TMI Blog2015 (3) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... g to incidental charges. The fact that the Department held a similar view or that similar orders were passed before the judgment in Food Corporation of India's case [2009 (3) TMI 951 - PUNJAB AND HARYANA HIGH COURT], is irrelevant. The controversy with respect to incidental charges was finally settled by the High Court and, therefore, entitled the Commissioner to exercise power to revise an assessment even after expiry of the period of three years. The Tribunal's finding that as order could have been revised without waiting for the High Court, is based upon a misreading of the nature of power, conferred by the second part of the second proviso to section 34(1) of the Act. It would, therefore, be necessary to reiterate that power under section 34(1) of the Act to revise an assessment order has to be exercised within three years but where there is, a change in law, a decision of a Tribunal in a similar case or a declaration of law by the High Court or the honourable Supreme Court of India the power may be exercised after expiry of the period of three years. The fact that the Department may have held a similar view, that has been upheld by the honourable Supreme Court or the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, on account of sale of gunny bags. The respondent-corporation filed an appeal before the Tribunal, canvassing that, as the order was passed, after expiry of three years, provided by the first part of the second proviso to section 34 of the Act, the assessment is illegal. The learned Tribunal allowed the appeal, set aside the assessment order by holding that as Department always held the view that incidental charges from sale of gunny bags are part of turnover, it was not justified in invoking the extended period of limitation, for revising the assessment order. Counsel for the State of Haryana submits that after expiry of the period of three years, prescribed for reassessment, by the second proviso to sec tion 34(1) of the Act, the Commissioner is empowered by the second part of this proviso to invoke power conferred by section 34(1) of the Act if there is (i) a retrospective change in law; (ii) a decision of the Tribunal in a similar case; or (iii) a law is declared by the High Court or the Supreme Court. Thus, if any of the factors, referred to in the second part of second proviso to section 34(1) of the Act, exist, the Commissioner may exercise power to revise an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py 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. Section 34(1) of the Act confers plenary power, upon a Commissioner, to call for the record of any case pending before or disposed of by any taxing authority and satisfy himself as to the legality or propriety of such order or proceeding, insofar as it may be prejudicial to the interest of the State. The first part of second proviso, to section 34(1) of the Act, prohibits exercise of this power after expiry of three years, from the date of supply of a copy of such order, to the assessee. The second part of second proviso, to section 34(1) of the Act, however, provides that power under section 34(1) of the Act may be exercised after expiry of the period of three years, in case of retrospective legislation, if an order is passed by the Tribunal, or an order is passed by the High Court or the Supreme Court of India. Admittedly, reassessment was ordered after expiry of the period of three years by relying upon a judgment of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m part of the turnover of the appellant-Corporation or not. With due deference to the opinion recorded by the learned Tribunal, we cannot but differ and have no hesitation in holding that the opinion so recorded is legally flawed. Section 34(1) of the Act read along with the second proviso reveals that power to revise an assessment has to be exercised within three years from date of supply of a copy of the assessment order. The second part of the second proviso to section 34(1) of the Act, however, allows exercise of this power of revision beyond the period of three years, independent of the period of limitation provided by the first part of the second proviso and, therefore, cannot be read as an exception to the period of limitation of three years, prescribed by the first part of the second proviso. The power, so conferred can be exercised, after expiry of the period of three years on the occurrence of three separate events, namely, (i) a retrospective change in law; (ii) a decision of the Tribunal in a similar case; and (iii) a law declared by the High Court or the Supreme Court and is, therefore, neither qualified by any part of the limitation prescribed by the first prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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