Avon Scales Company Vs. the State of Haryana and ors. - Court Judgment

S.S. Sandhawalia, C.J.

1.A pretended challenge to the constitutionality of Section 40 of the Haryana General Sales Tax Act, 1973, both with regard to its prospective and retrospective operations was sought to be raised in this writ petition. The primary grievance of the petitioners, however, centred around the order of the Deputy Excise and Taxation Commissioner, Ambala, whereby he had set aside the order of the Assessing Authority, Sonepat, dated the 22nd January, 1973 and remanded the case for fresh assessment.

2. In view of what follows it is unnecessary to advert to the facts in any great detail. It suffices to mention that vide annexure P-l, the Assessing Authority, Sonepat, assessed the total tax and penalty due from the petitioners, M/s. Avon Scale Company, Sonepat, at a paltry sum of Rs. 85 and directed the issue of a demand notice against them accordingly. The Deputy Excise and Taxation Commissioner, Ambala, however, acting suo motu under the revisional jurisdiction conferred by Section 40 of the Haryana General Sales Tax Act, called for the record of the proceedings and the assessment order for the purpose of satisfying himself as to the legality or the propriety of the assessment order. The petitioners were accordingly summoned to appear before the said authority-vide annexure P-4. One of the partners of the petitioner-firm appeared before the authority aforesaid on 6th January, 1975 and apart from urging the merits of the case prayed for the adjournment of the proceedings because the assessment related to matters, some of which were nearly seven years old. The Deputy Excise and Taxation Commissioner, Ambala, however, on examination of the record, found that the question whether the purchasers of goods from the petitioners had done so on the strength of the registration certificate and were further engaged in the resale of these goods, needed a further probe and, consequently, remanded the matter to the Assessing Authority for a fresh assessment. The petitioners were directed to appear before the Assessing Authority with the necessary documents and evidence on 28th January, 1975, at 10 A. M.

3. Though the order aforesaid is admittedly appealable, it appears that no appeal was preferred by the petitioners. However, nearly four months thereafter the present petition was moved on 6th May, 1975, wherein a fragmentary challenge to the validity of Section 40 of the Haryana General Sales Tax Act was also raised.

4. Before us Mr. R. N. Narula has been singularly unable to raise any contention worth the name against the constitutionality of Section 40 of the Haryana General Sales Tax Act, which is in the following terms:

40. Revision.-(1) The Commissioner may on his own motion call for the record of any case pending before, or disposed of by, any assessing authority or appellate authority, other than the Tribunal, for the purposes of satisfying himself as to the legality or propriety of any proceedings or of any order made therein and may pass such order in relation thereto as he may think fit.

(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.

5. It is evident that the revisional powers conferred by the aforesaid provision are identical with innumerable other statutes and their validity has hardly ever been the subject-matter of challenge. Indeed when pressed, learned counsel fairly conceded that the provisions being innocuous and conferring well-known and well-established revisional powers were beyond any serious challenge.

6. Repelled on the main ground, the counsel then contended that whilst the prospective operation of Section 40 may be unassailable yet the retro-spectivity given thereto by the statute is not valid. Reference in this connection was made to Section 1 of the Haryana General Sales Tax Act, wherein under the relevant item of Sub-section (3), the provisions of Section 40 have been given retrospectivity with effect from 1st March, 1968.

7. On the point of retrospectivity also learned counsel for the petitioners is on equally tenuous ground. As is evident, the Haryana General Sales Tax Act, 1973, was enacted by the Legislature of the State of Haryana in 1973 and came into force on 5th May, 1973. It is well-settled that subject to constitutional restrictions the power to legislate includes the power to legislate both prospectively as well as retrospectively. It has been held times out of number that except for the bar aforesaid the legislature has plenary jurisdiction to give retrospectivity to its provisions. Faced with this proposition, Mr. Narula candidly conceded that even on the point of retrospectivity he had no case to urge.

8. The primary challenge against the constitutional provisions being out of the way, it is evident that hardly anything else survives in the writ petition. The impugned order of the Deputy Excise and Taxation Commissioner, Ambala, annexure P-6, being admittedly appealable, the petitioners must necessarily be confined to their ordinary remedy by way of appeal. Merely because they had chosen not to resort to the same or had allowed the said remedy to become time-barred by preferring the present writ petition after more than four months of the order which was passed in the presence of one of the partners of the petitioners is no ground for affording them extraordinary remedy or the writ jurisdiction merely because of their own default.

9. This apart, it is evident that the end-result of the impugned order is that the whole issue has been remanded back to the Assessing Authority. Undoubtedly there is a hierarchy of appeals and revisions provided by the statute against the original order of assessment. There are even further remedies provided by the culminating reference from the Sales Tax Tribunal to this Court. In this context, the petitioners are disentitled to any relief at the hands of the writ court and are relegated to their ordinary statutory remedies which may as yet be available to them in law. The writ petition appears to us as misconceived and is hereby dismissed with costs.

10. Mr. R. N. Narula has fairly stated that the position in the connected Civil Writ Petitions Nos. 2382 to 2386 of 1975 is identical and all of them shall be governed by this judgment. All these writ petitions are accordingly dismissed with costs.