9911796707
TMI Blog2018 (8) TMI 1884X X X X Extracts X X X X X X X X Extracts X X X X ..... ort, 'the 2003 Act') with effect from 1.4.2003. This Court in Hindustan Construction Company Limited vs State of Haryana and others (2005) 141 STC 119, opined that no notice under Section 40 of the 1973 Act could be issued after the repeal thereof as in Section 61 of the 2003 Act, only the pending proceedings have been saved with no power to initiate fresh proceedings for suo-moto revision of assessment order passed under the 1973 Act. 3. When the case came up for hearing before the Division Bench of this Couart, the opinion expressed by the Division Bench of this Court in Hindustan Construction Company Limited's case (supra), was doubted and the matter was referred to be considered by a Larger Bench of this Court vide order dated 4.8.2006. This is how the writ petition has been listed before this Bench. 4. Learned counsel for the petitioner submitted that this Court while referring the matter to the Larger Bench had doubted the correctness of the earlier judgment of this Court in Hindustan Construction Company Limited's case (supra). The aforesaid judgment was challenged by the State before Hon'ble the Supreme Court and the same has been upheld vide judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t due at the commencement of this Act may be recovered as if the same had accrued under this Act. 61. Repeal and saving.- (1) The Haryana General Sales Tax Act, 1973 (20 of 1973), is hereby repealed : Provided that such repeal shall not- (a) affect the previous operation of the Act so repealed or anything duly done or suffered thereunder; or (b) affect any right, power, title, privilege, obligation or liability acquired, accrued or incurred under the said Act; or (c) affect any act done or any action taken (including any appointment, notification, notice, order, rule, form regulation, certificate) in the exercise of any power conferred by or under the said Act; and any such act done or any action taken in the exercise of the powers conferred by or under the said Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under the said Act as if this Act was in force on the date on which such act was done or action taken; and all arrears of tax and other amount due at the commencement of this Act may be recovered as if the same had accrued under this Act. (2) Notwithstanding anything contained in subsection (1),- (a) any application, appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from payment of tax and if it fails to do so, it shall be liable to pay to the State Government, in the prescribed manner the amount of tax in respect of which it has availed of exemption from payment after reducing therefrom the tax paid by it before such failure; (ii) an industrial unit availing the benefit of capital subsidy may, in the prescribed manner, change over to deferment of payment of tax for the remaining period and the remaining extent of benefit but where an industrial unit does not choose to do so, the benefit of capital subsidy to it shall cease to take effect on and from the appointed day; (iii) an industrial unit availing the benefit of deferment of payment of tax, whether by change over under the foregoing provisions or otherwise, may, in lieu of making payment of the deferred tax after five years, pay half of the amount of the deferred tax upfront along with the returns and on making payment in this manner, the tax due according to the returns shall be deemed to have been paid in full; and (iv) the tax deferred in every other case shall be converted into interest free loan in the manner prescribed. Explanation.- For the purpose of this clause, "tax" inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from payment of tax may, in the prescribed manner, change over to deferment of payment of tax for the remaining period and the remaining extent of benefit or for such period and such extent of benefit as may be prescribed but where an industrial unit does not choose to do so, exemption to it from payment of tax shall cease to take effect on and from the appointed day and further.- (I) it shall be liable to maintain production at a level so that its annual turnover does not fall short of the average annual turnover during the period of exemption; and (II) it shall not export out of State any goods produced by it, for a period of next five years or such shorter period for which it has availed of exemption from payment of tax and if it fails to do so, it shall be liable to pay to the State Government, in the prescribed manner the amount of tax in respect of which it has availed of exemption from payment after reducing therefrom the tax paid by it before such failure; (ii) an industrial unit availing the benefit of capital subsidy may, in the prescribed manner, change over to deferment of payment of tax for the remaining period and the remaining extent of benefit but where an ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing done under the said Act, and accordingly- (i) all acts, proceedings or things done or action taken by the State Government or by any officer of the State Government or by any authority, in connection with the levy, assessment, reassessment or collection of such tax shall, for all purposes be deemed to be, and to have always been, done or taken accordance with law; (ii) no suit or other proceedings shall be maintained or continued in any court or before any authority for the refund of any such tax so collected; and (iii) no court or authority shall enforce any decree or order directing the refund of any such tax so collected. (2) Notwithstanding anything contained in subsection (1)- (a) any application, appeal, revision or other proceedings made or preferred to any officer or authority under the said Act, and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceedings under this Act as if the said Act had been in force on the date on which such application, appeal, revision or other proceedings we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a period of next five years or such shorter period for which it has availed of exemption from payment of tax and if it fails to do so, it shall be liable to pay to the State Government, in the prescribed manner the amount of tax in respect of which it has availed of exemption from payment after reducing therefrom the tax paid by it before such failure; (ii) an industrial unit availing the benefit of capital subsidy may, in the prescribed manner, change over to deferment of payment of tax for the remaining period and the remaining extent of benefit but where an industrial unit does not choose to do so, the benefit of capital subsidy to it shall cease to take effect on and from the appointed day; (iii) an industrial unit availing the benefit of deferment of payment of tax, whether by change over under the foregoing provisions or otherwise, may, in lieu of making payment of the deferred tax after five years, pay half of the amount of the deferred tax upfront along with the returns and on making payment in this manner, the tax due according to the returns shall be deemed to have been paid in full; and (iv) the tax deferred in every other case shall be converted into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Hindustan Construction Company Limited's case (supra), opined that after repeal of the 1973 Act with enactment of the 2003 Act with effect from 1.4.2003, no fresh proceedings could be initiated under Section 40 of the 1973 Act as only pending proceedings had been saved. Division Bench of this Court doubting the correctness of the abovesaid judgment referred the matter to be considered by a Larger Bench. The State also being aggrieved against the judgment of this Court in Hindustan Construction Company Limited's case (supra), filed appeal before Hon'ble the Supreme Court. While the matter was still pending in this Court, Hon'ble the Supreme Court has dismissed the appeal filed by the State upholding the judgment of this Court, with the following observations: "8. We have considered the respective submissions. A simple repeal of an Act leaves no room for expression of a contrary opinion. However, if the repeal is followed by a fresh enactment on the same subject, the applicability of the General Clauses Act would undoubtedly require an examination of the language in the new enactment to see if it expresses a different intention from the earlier Act. The enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same by Act No. 3 of 2010 on 2-4-2010. Any interpretation saving the revisional power under Section 40 of the Act of 1973, without any proceedings pending on the relevant date, by resort to Section 4 of the Punjab General Clause Act, 1858 would render the amendment redundant, and an exercise in futility, something which the legislature never intended to do. Such an incongruous interpretation leading to absurdity has to be avoided." 9. In the case in hand, it is undisputed fact on record that notice for revision of the order of assessment was issued to the petitioner after the repeal of the 1973 Act and enactment of 2003 Act, on 15.5.2006, which is much after the repeal of the 1973 Act. Hence, in view of the enunciation of law, as referred to above in Hindustan Construction Company Limited's case (supra), the proceedings initiated against the petitioner for revision of the order of assessment as well as the order passed are without jurisdiction and deserve to be set aside. 10. There is no merit in the contention raised by learned counsel for the State that in the case of the petitioner provision of Section 61(2)(d) of the 2003 Act will be applicable, as the aforesaid provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
