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TMI Blog2023 (5) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... P-1) till the order dated 19.12.2002 (Annexure P-3) passed by Joint Excise and Taxation Commissioner (A), Hissar have attained finality. Even if the Department has filed application for modification of the order of the Tribunal dated 03.10.2012 (Annexure P-4) as reflected in the affidavit filed by the Excise and Taxation Commissioner dated 18.03.2020, the time taken from 03.10.2012 till 09.01.2020 (date of filing application) i.e. 8 years cannot be condoned as per Section 35 of the Act, 2003. There is a period of one year provided as per the Act, 2003 for seeking review of any order passed by the Tribunal. Hence, the time for getting the reassessment order reviewed has already elapsed and the reassessment order has already attained finality. The order of the Tribunal dated 03.10.2012 (Annexure P-4) cannot be reviewed after a gap of 8 years and as on today almost 13 years have gone by and even at this stage, application filed by the respondents for reviewing order dated 03.10.2012 (Annexure P-4) is still pending for adjudication - Moreover, Section 18 of HVAT Act is not attracted in the present case for deciding the remanded case in two years as the present case was not remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ryana Tax Tribunal, and on account of difference of opinion between the members, the case was referred to third member to obtain the majority decision, who dismissed the appeal. The petitioner challenged that order by way of filing CWP-19799- 2006. Vide order dated 19.01.2010 passed in CWP-19799-2006, this Court quashed all the orders passed by the authorities below and remitted the case back to the Tribunal for fresh decision. Thereafter, vide order dated 03.10.2012 (Annexure P-4), the Tribunal passed the order in favour of the petitioner by holding that the cross-examination of third party was warranted and in this backdrop, the decision given for reassessment was without following principles of natural justice. The relevant portion of the said order is reproduced as under:- 15. Hence, from the legal position as discussed, it would follow that it is not mandatory in every case that the cross-examination of the third party should invariably be allowed by the Assessing Authority. Decidedly, the assessment proceedings are quasi judicial proceedings and subject to observance of the principles of natural justice. Whether cross-examination of a person providing information is requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter, gave an application to the Deputy Excise and Taxation Commissioner, Hisar dated 27.04.2018 (Annexure P- 11) for grant of refund. 10. The petitioner has filed the present writ petition seeking direction to the respondents to refund an amount of Rs. 17,06,322/- alongwith interest as the judgment dated 05.12.2014 passed by this Court in VATAP-173-2013 (Annexure P-6) dismissing the appeal filed by State of Haryana has attained finality. 11. On notice of this petition, written statement on behalf of respondents No. 1 to 3 dated 17.01.2019 has been filed by the Excise Taxation Officer-cum-Assessing Authority, Hisar. All the facts till dismissal of the VATAP-173-2013 on 05.12.2014 filed by State of Haryana had been inhibited. The further stand of the respondents therein was that the application for refund is premature as the order dated 03.10.2012 (Annexure P-4) passed by the Tribunal has not attained finality and as per Section 20(5) of the Haryana VAT Act, 2003 (hereinafter referred to as Act, 2003), refund cannot be granted. The said Section is as under:- 20(5) Any amount refundable to any person as a result of an order passed by any court, appellate authority or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.01.2020 by the Department as per the affidavit dated 18.03.2020. Hence, the period of one year has already elapsed and the said application is not maintainable. Moreover, once the order dated 03.10.2012 (Annexure P-4) has not been modified, the Assessing Authority has no jurisdiction to issue notices dated 12.03.2015 (Annexure P-7) and 13.04.2015 (Annexure P-9). He has argued that since the provision for filing review under Section 35 was available with the department, the Assessing Authority could not initiate reassessment proceedings on its own level. 15. Learned counsel for the respondents has argued that the provisions of Section 18 of HVAT Act to decide the remanded case within two years cannot be made applicable in this case as the Tribunal had not remanded the case back and the case is to be remanded even now to the Assessing Authority keeping in view that the High Court had dismissed the VATAP-173-2013 filed by the State holding that right of cross-examination to the third party cannot be denied to assessee during reassessment proceedings. Moreover, an application (Application for deciding STA No. 07 of 2003-04) has already been filed before the Tribunal on 09.01.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal of its own accord after giving notice to the parties concerned, review on account of some mistake or error of law or facts, any order made by it before the expiry of eight years from the date of the order. 18. There is a period of one year provided as per the Act, 2003 for seeking review of any order passed by the Tribunal. Hence, the time for getting the reassessment order reviewed has already elapsed and the reassessment order has already attained finality. The order of the Tribunal dated 03.10.2012 (Annexure P-4) cannot be reviewed after a gap of 8 years and as on today almost 13 years have gone by and even at this stage, application filed by the respondents for reviewing order dated 03.10.2012 (Annexure P-4) is still pending for adjudication. Moreover, Section 18 of HVAT Act is not attracted in the present case for deciding the remanded case in two years as the present case was not remanded back to the Assessing Authority. As per Section 35 of the Act, 2013, even review application is not maintainable and has to be dismissed on the ground of delay. 19. Keeping in view the observations made above, the writ petition is allowed and direction is given to the respo ..... 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