (i) . (ii) (iii) . (iv) (v) (vi) Any order passed under this clause by the Deputy Commissioner of State Tax/Assistant Commissioner of State Tax or Assistant Commissioner/Commercial Taxes Officer or the officer authorized by the Commissioner in this behalf, shall be subject to the provisions of the Rajasthan Goods and Services Tax Act, 2017 or the Rajas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicability of RVAT Act, 2003 to RIPS, 2003 prior to 1/7/2017 cannot be accepted. The law on the aspect is well settled that if the right of the assessing authority to reopen the assessment is barred under the law for the time being in force, no subsequent enlargement of right can revive such right in the absence of express words or necessary intendment (see S.S.Gadgil v. Lal Co. : AIR 1965 SC 171 ). Further, in State of Tamil Nadu vs. M/s Star Tobacco Co. : AIR 1973 SC 1387 , it was laid down by the Supreme Court that jurisdiction to reopen the assessment is not a question of mere procedure but a power and, therefore, the general principle that a procedural provision would be retrospective, has also no application. As already observed, the provisions contained in RIPS, 2010 and RIPS, 2014 cannot be read into RIPS, 2003 and the amendment to RIPS, 2003 being with express limited retrospectivity, the same cannot apply to the cases in hand. In view thereof, the apparent exercise of power by the assessing officer under Section 26 of the RVAT Act, 2003 for reopening the order passed in absence of any enabling power cannot be sustained. So far as the judgments relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S, 2003, at the relevant time, cannot be faulted. So far as the determination made by the Tax Board regarding the merits of the order of reassessment is concerned, the law is well settled that notwithstanding that a matter may be disposed of on a preliminary issue, the authority must pronounce judgment on all issues. The exception being that if the matter can be disposed of on an issue of law pertaining to jurisdiction or bar created by law, the matter can be dealt with in accordance with decision on such issue. As such, it was not necessary for the Tax Board to deal with the issue relating to merits of the dispute. However, once this Court has also come to the conclusion regarding lack of jurisdiction in the assessing authority to pass the assessment order, the determination made by the Tax Board on merits, loses its significance. Therefore, in the circumstances of the case, it is left open for the petitioner department to agitate the issue, as determined by the Tax Board, in an appropriate case and to that extent, as this Court has not dealt with the aspect on merits, it would always be open for the petitioner department to raise and agitate the issue, if the occasion ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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