TMI Blog2009 (7) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, appeals are allowed. The assessment orders and consequential demands are also quashed. - 78,79 of 2008 - - - Dated:- 21-7-2009 - KUMAR M.M. AND JASWANT SINGH , JJ. The judgment of the court was delivered by M.M. KUMAR J. The Bharat Petroleum Corporation Ltd., has filed instant two appeals (VATAP Nos. 78 and 79 of 2008) in respect of assessment years 2001-02 and 2000-01 under section 68(2) of the Punjab Value Added Tax Act, 2005 (for brevity, the VAT Act ). In both the appeals, challenge is to the common order dated March 14, 2008 (annexure A4) passed by the learned VAT Tribunal (for brevity, the Tribunal ). Therefore, the appeals are being disposed of by this common judgment. The brief facts of the case are that the appellant-corporation is engaged in the business of petroleum products throughout the country. In the State of Punjab, its principal place of business is Patiala. It is registered with the Assessing Authority under the Punjab General Sales Tax Act, 1948 (for brevity, the PGST Act ) and also under the VAT Act, which has been enforced with effect from April 1, 2005. Facts re: VATAP No. 78 of 2008 For the year 2001-02, the corporation filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 27, 2006. Eventually, common order has been passed by the Tribunal, which is subject-matter of challenge in both the appeals. The operative part of the order passed by the Tribunal reads thus: Section 11CC(1) of Punjab Act No. 10 of 2005, which was in continuation of the Ordinance already issued on March 3, 2005 does not state anywhere that it was in respect of owners of the milk plants. This was in fact for all the dealers and period for assessments for the financial year 2000-01, 2001-02 in respect of all the dealers had been extended to five years from the last prescribed for furnishing the last return, in respect of these years. When Ordinance had been issued on March 3, 2005 and that had admittedly the force of the Act, then even if PGST Act had been repealed on April 1, 2005, the Legislature could legislate and pass an Act in continuation and to give effect to the provisions of the Ordinance and would have legal effect having come into force before repeal of the PGST Act. The State counsel in this respect had relied on the judgments reported in Emkay Industries v. State of Punjab [2005] 139 STC 57 (P H), Combined Industries Limited v. State of Karnataka [1999] 112 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation could not be extended by any stretch of imagination after it has expired. He has contended that the period of three years had expired on April 30, 2004 and April 30, 2005 in respect of assessment years 2000-01 and 2001-02 and, therefore, by promulgation of the VAT Act on May 6, 2005, a period of limitation of five years could not be added and extended to the case of the petitioner as the period of three years had already expired. He has submitted that no additional demand on the aforesaid basis could have been raised. In support of his contention learned counsel has placed reliance on judgment of the honourable Supreme Court rendered in the case of S. S. Gadgil v. Lal and Co. [1964] 53 ITR 231; AIR 1965 SC 171 and a Division Bench judgment of this court rendered in the case of Shreyans Industries Limited v. State of Punjab [2008] 18 VST 493 and argued that power to extend the period of limitation for completing assessment has to be exercised before the assessment becomes time-barred and not after the period of limitation has expired. For the same principle, reliance has been placed on another Division Bench of the Karnataka High Court rendered in the case of Combined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment. He has maintained that period of three years in respect of assessment year 2000-01 expired on April 30, 2004 and in respect of 2001-02 came to an end on April 30, 2005 and therefore, even an amendment has been made after the aforesaid period the same would not have the effect of extending the period of limitation automatically. Ms. Sudeepti Sharma, Deputy Advocate-General, for the Revenue, however, has submitted that amendment cannot be considered invalid merely on the ground that it sought to amend provision, which was not in existence. In that regard, she has placed reliance on the judgment of the honourable Supreme Court rendered in the case of State of Rajasthan v. Mangilal Pindwal AIR 1996 SC 2181. After examination of pleadings of the parties, statutory provisions and the rival contentions of their counsel, we are of the view that the following questions of law would arise for determination of this court: (A) Whether after repeal of the PGST Act, 1948 with effect from April 1, 2005 by the repealing section 92(1) of the Punjab VAT Act, any amendment was valid for extending the period of limitation from three years to five years by promulgation of section 11C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the financial year 2001-02 the return was required to be filed on or before April 30, 2002. It then follows that the assessment as per provisions of section 11(1), (2) and (3) of the Act is required to be finalised within three years. Thus, in respect of assessment year 2000-01 it could have been finalised on or before April 30, 2004 and in respect of 2001-02 it could have been done on or before April 30, 2005. The assessment order in respect of 2000-01 has been finalised on February 27, 2006 and in respect of the year 2001-02 it was finalised on July 10, 2006, which are obviously time-barred. The Revenue has, however, placed heavy reliance on section 11CC added by the Punjab Act 10 of 2005, which has extended the period of limitation to five years. Section 11CC as added reads thus: Section 11CC added by the Punjab Act 10 of 2005: 11CC. (1) Notwithstanding anything contained in this Act, the Assessing Authority, shall pass an order of assessment in respect of the dealers for the financial years 2000-01 and 2001-02 within a period of five years from the last date, prescribed for furnishing the last return in respect of these years: Provided that no order shall be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x-free goods for sale. The reasons for amendments and addition of these provisions like section 11CC and section 4BB are not far to seek. On July 19, 2000, the State of Punjab had promulgated an Ordinance known as the Punjab Dairy Development Board Ordinance, 2000 (for brevity, 2000 Ordinance ). Under the 2000 Ordinance, cess was levied on milk plants by abolishing purchase tax leviable under section 4B of the then in force PGST Act. The 2000 Ordinance was replaced by the Punjab Dairy Development Board Act, 2000 (for brevity, the Act of 2000 ). Accordingly, milk cess was levied at the rate of ten paise per litre on registered milk plant owners as per their licensed capacity. The aforesaid Act of 2000 was declared to be discriminatory and arbitrary by a Division Bench of this court in the case of Cepham Milk Specialities Ltd. v. State of Punjab [2002] 127 STC 116. The aforesaid view was also upheld by the honourable Supreme Court when the appeal of the State was dismissed (supra). In order to retain the purchase tax, section 4BB was added in the PGST Act and the period of assessment was extended by two years by addition of section 11CC as already noticed. The Statement of Obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the last date, prescribed for furnishing the last return in respect of these years: Provided that no order shall be made under this section against any dealer without giving him an opportunity of being heard. (2) Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, but subject to the provisions of sub-section (1), any assessment, reassessment, levy or collection of any tax in respect of the owners of milk plants, made or purported to have been made in relation to such assessment, reassessment, levy or collection under the provisions of this Act for the period commencing from the 19th day of July, 2000 and ending on the 11th day of September, 2002, shall be as valid and effective as if such assessment, reassessment, levy or collection had been made, under this Act as amended by the Punjab General Sales Tax (Amendment and Validation) Act, 2005. (3) For the removal of doubts, it is hereby declared that nothing in sub-section (2) shall be construed as preventing any person, (a) from questioning in accordance with the provisions of this Act as amended by the Punjab General Sales Tax (Amendment and Validation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be issued. It is true that by the amendment made by section 18 of the Finance Act, 1956, a notice could be issued within two years from the end of the year of assessment. But the application of the amended Act is subject to the principle that unless otherwise provided if the right to act under the earlier statute has come to an end, it could not be revived by the subsequent amendment which extended the period of limitation. The right to issue a notice under the earlier Act came to an end before the new Act came into force. There was undoubtedly no determinable point of time between the expiry of the earlier Act and the commencement of the new Act; but that would not, in our judgment, affect the application of this rule. . . . 13.. As we have already pointed out, the right to commence a proceeding for assessment against the assessee as an agent of a nonresident party under the Income-tax Act before it was amended, ended on March 31, 1956. It is true that under the amending Act by section 18 of the Finance Act, 1956, authority was conferred upon the Income-tax Officer to assess a person as an agent of a foreign party under section 43 within two years from the end of the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within three years from that date, i.e., by April 30, 2005. The aforesaid argument would fall flat on its face after a bare perusal of section 11CC of the 2005 Ordinance to which reference has already been made in the preceding paras. In section 11CC of the 2005 Ordinance it was specifically provided by a non obstante clause that notwithstanding anything contained in the Act the Assessing Authority was entitled to pass an order of assessment in respect of owners of the milk plants for the financial years 2000-01 and 2001-02 within a period of five years from the last date prescribed for furnishing the last return in respect of these years . It is, thus, obvious that section 11CC of the 2005 Ordinance was made specifically to deal with the assessment in respect of owners of milk plants. It has already been observed in the preceding paras that in view of the judgment of the honourable Supreme Court in Cepham Milk Specialities Ltd. [2004] 137 STC 163; [2004] 8 SCC 621, a situation had emerged for re-imposition of purchase tax on milk plants because the substituted cess imposed on them was declared invalid. Therefore, section 11CC would have no application as it is confined to passin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
