TMI Blog2007 (5) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... omain of field of legislation. If the contention that the provisions of the Scheme would also apply to tax laws created by the State is accepted, it being beyond the legislative competence, would amount to a colourable piece of legislation. This appeal, thus, being devoid of any merit, is dismissed with the aforementioned observations. - Civil Appeal No. 2407 of 2007 - - - Dated:- 9-5-2007 - Judge(s) : S. B. SINHA., MARKANDEY KATJU. JJ. T.L.V. Iyer, Senior Advocate (P.V. Dinesh and K.B. Sandeep Advocates, with him) for the respondent. Mohan Parasaran, ASG. (D.L. Chidananda and B.V. Balramdas, Advocates, with him) for UOI. Huzefa Ahmadi, Ejaz Maqbool, Nakul Dewan, Vikash Singh and Ms. Taruna Singh, Advocates, for the appellant. JUDGMENT The judgment of the court was delivered by S.B. SINHA J. - Leave granted. The legality of a notice issued by the Deputy Commissioner of Commercial Taxes, Kollam, vis-a-vis the provisions of the Kar Vivad Samadhan Scheme, 1998 (for short, "the Scheme"), framed under the Finance (No. 2) Act, 1998, is in question in this appeal which arises out of a judgment and order dated August 3, 2006, passed by a Division Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he term "any other law for the time being in force" must be given a wide meaning so as to cover not only the direct tax or indirect tax envisaged thereunder but also the sales tax laws of the State in the light of the provisions of clause (3) of article 286 of the Constitution of India and sub-clauses (c) and (d) of clause (29A) of article 366 thereof. (ii) In any event, the purported exercise of suo motu revisional power by the Deputy Commissioner must be held to be wholly without jurisdiction. The Scheme was enacted with a view to achieve the purposes mentioned therein, viz., recovery of tax arrears by way of settlement. It applies provided the conditions precedent therefor are satisfied. Sub-section (3) of section 90 of the Scheme, whereupon reliance has been placed, reads as under: "(3) Every order passed under sub-section (1), determining the sum payable under this Scheme, shall be conclusive as to the matters stated therein and no matter covered by such order shall be reopened in any other proceeding under the direct tax enactment or indirect tax enactment or under any other law for the time being in force." "Immunity", however, is provided under section 91 of the Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the said Act. Power to tax, it is well-settled, carries with it power to do all things which are necessary and ancillary therefor including taking preventive measures in regard to evasion of tax. Once it is found that a statutory authority had the jurisdiction to reopen a proceeding or set aside the order of the assessing authority, only the higher authorities can interfere therewith. Only because the appellant had taken recourse to the Scheme, the same, in our opinion, would not attract either sub-section (3) of section 90 of the Scheme or section 91 thereof so as to cover a subject which is within the exclusive domain of the State Legislature. In that sense, the said Scheme must be read as limited to those laws which Parliament has the legislative competence to enact and not to those which fall within the exclusive legislative field of a State, save and except where expressly so stated or inferred by necessary implication. A Legislature is presumed to enact a law only within its domain of field of legislation. If the contention that the provisions of the Scheme would also apply to tax laws created by the State is accepted, it being beyond the legislative competence, wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case, the respondents have to establish adjustment of refund, which had been made against arrears after due notice to the appellant and which is denied by her, and hence admits of investigation of facts and serious debate on the question. Such an error cannot be stated to be an inadvertent error of clerical or arithmetical nature, so plain as to be rectified without much ado." Sushila Rani [2002] 2 SCC 697 has been followed in Hira Lal Hari Lal Bhagwati [2003] 5 SCC 257 wherein it has been stated: "18. The present case comes under the tax arrears payable under the indirect tax enactment. Section 89 of the Kar Vivad Samadhan Scheme, 1998, deals with particulars to be furnished in the declaration and section 90 of the Scheme deals with time and manner of payment of tax arrears. Sub-section (2) of section 90 provides that the declarant shall pay the sum determined by the designated authority within thirty days of the passing of an order by the designated authority and intimate the fact of such payment to the designated authority along with proof thereof and the designated authority shall thereupon issue the certificate to the declarant. Sub-section (3) of section 90 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no sanction having been accorded therefor, the charges under the Penal Code would not." The question came up for consideration yet again before this court in Alpesh Navinchandra Shah v. State of Maharashtra [2007] 2 SCC 777 wherein Hira Lal Hari Lal Bhagwati [2003] 5 SCC 257 was distinguished by this court stating: "At the time of hearing, learned counsel for the petitioner relied upon the case of Hira Lal Hari Lal Bhagwati v. C.B.I. [2003] 5 SCC 257. According to learned counsel for the respondent the said relied upon case was a case of duty evasion and appellant therein was booked by customs authority and therefore, customs duty was paid under KVSS and further in the criminal proceedings under section 120B and 420 IPC initiated by CBI was quashed by this court. Therefore, it is admitted that the above cited case is different from the present case as in the case in hand the detention order was issued under the COFEPOSA Act against the petitioner with objective to prevent the nefarious activities in future. Therefore, the immunity granted by the Settlement Commission from fine, penalty and prosecution under the provisions of the Customs Act and IPC have no bearing on the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time for appeal against the order has not expired; (b) the order has been made the subject of an appeal to the Appellate Assistant Commissioner or the Appellate Tribunal or of a revision in the High Court; or (c) more than four years have expired after the passing of the order referred to therein. (2A) Notwithstanding anything contained in sub-section (2), the Deputy Commissioner may pass an order under sub-section (1) on any point which has not been decided in an appeal or revision referred to in clause (b) of sub-section (2), before the expiry of a period of one year from the date of the order in such appeal or revision or before the expiry of the period of four years referred to in clause (c) of that sub-section, whichever is later. (3) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard." We do not see any reason as to why the observations contained therein shall not be treated to be prima facie ones and, thus, all contentions of the parties shall remain open. We have no doubt, in our mind, that the appropriate authority would consider the matter with an open mind irrespective o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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