TMI Blog2024 (2) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3 of HGST Act, 1973 to assist him or any Assessing Authority or Appellate Authority, for the purposes of satisfying himself as to the legality or to propriety of any proceedings or of any order made therein and may pass such order in relation thereto, as he may think fit. As far as rectification of an order is concerned, the same can be done by the concerned authority within a period of two years from the date of the order. As regards the initiation of revisional proceedings is concerned, the said power is circumscribed by the first proviso as well as third proviso to Section 40 (1) of HGST Act, 1973, in as much as that the order, which is sought to be revised, cannot be revised after the expiry of five years from the date of the order and in terms of third proviso to Section 40 (1) of HGST Act, 1973, the assessee or any other person shall have no right to invoke revisional power under this sub-section. As regards the scope and ambit of exercise of revisional jurisdiction under Section 40 of HGST Act, 1973 is concerned, same is no more res integra as the same was considered by a Division Bench of this Court in MAHABIR TECHNO LIMITED VERSUS THE STATE OF HARYANA AND ANOTHER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 28.08.2017 (Annexure A-13), passed by Haryana Tax Tribunal (hereinafter referred to as the Tribunal ), in relation to the Assessment Year 1991-92. 2. Briefly, the appellant was running a flour mill and was engaged in the business of trading of Atta, Maida, Suji, Bran etc. The appellant claims to be duly registered as a dealer under the provisions of Haryana General Sales Tax Act, 1973 (hereinafter referred to as HGST Act, 1973 ) as well as Central Sales Tax Act, 1956 (hereinafter referred to as CST Act, 1956 ). 3. It appears that the return filed by the appellant for the Assessment Year 1991-92 was taken up in scrutiny and assessment proceedings were initiated, wherein the Assessing Authority by framing assessment, calculated an excess of Rs. 12,36,560/- under the HGST Act, 1973 and calculated a tax of Rs. 17,46,547/- under the CST Act, 1956, which was adjusted towards exemption limit. As per the appellant, the Assessing Authority had taxed the turnover at the rate of 3% instead of 2%, as provided under the Act. 4. The appellant filed a rectification application (Annexure A-2) on 20.06.1995 before the Assessing Authority for rectification of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, fresh opportunity was given. More so proceedings u/s 40 (2) of HGST Act, 1973 initiated by Revisional Authority requires to be complete within a period of 5 years from the date of passing of orders. Proceedings in this case has not been finalized within a stipulated period of 5 years. This case is time barred, hence, I am inclined to vacate notice u/s 40 (2) of HGST Act, 1973 issued by the predecessor. 6. The appellant challenged the order dated 20.03.2001 (Annexure A-5), passed by the Revisional Authority by preferring appeals before the Tribunal below for assessments of the years 1990-91 and 1991-92. It is apposite to note here that since the appellant preferred appeals against the order of the Revisional Authority, accordingly, the appellant withdrew CWP-17526-2000 on 25.07.2001 (Annexure A-6). 7. The above referred both appeals filed by the appellant came to be allowed by the Tribunal below, vide its order dated 05.12.2001 (Annexure A-8), whereby the cases were remanded back to the Revisional Authority for passing appropriate order on merits. 8. Feeling aggrieved against the aforesaid order, the State filed a single review application for review of afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since revisional proceedings have been initiated by the Revisional Authority, therefore, the appellant could not have been made to suffer due to the fault of the Revisional Authority for the delay in passing the order therein. Learned counsel for appellant, while referring to the judgment in the case of Hotel Oberoi Mount View Versus Assessing Authority, UT submits that the Commissioner can exercise the power of revision suo motu, whenever he receives an information about illegality or impropriety committed by his subordinate authority and the information may come from any source. It is submitted that the Revisional Authority had rightly initiated the revisional proceedings and no fault can be found with the same. With the aforesaid submissions, learned counsel for appellant prayed that the appeal be allowed and the impugned order dated 28.08.2017 (Annexure A-13) be set aside. 13. Per contra, learned State counsel has opposed the prayer made on behalf of appellant by submitting that the Tribunal below has duly considered all the submissions made by the appellant and passed a well-reasoned and justified order, which does not call for any interference by this Court. It is subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is revised as a result of the decision of the Tribunal or any court of law in a similar case Provided further that the assessee or any other person shall have no right to invoke the revisional powers under this sub-section. (1A) The power under sub-section (1) shall not be exercised in respect of any issue or question which is the subject matter of appeal or review before, or which has been decided on appeal or in review by the Tribunal (2) The State Government may, by notification, confer on any officer the powers of the Commissioner under sub-section (1) to be exercised subject to such conditions and in respect of such areas as may be specified in the notification. (3) No order shall be passed under this section which adversely affects any person unless such person has been given a reasonable opportunity of being heard. A perusal of Section 33 of HGST Act, 1973 would reveal that the same provides for rectification of clerical mistakes and errors. The Assessing Authority or any such authority, as may be prescribed, may rectify any clerical or arithmetical mistake apparent from the record, at any time, within two years from the date of any order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. As regards the scope and ambit of exercise of revisional jurisdiction under Section 40 of HGST Act, 1973 is concerned, same is no more res integra as the same was considered by a Division Bench of this Court in Mahabir Techno Limited Versus State of Haryana, 2016 (4) PLR 149 wherein the following observations were made :- 9. In contrast to the aforesaid two provisions, Section 40 of the Act, which provides for revision, used the word, 'so revised'. Different words used by the Legislature in this section as compared to other two sections have to be given its true meaning. Plain reading of the language suggest that no order shall be revised after the expiry of a period of five years from the date of order. The only meaning which can be assigned to the language used is that the proceedings have to conclude with the passing of the order. It is not merely initiation of proceedings for revision. Second proviso to Section 40(1) of the Act enlarges the limitation, if the revision is a result of any decision of the Tribunal or Court. 10. To somewhat similar is the language used in Andhra Pradesh General Sales Tax Act. The relevant provisions of Sections 20(1) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the petitioner had challenged the notices issued on 22.1.2007. Prior to that it is not the case of either of the parties that in the matter before the Court any interim stay has been granted. The proceedings initiated for revision of the orders of assessment having not concluded within the period of five years from the date of order sought to be revised, as envisaged under Section 40 of the Act, the Revisional Authority now does not have any jurisdiction to pass the order... 18. In view of aforesaid judgment rendered in the case of Mahabir Techno Limited (supra), it is manifest that in case the revisional proceedings are initiated by the Revisional Authority under Section 40 (1) of HGST Act, 1973, the same are required to be concluded within a period of five years from the date of the order sought to be revised and after the expiry of the said period of five years, the Revisional Authority does not have any jurisdiction to pass any order. Apparently, in the instant case, the Revisional Authority had initiated the revisional proceedings in respect of assessment order dated 17.07.1992 with regard to Assessment Year 1991-92, however, since revisional proceedings were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional Authority to pass the revisional order even after expiry of the limitation period. Thus impugned order dated 05.12.2001 of the Tribunal suffers from both patent errors of law and, therefore, the same has to be reviewed and the review application is very much maintainable. Revisional proceedings were rightly dropped as time barred by the Revisional Authority because the limitation period of five years for revising the impugned assessment orders had expired long ago. Consequently the impugned revisional orders did not suffer from any infirmity, error or illegality so as to require interference in appeal. The contention on behalf of the assessee-respondent that it should not suffer due to fault of Revisional Authority in not concluding the revisional proceedings expeditiously within limitation period, although apparently attractive, is completely devoid of merit. As already noticed above, the assessee had no right to invoke revisional powers under section 40 (1) of the HGST Act. Consequently the question of the assessee suffering loss due to non-conclusion of revisional proceedings within the limitation period by the Revisional Authority does not arise. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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