TMI Blog2005 (2) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... any had returned a gross turnover of Rs. 20,65,04,077. As per the return, tax liability of the petitioner-company was Rs. 40,89,786. However, by taking into account the fact that it had already paid tax amounting to Rs. 1,26,01,520 which was deducted at source by the contractees, it filed application for refund of Rs. 81,11,734. Return filed by the petitioner-company accepted by the Assessing Authority vide order annexure P1 and refund granted in terms of the prayer made. After more than four years of the finalisation of the assessment, respondent No. 2 issued notice dated June 7, 2004 (annexure P2) to the petitioner-company to show cause against the proposed refund of the order on the following grounds: (a) you have filed wrong returns and the assessment has been framed wrongly by taking only the cost price of the material used in the works contract for the purpose of assessment. The returns and the assessment should have been framed according to the law laid down by the honourable Supreme Court in the case of Gannon Dunkerley Co. v. State of Rajasthan (C.A. Nos. 4861-4864 of 1992) reported in [1993] 88 STC 204. As per this judgment the value of the goods involved in the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 632 was recoverable from it. 4.. The petitioner-company has challenged the order, annexure P5, mainly on the grounds which were taken by it in the reply to the show cause notice. 5.. In the written statement filed on behalf of the respondents, an objection has been taken to the maintainability of the writ petition on the ground that the petitioner-company has failed to avail the alternative remedy of appeal available under section 39 of the 1973 Act. The repeal of the 1973 Act by enactment of the VAT Act with effect from April 1, 2003 has not been disputed by the respondents. However, the respondents have relied upon a division Bench judgment of this Court in Khazan Chand Nathi Ram v. State of Haryana [2004] 136 STC 261 and the provisions of section 4 of the Punjab General Clauses Act, 1898 (for short, the General clauses Act ). On the basis of the aforesaid pronouncement in Khazan Chand Nathi Ram's case [2004] 136 STC 261 (P H) as well as provisions of General Clauses Act, it has been claimed by the respondents that on the repeal of the 1973 Act any right, privilege, liability or obligation under the old law is continued to be governed under the old law and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the jurisdiction to initiate the proceedings under the 1973 Act. Therefore, we do not find any justification to non-suit it on the ground of availability of alternative remedy. 9.. On merits, Shri. K.L. Goyal submitted that order dated May 12, 2000 had attained finality, inasmuch as, the same was not subjected to revision under section 40 of the 1973 Act till that Act was repealed by the VAT Act and argued that after coming into force of the new Act, respondent No. 2 could not exercise revisional power under section 40 of the 1973 Act. He distinguished the judgment in Khazan Chand Nathi Ram's case [2004] 136 STC 261 (P H) by pointing out that the question considered and decided in that case relates to the right of the aggrieved party to avail the remedy of appeal under the 1973 Act. He drew distinction between a right of appeal available to the suitor and power of revision which could be exercised by competent authority and argued that after repeal of the 1973 Act, respondent No. 2 could not have initiated proceedings under section 40 of the 1973 Act. In support of this contention, Shri Goyal relied on the judgment of the Supreme Court in Shiv Shakti Co-op. Housing Society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. In support of this argument, Shri Jaswant Singh relied on the judgment of Siemens India Ltd. v. State of Maharashtra [1986] 62 STC 40 (Bom). In the end, he argued that the proceedings initiated by respondent No. 2 cannot be treated as time-barred because limitation for exercising power under section 40 of the 1973 Act is five years. 11.. We have given our thoughtful and anxious consideration to the rival contentions of the learned counsel for the parties. With the able assistance of the learned counsel, we have also gone through the various provisions of law, judgments cited at the bar and the record of the present case. 12.. Before dilating on various contentions raised by the learned counsel for the parties, we consider it proper to notice the relevant extracts of the provisions of various enactments necessary for adjudication of the present controversy. The same read as under: Haryana General Sales Tax Act, 1973: Section 39: Appeal. (1) An appeal from every original order, including an order under section 40, passed under this Act or the rules made thereunder shall lie, (a) if the order is made by an assessing authority, officerincharge of a check-post or ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant and in the case of an appeal against any other order made under this Act, the time spent in obtaining the certified copy of the order shall be excluded in computing the period of sixty days. (6) Subject to regulations made by the Tribunal under sub-section (10) of section 4 and subject to such rules of procedure as may be prescribed in relation to an appellate authority other than the Tribunal, an appellate authority may pass such order on appeal as it deems to be just and proper, including an order enhancing the amount of tax or penalty or interest or all under this Act. (7) An Assessing Authority may challenge in appeal before the Tribunal, the order of the officer on whom the State Government has conferred the powers of the Commissioner under sub-section (2) of section 40, within one year from the date of the order appealed against. Section 40: Revision. (1) The Commissioner may on his own motion call for the record of any case pending before, or disposed of by any officer appointed under sub-section (1) of section 3 of the Act to assist him or any assessing authority or appellate authority, other than the Tribunal, for the purposes of satisfying himself as to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned a reasonable opportunity of being heard, pass such order in relation thereto as he may think fit: Provided that no order passed by a taxing authority shall be revised on an issue which on appeal or in any other proceeding from such order is pending before, or has been settled by, an appellate authority or the High Court or the Supreme Court, as the case may be: Provided further that no order shall be revised after the expiry of a period of three years from the date of the supply of the copy of such order to the assessee except where the order is revised as a result of retrospective change in law or on the basis of a decision of the Tribunal in a similar case or on the basis of law declared by the High Court or the Supreme Court. (2) The State Government may, by notification in the Official Gazette, confer on any officer not below the rank of Deputy Excise and Taxation Commissioner, the powers of the Commissioner under sub-section (1) to be exercised subject to such exceptions, conditions and restrictions as may be specified in the notification and where an officer on whom such powers have been conferred passes an order under this section, such order shall be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in two different ways by the learned counsel for the parties. Mr. Hardyal Hardy, learned counsel for the petitioners, urges that these words also include appeals and revisions, whereas Mr. R.S. Narula, learned counsel for the respondents, contends that they do not. These words have been interpreted by two learned Judges of this Court also in two different ways. In Shri Krishna Aggarwal v. Satya Dev (1959) 61 PLR 574, Bishan Narain, J., has held that these words refer only to the original proceedings in the trial Court and do not include appeals or revisions. In Shri Bimal Pershad Jain v. Shri Niadarmal (1960) 62 PLR 664, Falshaw, J., has held that the word 'suits' includes appeals and revisions because they are in the nature of rehearing of the suits. After giving our careful consideration to the matter we are definitely of the opinion that the words 'suits and other proceedings' used in the operative part of sub-section (2) of this section mean only the suits and other proceedings at the stage of their trial in the court of the first instance. So far as the petitions for revision are concerned, there can be no doubt that they are not included in the words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code of Civil Procedure but the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. The following observation from Hari Shankar's case AIR 1963 SC 698 may be noticed: The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a Here italicised. revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. Under section 115 of the Code of Civil Procedure, the High Court's powers are limited to see whether in a case decided, there has been assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the court which made the order had no jurisdiction, or in which the court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence. 15.. A Full Bench of this Court in the case of Chanan Dass v. Union of India AIR 1967 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision. 17.. The distinction between a right of appeal and the existence of a power of revision has also been examined in a recent judgment by the apex Court in Shiv Shakti Co-op. Housing Society's case (2003) 6 SCC 659. The relevant observations of the Supreme Court in the aforementioned case may be noticed as follows: 13. First aspect that has to be considered is the respective scope of appeal and revision. It is fairly a well-settled position in law that the right of appeal is a substantive right. But there is no such substantive right in making an application under section 115. Though great emphasis was laid on certain observations in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat (1969) 2 SCC 74; AIR 1970 SC 1 to contend that appeal and revision stand on the same pedestal, it is difficult to accept the proposition. The observations in the said case are being read out of context. What was held in that case related to the exercise of power of a higher court, and in that context the nature of consideration in appeal and revision was referred to. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in State of Kerala v. K.M. Cheria Abdulla and Co. [1965] 16 STC 875 (SC); AIR 1965 SC 1585, the distinction between right of appeal and revision is based on different implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power. It was noted by the four Judge Bench in Hari Shankar v. Rao Girdhari Lal Chowdhury AIR 1963 SC 698 that the distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reproduced above, section 35 of Delhi and Ajmer Rent (Control) Act, 1952. The said provision is couched in similar language as section 40 of the 1973 Act and can almost be deemed to be in pari materia with the provision of section 40 of the 1973 Act. The observations made in the aforesaid cases are fully attracted to the controversy in question. 19.. At this stage, we may also notice the law laid down by a division Bench of this Court in Khazan Chand Nathi Ram's case [2004] 136 STC 261. Learned counsel for the respondents placed great reliance upon the observations made in the aforesaid case to contend that the law applicable for the purpose of appeal or revision would be the law on the date when lis commences and in the case of a return filed or due to be filed, the lis shall be deemed to have commenced when such a return is filed or a notice for filing of the aforesaid return had been issued. Learned counsel for the respondents relied upon the following observations made in Khazan Chand Nathi Ram's case [2004] 136 STC 261 (P H): 34. In view of various judgments referred to above and on the reading of section 61(2) of the Haryana Value Added Tax Act, 2003 it is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit or proceeding and not by the law that prevails on the date of its decision or at the date of the filing of the appeal. 36.. In civil proceedings, lis commences on the presentation of the plaint or in cases claiming compensation under the Motor Vehicles Act on filing claim application. The question is when lis can be said to commence under the taxation laws. Section 25 of the Haryana General Sales Tax Act enjoins a duty upon an assessee to file quarterly return and deposit tax thereon. If such returns are accepted, there is no lis. Consequently, there would be no occasion for the parties to file an appeal. However, if such returns are not accepted, the cause of action which arise on the date when returns are required to be filed. The cause of action can be said to be arisen also when an assessee is called upon to furnish return on his failure to do so in terms of the provisions of the old Act. In fact, that is the relevant date as in Vitthalbhai Naranbhai Patel's case [1961] 12 STC 219 (SC); AIR 1967 SC 344. 37.. In view of the above discussion, we hold that right of appeal is a vested right as if exists on the date of commencement of lis. The lis can be said to com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file an appeal if prescribed under the law then in force. It would also include a right to apply for revision or a liability to have the order revised in accordance with the substantive law then in force. But if under the law in force at the date of initiation of assessment proceedings a time-limit is prescribed within which the right of revision has to be exercised, is such time-limit a part of the substantive law or is it a procedural law? 22.. In our opinion, the above judgment is clearly distinguishable. The only question considered by the Bombay High Court was with regard to the period of limitation which would be applicable for filing a revision in view of the subsequent amendment in law. It was held that the period of limitation is to be considered as a procedural law rather than a substantive law. Some of the observations made in that judgment do support the cause of the respondents, but in our opinion, the same are merely obiter and cannot be taken as an expression of opinion on a specific question of law. That apart, in view of the authoritative pronouncements of the Supreme Court in Hari Shankar's case AIR 1963 SC 698 and also in view of the law down by this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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