Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 52 (HP)

Tarna Treads v. State Of Himachal Pradesh

2012-02-27

R.B.MISRA, SANJAY KAROL

body2012
JUDGMENT : R. B. Misra, J. Heard Mr. Rakesh Sharma, Learned Counsel for the petitioner and Mr. R. K. Sharma, senior advocate/Senior Additional Advocate-General, for the respondents. The present petition has been preferred with the following prayers : (i) Quash the impugned notice dated April 22, 2011 of respondent No. 2 issued u/s 46(1) of the H. P. Value Added Tax Act, 2005 (annexure P6). (ii) Issue writ of mandamus directing respondent No. 5 to comply with appellate order dated July 27, 2011 (annexure P5) passed by respondent No. 3 in appeals. 2. The petitioner is a registered dealer under the provisions of the H. P. Value Added Tax Act, 2005 (in short called ''the Act" hereinafter) and Central Sales Tax Act, 1956. The petitioner has set up its unit and is registered as small-scale industrial unit with District Industry Centre and is dealing in tyre retreading work. The assessment order for the year 2004-05 was passed by the assessing authority on June 30, 2009 vide annexure P2. An appeal against the said order was preferred before the Additional Excise and Taxation Commissioner-cum-Appellate Authority (South Zone), which was adjudicated vide order dated January 29, 2010 (annexure P3), thereby the matter was relegated back to the assessing authority. In compliance to the said order, a reassessment order dated March 31, 2010 was passed for said year along with other years. 3. Being aggrieved, the petitioner has also preferred an appeal u/s 45 of the Act read with section 30 of the H. P. General Sales Tax Act, 1968. The said appeal was disposed of on July 27, 2010 by the Additional Excise and Taxation Commissioner-cum-Appellate Authority (South Zone), relegating the matter to the assessing authority with the direction to pass a speaking order in accordance with the directions given in order dated January 29, 2010. It appears that the Excise and Taxation Commissioner-cum-Appellate Authority, in exercise of its power u/s 46(1) of the Act, issued a notice to the petitioner calling upon the petitioner to give his response. The said notice has been challenged by the petitioner before this Court in the present writ petition. It appears that the Excise and Taxation Commissioner-cum-Appellate Authority, in exercise of its power u/s 46(1) of the Act, issued a notice to the petitioner calling upon the petitioner to give his response. The said notice has been challenged by the petitioner before this Court in the present writ petition. this Court, however, on June 3, 2011 was pleased to give liberty to the petitioner to file reply to the impugned notice, with further liberty to the Commissioner to pass a speaking order with an observation that such order passed by the Excise and Taxation Commissioner shall not be given effect to without the permission of this Court. 4. The Excise and Taxation Commissioner, however, after considering the order dated July 27, 2010 (passed by the Additional Commissioner) and also considering the notice in question, has disposed of Revision No. 50/ 2010-11 vide order dated November 19, 2011 which has, however, not been challenged by way of revision before this Court. 5. Mr. Rakesh Sharma, Learned Counsel for the petitioner, has argued that the Commissioner (Excise and Taxation) cannot exercise its revisional power u/s 46 of the Act, for testing the validity and legality of the order dated July 27, 2010 passed by the Additional Commissioner (Excise and Taxation) in his capacity of an appellate authority. It has also been argued that the appellate authority cannot be treated to be authority, subordinate to the Commissioner (Excise and Taxation) for the purpose of section 46 of the Act. In all fairness, Learned Counsel for the petitioner submitted that no appeal has been preferred before the Tribunal against the order dated November 19, 2011 passed by the Commissioner (Excise and Taxation). Mr. Sharma has also submitted that in view of the section 46(3) of the Act, the limitation period for preferring the petition is 60 days and during the pendency of the present writ petition, such period has already been elapsed, as such, in view of these facts and circumstances, no useful purpose shall be served to approach again before the Tribunal for adjudication of the petition. 6. On the other hand, Mr. R. K. Sharma, senior advocate/Senior Additional Advocate-General for the respondents/State has contended that in view of the order having been passed on November 19, 2011 u/s 45(2) of the Act a revision to the High Court, could be preferred u/s 48 of the Act. Mr. 6. On the other hand, Mr. R. K. Sharma, senior advocate/Senior Additional Advocate-General for the respondents/State has contended that in view of the order having been passed on November 19, 2011 u/s 45(2) of the Act a revision to the High Court, could be preferred u/s 48 of the Act. Mr. Sharma has also submitted that the Additional Commissioner (Excise and Taxation) is subordinate to the Commissioner (Excise and Taxation) and section 46 does not indicate that the proceedings as mentioned in section 46 of the Act are pertaining to the assessment or administrative proceedings only and any authority subordinate to Commissioner, would only be exercising its powers in reference to the assessment matters. It has been submitted by Mr. R. K. Sharma that the authority subordinate to the Commissioner includes authorities exercising the powers of assessment as well as the appellate powers. 7. For reference the relevant sections of the H. P. Value Added Tax Act, 2005 are reproduced as below : 45. Appeal.--(1) An appeal from every original order passed under this Act or Rules made thereunder shall lie : (a) if the order is made by an assessing authority or by an officer-in-charge of the check-post or barrier or any other officer not below the rank of the Excise and Taxation Officer, to the Deputy Excise and Taxation Commissioner; (b) if the order is made by the Deputy Excise and Taxation Commissioner, to the Commissioner or the Additional Excise and Taxation Commissioner, posted at the State Headquarters; (c) if the order is made by the Commissioner or the Additional Excise and Taxation Commission(sic) posted at the State Headquarters any officer exercising the powers of the Commissioner, to the Tribunal. (2) An order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Additional Excise and Taxation Commissioner posted at the State Headquarters or by the Commissioner or any officer, on whom the powers of the Commissioner are conferred, shall be further appealable to the Tribunal. (2) An order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Additional Excise and Taxation Commissioner posted at the State Headquarters or by the Commissioner or any officer, on whom the powers of the Commissioner are conferred, shall be further appealable to the Tribunal. (3) Every order of the Tribunal, the Commissioner or any officer exercising the powers of the Commissioner or the Additional Excise and Taxation Commissioner posted at the State Headquarters or the order of the Deputy Excise and Taxation Commissioner or of the assessing authority or an officer in-charge of check-post or barrier or any other officer not below the rank of an Excise and Taxation Officer, if not challenged in appeal or revision, shall be final. (4) No appeal shall be entertained unless it is filed within sixty days from the date of communication of the order appealed against, or such longer period as the appellate authority may allow, for reasons to be recorded in writing. (5) No appeal under sub-section (1) shall be entertained by an appellate authority unless such appeal is accompanied by satisfactory proof of the payment of the tax (including interest payable) or of the penalty, if any, imposed or both as the case may be : Provided that if such authority is satisfied that the dealer is unable to pay the tax (including interest payable) assessed or the penalty, if any, imposed or both, he may, for reasons to be recorded in writing, entertain an appeal without the tax (including interest payable) or penalty or both having been paid in full or after part payment of such tax (including interest payable) or penalty or both. (6) Subject to such rules of procedure as may be prescribed, an appellate authority may pass such order on appeal as it deems just and proper. 46. (6) Subject to such rules of procedure as may be prescribed, an appellate authority may pass such order on appeal as it deems just and proper. 46. Revision.--(1) The Commissioner may, of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any authority subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein and, on finding the proceedings or the orders prejudicial to the interest of revenue, may pass such order in relation thereto as he may think fit : Provided that the powers under this sub-section shall be exercisable only within a period of five years from the date on which such order was communicated. (2) The State Government may, by notification, confer on any officer powers of the Commissioner under sub-section (1) to be exercised subject to the conditions and in respect of such areas as may be specified in the notification and such officer shall be deemed to be the Commissioner for the purposes of sub-section (1). (3) The Tribunal, on application made to it against an order of the Commissioner under this section within sixty days from the date of the communication of the order, for the purpose of satisfying itself as to the legality or propriety of such order, may call for and examine the record of any such case and may pass such orders thereon as it thinks just and proper. (4) 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. 8. We have heard the Learned Counsel for the parties. The word "Commissioner" provided u/s 46 has to be read in reference to the definition provided u/s 2(f) of the Act. Firstly, the Commissioner (Excise and Taxation), on his own motion, may call for the record of the any proceedings which are pending or which have been disposed of. Secondly the Commissioner (Excise and Taxation) has only to exercise its revisional powers on his own motion in respect of the matters pending before any authority subordinate to him. Firstly, the Commissioner (Excise and Taxation), on his own motion, may call for the record of the any proceedings which are pending or which have been disposed of. Secondly the Commissioner (Excise and Taxation) has only to exercise its revisional powers on his own motion in respect of the matters pending before any authority subordinate to him. In our considered view, any proceedings include assessment proceeding or miscellaneous proceedings or appellate proceedings and any authority subordinate to the Commissioner includes authorities up to Additional Commissioner level discharging the work of assessment or discharging the work of check-post, etc. Section 46 does not indicate that the Additional Commissioner while working as an appellate authority is excluded from authority subordinate to the Commissioner. In this regard, we find force in the submissions of Mr. R. K. Sharma, senior advocate/Senior Additional Advocate-General. 9. Therefore, in our considered view the petitioner, if aggrieved, may safely approach for redressal of his grievances before the Tribunal u/s 46(3) of the Act. Since the order dated November 19, 2011 has not been challenged, therefore, the petitioner, if so advised, may challenge the same before appropriate forum as after the order dated November 19, 2011 having been passed, no cause of action is survived in the present writ petition. Therefore, the writ petition is disposed of with an observation that since the petitioner has bona fidely been pursuing his grievances before this Court, as such, if the petitioner approaches before the Tribunal, then period for which the writ petition was pending before the High Court may be excluded from the limitation period as provided u/s 46(3) of the H. P. Value Added Tax Act, 2005. Since the matter was pending adjudication before this Court and there was a stay order dated June 3, 2011 was operating by this Court (DB), as such, while adjudicating the petition by the Tribunal u/s 46(3), the limitation period shall not be come in the way and the petition shall have to be dealt with on its own merits being not affected by any of the observations of this Court. Accordingly, the writ petition is disposed of, so also the pending application(s).