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2015 (3) TMI 957 - PUNJAB AND HARYANA HIGH COURTInvocation of extended period - Revision of assessment - Held that:- Section 34(1) of the Act confers plenary power, upon a Commissioner, to call for the record of any case pending before or disposed of by any taxing authority and satisfy himself as to the legality or propriety of such order or proceeding, insofar as it may be prejudicial to the interest of the State. The first part of second proviso, to section 34(1) of the Act, prohibits exercise of this power after expiry of three years, from the date of supply of a copy of such order, to the assessee. The second part of second proviso, to section 34(1) of the Act, however, provides that power under section 34(1) of the Act may be exercised after expiry of the period of three years, in case of retrospective legislation, if an order is passed by the Tribunal, or an order is passed by the High Court or the Supreme Court of India. Admittedly, the order in Food Corporation of India's case [2009 (3) TMI 951 - PUNJAB AND HARYANA HIGH COURT] settled a controversy relating to incidental charges. The fact that the Department held a similar view or that similar orders were passed before the judgment in Food Corporation of India's case [2009 (3) TMI 951 - PUNJAB AND HARYANA HIGH COURT], is irrelevant. The controversy with respect to incidental charges was finally settled by the High Court and, therefore, entitled the Commissioner to exercise power to revise an assessment even after expiry of the period of three years. The Tribunal's finding that as order could have been revised without waiting for the High Court, is based upon a misreading of the nature of power, conferred by the second part of the second proviso to section 34(1) of the Act. It would, therefore, be necessary to reiterate that power under section 34(1) of the Act to revise an assessment order has to be exercised within three years but where there is, a change in law, a decision of a Tribunal in a similar case or a declaration of law by the High Court or the honourable Supreme Court of India the power may be exercised after expiry of the period of three years. The fact that the Department may have held a similar view, that has been upheld by the honourable Supreme Court or the High Court, shall not impede the exercise of this power. The power, however, has to be exercised within "reasonable time", which, depending upon the facts, would vary from case to case. - appeal is allowed, the impugned order is set aside and the matter is remitted to the Tribunal - Decided in favour of Revenue.
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