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TMI Blog2012 (5) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. Earlier, as mentioned above, in respect of the year 2003-04, the Sales Tax Officer had passed an assessment order on 24.02.2005. As a result of the said assessment order, refund became due to the petitioner. Shortly thereafter, on 02.03.2005, the petitioner filed a refund claim in respect of a sum of Rs. 1,78,58,291/-. 4. The refund, however, was not made to the petitioner. Instead, on 05.07.2007 a notice was issued to the petitioner for re-assessment in respect of the year 2003-04. This notice was purportedly sent under section 24 of the Delhi Sales Tax Act, 1975. 5. The petitioner challenged the issuance of the said notice dated 05.07.2007 by way of writ petition being W.P. (C) No. 8526/2008. During the pendency of the writ petition the respondents were directed to deposit a sum of Rs. 1,78,58,219/- with the Registrar of this court. The said writ petition was finally decided by virtue of the judgment and order dated 25.11.2009. The Division Bench noted that the notice had been issued purportedly under section 24 of the Delhi Sales Tax Act. The said section also contained a provision in sub-section (2) with regard to the limitation for the passing of an order of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Sales Tax/Vat and another: (2008) 16 VST 329 (Delhi), a Division Bench of this Court had arrived at the following conclusion:- "It is true that a fresh power of revision was conferred on the Commissioner by an amendment brought about to the DVAT Act on November 16, 2005 when section 74A was inserted in that Act but this did not resuscitate or resurrect the long-dead revisionary power conferred on the Commissioner under section 46 of the DST Act. It had no retrospective effect." 9. At this juncture, we may point out that the Delhi Value Added Tax Act, 2004 (hereinafter referred to as the DVAT Act) had come into force with effect from 01.04.2005 and the earlier Act, that is, the Delhi Sales Tax Act, 1975 had been repealed. The power of revision under the old act was under Section 46 thereof. However, there was no provision for revision under the DVAT Act as it was initially introduced. It is only by way of a subsequent amendment, with effect from 16.11.2005, that section 74A, which gave the power of revision to the Commissioner, was introduced. The Division Bench in International Metro Civil Contractors (supra) held that section 74A did not have any retrospective effect. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion has been seriously opposed by Mr. Ganesh, learned senior counsel for the petitioners. Ordinary, we would have proceeded to address the same but the first question, we are inclined to think, really requires to be addressed. 24.(sic) In view of the preceding analysis, let this matter be placed before the Hon'ble Chief Justice for constitution of an appropriate larger Bench." 14. Thereafter, by virtue of the judgment dated 02.09.2011, a Full Bench of this court decided WP(C) 274/2010 [Dharam Pal Satya Pal Ltd & Anr v. The Commissioner, Value Added Tax & Anr] and other connected matters. 15. As noted in the very first paragraph of the Full Bench decision, the central issue before the Full Bench was 'whether the Commissioner under the DVAT Act can exercise suo motu power of revision under Section 74A of the DVAT Act in respect of assessments that have been completed under the Delhi Sales Tax Act, 1975?' The Full Bench answered this in the affirmative provided the power is invoked and exercised during the period of limitation as stipulated under Section 74A and subject to the other conditions precedent stipulated therein. 16. One of the contentions raised before the Full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y indicate a different intention. ..." (Underlining added) A similar view was expressed in the Supreme Court decision in Jayantilal Amrathlal v. The Union of India: 1972 (4) SCC 174, in the following words: "... In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to, enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question." (Underlining added) The Full Bench also took note of the observations of the Supreme Court in the case of Mysore Rolling Mills (P) Ltd v. Collector of Central Excise: AIR 1987 SC 1488 to the following effect:- "5. The only other submission of the appellant which remains for consideration is the tenability of the contention that the period of limitation under the old provision having expired the five year rule which has been applied was not available to be applied. Undoubtedly, the rule i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act." By virtue of sub-section (1), inter alia, the Delhi Sales Tax Act, 1975 and the Delhi Sales Tax on Works Contract Act, 1999 were repealed. Notwithstanding this, sub-section (2) of Section 106 stipulates that the repeal shall not affect the previous operation of the said Acts or any right, title, entitlement, obligation or liability already acquired, accrued or incurred thereunder. Sub-section (3) of Section 106 provides that, inter alia, any order under the repealed Acts shall be deemed to have been made under the DVAT Act, as if the DVAT Act was in force on the date on which the order was passed. Thus, an assessment order passed under the Delhi Sales Tax Act, 1975, for the purposes of sub-sections (2) and (3) of Section 106 of the DVAT Act, would be deemed to be an order passed under the DVAT Act. 20. While construing the provisions of Section 106 of the DVAT Act, the Full Bench visualised three situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd till then no final or vested right accrues in favour of the assessee. (e) The amendment brought by the legislature retrospectively incorporating Section 74A with WP (C) No.974/2010 Page 14 of 22 effect from 1.4.2005 has been done to further elucidate the legislative intention and has to be given full effect to. The said amendment has been brought in the statute book by ex abundanti cautela and in essence, removes the anomaly and is only curative in nature. (f) The proceeding initiated under the DST Act is saved by the DVAT Act and further the proceedings could be initiated under Section 74A during the period of limitation as stipulated under Section 74A subject to the conditions precedent stipulated therein. (g) The decisions in International Metro Civil Contractors (supra) and LG Electronics (India) Ltd. (supra) are overruled to the extent indicated hereinabove." (Underlining added) 22. What is relevant for our purposes is sub-paragraph (f) of the said paragraph 67 of the said decision. It is clear that the Full Bench concluded that proceedings initiated under the Delhi Sales Tax Act, 1975 were saved by the DVAT Act and further that the proceedings could be initiated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is barred by limitation. 25. We have come to this conclusion specifically on account of the findings recorded by the Full Bench and in particular in paragraph 67 (f) of the said judgment dated 02.09.2011. The Full Bench made it clear that proceedings initiated under the Delhi Sales Tax Act 1975 are saved by the DVAT Act and that proceedings could be initiated under section 74A of the DVAT Act during the period of limitation as stipulated under section 74A subject to the conditions precedent stipulated therein being satisfied. Therefore, the Full Bench made it clear that if there was any proceeding which had been initiated under the Delhi Sales Tax, Act 1975 on the date on which the repeal of the Act came into effect and the DVAT Act was brought into force, the same could be continued and even fresh proceedings could be initiated under section 74A but this was subject to the period of limitation as stipulated under section 74A itself. It was also subject to the other conditions precedent stipulated in the said provision being satisfied. 26. In the present case, we find that no revisional proceeding had been initiated under the Delhi Sales Tax Act, 1975 on the date (01.04.2005) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted. First of all, once the provisions of Section 46 of the Delhi Sales Tax Act, 1975 were repealed and replaced by the provisions of Section 74A of the DVAT Act qua revision, it would be the latter provision which would apply on and from 01.04.2005. Secondly, the power of revision under Section 46 of the Delhi Sales Tax Act, 1975 and that under Section 74A of the DVAT Act do not co-exist. Because, the two cannot have simultaneous existence. The death of one (Section 46 of the Delhi Sales Tax Act, 1975) has ushered in the birth of the other (Section 74A of the DVAT Act). Thirdly, in view of Section 106(2) and (3) of the DVAT Act as interpreted by the Full Bench, an order of assessment passed under the Delhi Sales Tax Act, 1975 shall be deemed to be an order under the DVAT Act. Thus, after the repeal of the Delhi Sales Tax Act, 1975 and introduction of the DVAT Act, it is the power of revision encapsulated in Section 74A thereof which holds the field. If the power of revision is invoked, it has to be under Section 74A of the DVAT Act and in terms thereof. The provisions of Section 46 cannot be applied to post 01.04.2005 revisions. Fourthly, we have seen the Supreme Court decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to limitation is always regarded as procedural and in the absence of any provision to the contrary, the law in force on the date of the institution of the appeal, irrespective of the date of accrual of the cause of action for the original order, will govern the period of limitation." 29. Thus, the Supreme Court held:- "... limitation being a matter of procedure, only that law that is applicable at the time of filing the appeal, would apply. Therefore, Section 19(2) of FEMA and not Section 52(2) of FERA will apply." Similarly, Section 74A(2)(b) of the DVAT Act and not Section 46 of the Delhi Sales Tax Act, 1975 would apply. In fact, the impugned show cause notice dated 02.02.2010 could not have been issued under Section 46 of the Delhi Sales Tax Act, 1975. However, even if it is assumed that the impugned show cause notice was issued in exercise of the powers of revision under Section 74A of the DVAT Act, the period of limitation would be that which was in vogue when the said notice was issued. The period of limitation that would apply would, therefore, be the one prescribed under Section 74A(2)(b) of the DVAT Act. And, that being the case, as we have mentioned above, the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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