TMI Blog2000 (3) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... BU S. AND PHUKAN S.N. JJ. Adarsh Kumar Goel, Additional Advocate-General of U.P. (Niti Dikshit, Prashant Kumar, Pradeep Misra, S.N. Bhat, Kavin Gulati, Ms. Alka Agrawal and Ajay Agrawal, Advocates, with him), for the appellant. Vijay Hansaria, Dhruv Agarval and Praveen Kumar, Advocates, for the respondents. -------------------------------------------------- S.L. SARAF, J. -These are connected revisions filed by the assessee- applicant under section 11(1) of the U.P. Trade Tax Act, 1948 whereby the applicants have challenged the order dated March 2, 1997 passed by the Trade Tax Tribunal, Muzaffarnagar, whereby the Tribunal has allowed the application under section 39(2) of the U.P. Act No. 31 of 1995 and has rectified the original orders for the years 1974-75 to 1982-83 excluding the year 1977-78. The said orders were passed on July 27, 1989, July 27, 1989, February 15, 1989, October 30, 1989, January 29, 1990, November 7, 1989 and January 30, 1990 respectively. 2.. Mr. Bharatji Agarwal, learned counsel for the applicants, has attacked the orders passed on the ground that the same were passed beyond time as prescribed under the provisions of section 39(2) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or the Commissioner of Trade Tax may by September 30, 1995, make an application to such authority or court for review of the assessment or order and thereupon such authority or court may review the proceeding make such order, varying or revising the order previously made, as may be necessary to give effect to the provisions of the principal Act as amended by this Act. (3) The assessing, appellate or revising authority, as the case may be, may within the period of one year from the commencement of this section or within the period specified in section 22 of the principal Act, whichever expires later, make any rectification in any order passed by it where such rectification becomes necessary in consequence of the amendment of the principal Act: Provided that no rectification which has the effect of enhancing the assessment, penalty or other dues, shall be made unless the authority concerned has given notice to the dealer or person concerned of his intention to do so and has allowed him a reasonable opportunity of being heard. 4.. Mr. Bharatji Agarwal on the basis of the aforesaid provisions of the Act has submitted that since none of the orders for the said relevant years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e redundant. 7.. I have considered the submissions made by both the learned counsel for the parties carefully. In my view of the matter section 39 which was brought into effect by the amending Act was a enabling provision for the assessing, appellate or the revising authorities to rectify orders passed prior to the commencement of the said section in conformity with the amendment made in the principal Act within a time frame. It was specifically provided for that if the assessee or the Commissioner files application within September 30, 1995 for review the aforesaid authority shall consider those cases and pass orders varying or revising the orders previously made to give effect to the provisions of the principal Act as amended by the said amending Act of 1995. The authorities were given time to review or rectify its orders within one year from the passing of the said section, i.e., March 14, 1995. The application was to be made by September 30, 1995 and the rectification order was to be passed by March 14, 1996. Second part of sub-section (3) of section 39 of the amending Act, however, extends the time for passing of the order of rectification. By the said provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prescribed under section 39 of the Act. Such orders of the Tribunal are without any authority of law and as such are hereby quashed and set aside. 8.. In the result the aforesaid revision applications succeed and are al- lowed. There will be no orders as to costs. The department appealed to the Supreme Court.] Adarsh Kumar Goel, Additional Advocate-General of U.P. (Niti Dikshit, Prashant Kumar, Pradeep Misra, S.N. Bhat, Kavin Gulati, Ms. Alka Agrawal and Ajay Agrawal, Advocates, with him), for the appellant. Vijay Hansaria, Dhruv Agarwal and Praveen Kumar, Advocates, for the respondents. JUDGMENT The judgment of the Court was delivered by S. RAJENDRA BABU, J.- In these batch of cases, the question for consideration is the interpretation of section 39 of the Uttar Pradesh Sales Tax (Amendment) Act, 1995 (U.P. Act No. 31 of 1995) (hereinafter referred to as the Amendment Act ). The turnover in respect of rectified spirit and denatured spirit was held to be non-taxable under the U.P. Sales Tax Act, 1948 (hereinafter referred to as the principal Act ) by the Trade Tax Tribunal, Muzaffarnagar (hereinafter referred to as the Tribunal ) in respect of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14, 1996, and not beyond that time. In the present case the orders of the Tribunal had been passed on March 22, 1997, as such, the same were held to have been made beyond time as prescribed under section 39 of the Amendment Act. This order is called in question in these appeals. 3.. For purposes of clear understanding, we may set out the relevant provisions hereunder: Section 22 of the principal Act: 22.. Rectification of mistakes.-(1) The assessing, appellate or revising authority or the Tribunal may, on its own motion or on the application of the dealer or any other interested person rectify any mistake in its order, apparent on the record within three years from the date of the order sought to be rectified: Provided that where an application under this sub-section has been made within such period of three years, it may be disposed of even beyond such period: Provided further that no such rectification as has the effect of enhancing the assessment, penalty, fees or other dues shall be made unless reasonable opportunity of being heard has been given to the dealer or other person likely to be affected by such enhancement. (2) Where such rectification has the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the view taken by the High Court is erroneous and does not correctly interpret the provisions of section 39(2) of the Amendment Act. It is submitted that the whole object of section 39(2) is that any order passed, modified, set aside or quashed by the assessing, appellate or revising authority or by a court will have to be brought in conformity with the provisions of the principal Act as amended by the Amendment Act. The expression subject to the provisions of sub-section (3) would only provide for rectification also. Otherwise, if the provisions relating to rectification alone will be applicable there is no need to have provided for a specific provision for review at all. Review or rectification in this case would arise only to bring in conformity an order with the amended provisions, and either of these powers is distinct and separate though they have certain restrictions which have to be adhered to. 5.. The respondents would, however, contend that section 39(2) and (3) has to be read together and it would mean that an application made under section 39(2) can be disposed of only within one year from the date of enforcement of the amendment Act or within three years of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s different from the scope of review though sometimes they may overlap. From the scheme of the Amendment Act, it is clear that both the powers of review and rectification were conferred upon different authorities to modify the earlier order to give necessary effect to the provisions of the principal Act as amended by the Amendment Act. When two specific and independent powers have been conferred upon the authorities, both the powers can be exercised alternatively. In the present case, if the interpretation adopted by the High Court is to be accepted then the provision for review becomes totally redundant or otiose and there will be no difference between the power of review and power of rectification. As stated earlier, the scheme of the Amendment Act is that an application will have to be made to an authority within the specified date for review of the assessment order or such other order, as the case may be, for varying the same to bring it in terms with the Amendment Act while the period of making the order pursuant to rectification is coalesced with section 39 of the Amendment Act imposing certain limitations of time. Those limitations cannot be read into sub-section (2) of se ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
