Executive Engineer, CPWD Division-1 v. Assessing Authority, Shimla
2022-04-02
SABINA, SATYEN VAIDYA
body2022
DigiLaw.ai
ORDER : Satyen Vaidya, J. The petitioner, in execution of its work–contracts, supplied steel to the contractors. The Assessing Authority, Shimla vide order dated 12.02.2001 burdened the petitioner with sales tax liability to the tune of Rs.10,82,953/- for the years 1995-96, 1996-97 and 1997-98 by treating supply of steel to the contractors as sale. Petitioner assailed the aforesaid order of Assessing Authority before the Additional Excise & Taxation Commissioner-cum- Appellate Authority (South Zone), Himachal Pradesh, Shimla under Section 30 of the Himachal Pradesh General Sales Tax Act, 1968 (for short ‘Appellate Authority’). The appeal of petitioner was allowed on 10.10.2002. It was held that neither the sale nor transfer of goods could be said to have taken place between petitioner and the contractor at any stage of the contract. The order of Assessing Authority was set-aside so also the demand created thereby. 2. In 2009, the Excise & Taxation Commissioner-cum- Revisional Authority, Himachal Pradesh, Shimla (for short ‘Revisional Authority’), suo-motu entertained the revision petition under Section 31 (1) of the Himachal Pradesh General Sales Tax Act, 1968 (for short ‘HPGST Act’) and vide order dated 26.05.2011 set-aside the order dated 10.10.2002 passed by the Appellate Authority. The demand created by the Assessing Authority vide assessment order dated 10.02.2001 was accordingly upheld. 3. Petitioner assailed the order dated 26.05.2011 passed by the Revisional Authority before the Himachal Pradesh Tax Tribunal, Dharamshala, Camp at Shimla (for short ‘Tribunal’) under Section 46 (3) of the Himachal Pradesh Value Added Tax Act, (for short ‘VAT Act’), 2005. One of the contention raised before the Tribunal, on behalf of petitioner, was that Section 46 (1) of the VAT Act, 2005, barred the exercise of the revisional powers after five years from the date on which the order sought to be revised was communicated. Since the Revisional Authority had exercised revisional power suo motu after seven years, the order passed by the Revisional Authority suffered from illegality and deserved to be set-aside. 4.
Since the Revisional Authority had exercised revisional power suo motu after seven years, the order passed by the Revisional Authority suffered from illegality and deserved to be set-aside. 4. Learned Tribunal rejected the aforesaid contention of the petitioner on the ground that the Revisional Authority had exercised the revisional power under Section 31 (1) of the HPGST Act, 1968 which was saved under Section 64 (3) of the VAT Act, 2005 and since no limitation was provided under the HPGST Act for exercise of revisional jurisdiction, the limitation provided under sub-Section (1) of Section 46 of the VAT Act, 2005 would not be applicable. 5. Aggrieved against the order dated 28.7.2016 passed by the Tribunal in Revision No. 03/2011, petitioner has approached this Court by way of instant petition on the following questions of law: 1. Whether assessment which has been accepted long ago, say about seven years ago can be reopened by exercising the powers under Section 321(1) of the HP General Sales Tax Act 1968 with Section 46 (1) of the HP Value Added Tax Act, 2005.? 2. Whether the Learned Tribunal below has taken into consideration this fact that suo-mote revision proceedings initiated by the Learned Exercise & Taxation Commissioner-Com Revisional Authority were not maintainable on the ground that the Department had not initiated any proceedings against the appellant Under Section 31(1) of the HP GST Act 1968 with section 46 (1) of the Himachal Pradesh value Added Tax Act, 2005 within a reasonable period? 3. Whether the Learned appellate Authority as well as the Learned Tax Tribunal below have ignored that fact that the petitioner is not a dealer in this case and hence not liable to pay sales Tax for issue of torque steel to his contractor as clause 10 of the form CPWD 7/8 prescribed that the material issued to the contractor had to remain absolute property of Govt. of India and the goods used could not be used for any other purpose and the contractor was only custodian of the material as per contract between the department and contractor, which has materially prejudiced the case of the present petitioner?.” 6. The appeal was admitted for hearing on 07.05.2018.
of India and the goods used could not be used for any other purpose and the contractor was only custodian of the material as per contract between the department and contractor, which has materially prejudiced the case of the present petitioner?.” 6. The appeal was admitted for hearing on 07.05.2018. Since the only argument raised on behalf of the petitioner before this Court is in respect of the findings of the learned Tribunal with respect to non-application of Section 46 (1) of the VAT Act, 2005, we propose to decide the revision on following question of law: “Whether the saving clause provided under Section 64 (3) of the VAT Act, 2005 would apply to those proceedings also, which were initiated after coming into force of the Himachal Pradesh Value Added Tax Act, 2005?” 7. We have heard learned counsel for the parties and have also gone through the records of the case carefully. 8. There is no dispute as to fact situation that the Appellate Authority had passed the order under Section 30 of the HPGST Act, 1968 on 10.10.2002 and the Revisional Authority had initiated suo motu revisional proceedings in the year 2009 i.e. after lapse of a period of seven years. 9. The VAT Act, 2005 came into force on 31st day of March, 2005. The HPGST Act, 1968 was repealed from the date of coming into force of the VAT Act, 2005. Such repeal, however, was subject to certain savings as provided in Section 64 of the VAT Act, 2005.
9. The VAT Act, 2005 came into force on 31st day of March, 2005. The HPGST Act, 1968 was repealed from the date of coming into force of the VAT Act, 2005. Such repeal, however, was subject to certain savings as provided in Section 64 of the VAT Act, 2005. Sub section (3) of Section 64 thereof reads as under: “(3) Any assessment, appeal, revision or other proceeding arising under the aforesaid Act and the rules made thereunder and or pending before an officer or Authority duly empowered to make assessment or hear and decide such appeal, revision or other proceeding immediately preceding the commencement of this Act shall, on the date of such commencement stand transferred to the officer or Authority competent to make assessment or to hear and decide appeal or revision or other proceedings under this Act and thereupon such assessment shall be made or such appeal or revision or other proceeding shall be heard and decided within the period, if any, specified therefore, by such officer or Authority in accordance with the provisions of the aforesaid Act or the rules made thereunder as if they were the officers or authorities duly empowered for the purpose under the aforesaid Act.” 10. On the date of coming into force of the VAT Act, 2005, admittedly no proceedings under the HPGST Act, 1968 were pending against the petitioner. Sub section (3) of Section 64 of the VAT Act, 2005 saved only those proceedings relating to assessment, appeal, revision or other proceeding arising under the HPGST Act, 1968 or the rules made thereunder which were pending before the competent authority under the said Act on the date of coming into force of the VAT Act, 2005. Learned Tribunal has fallen into an error in misreading and misconstruing the provisions of Section 64 (3) of the VAT Act, 2005. The impugned order passed by learned Tribunal, thus cannot sustain. 11. The bar of limitation, to initiate revisional jurisdiction under Section 46 (1) of the VAT Act, 2005 within five years of the notice of order sought to be revised, clearly applied to the facts of the instant case. The Revisional Authority could not revise the order dated 10.10.2002 passed by the Appellate Authority by exercising revisional jurisdiction initiated after lapse of five years. 12.
The Revisional Authority could not revise the order dated 10.10.2002 passed by the Appellate Authority by exercising revisional jurisdiction initiated after lapse of five years. 12. We wish to add that even assumingly no limitation was prescribed for exercise of revisional jurisdiction in the Act, the jurisdiction to upset an order passed by lawful authority cannot be said to exist in perpetuity and such jurisdiction has to be exercised within reasonable period. Unjustified and unreasonable delay in exercise of such jurisdiction may lead to situation causing grave prejudice to other side. With the passage of time valuable rights are often acquired by the authority having valuable order and belated interference therewith may cause injustice. 13. Reliance can be placed on the judgment passed by the Hon’ble Supreme Court in Santosh Kumar Shivgonda Patil and others vs. Balasaheb Tukaram Shevale and others (2009) 9 SCC 352 , wherein in para-11, it has held as under: “11. It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein.” 14. In the facts of the instant case, the exercise of revisional jurisdiction after seven years by the Revisional Authority cannot be said to be reasonable period by any stretch of imagination. 15. In the light of above discussion, question of law, as framed above, is answered accordingly. Revision Petition is allowed. Order dated 28.07.2016 passed by the Tribunal in Revision No. 03/2011 affirming the order dated 26.05.2011 passed by the Revisional Authority is set-aside. 16. Revision Petition stands disposed of in the aforesaid terms, so also the pending application(s), if any, with no order as to costs.