Moi Engineering Limited Vs. State of Punjab and anr. - Court Judgment

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sales tax - amendment - section 11(2) of punjab general sales tax act, 1948 - appellant being registered dealer filed returns and paid tax accordingly - assessing authority issued notice under section 11(2) of act and made assessment creating additional demand - some amendment came in section 11 of act - appellant refused to produce account books on ground that assessing authority had no jurisdiction - assessing authority rejected objection of petitioner - assessing authority created demand - appellant filed appeal - dismissed - appellant filed second appeal before tribunal - allowed - assessing authority filed first application - dismissed - assessing authority filed second application before tribunal - allowed - hence, present appeal has been filed by appellant - held, notice of assessment was prior to enforcement of amending law - order of tribunal was beyond limitation for rectification - it is well-settled that pending proceedings which are initiated within applicable limitation, do not stand extinguished unless it is expressly so provided under new law nor closed proceedings are revived - appeal allowed - 1. this appeal has been preferred by the assessee under section 68 of the punjab value added tax act, 2005 (in short, 'the 2005 act') against the order of the vat tribunal in appeal nos. 515-517 of 2004-05 dated september 6, 2007, for the assessment year 1994-95. the assessment and other proceedings have taken place under the punjab general sales tax act, 1948 (in short, 'the 1948 act') which was applicable prior to april 1, 2005.2. in para 3 of the appeal, the following substantial questions of law have been proposed:(i) whether, on the facts and circumstances of the case, the impugned order (a-9) passed by the tribunal in rectification proceedings on september 6, 2007, was beyond the scope of rectification jurisdiction under section 21a(2) of the pgst act, 1948 and therefore without jurisdiction, hence liable to be set aside?(ii) whether the impugned order, annexure a-9, is beyond the prescribed period of limitation of two years, given in section 21a(2) of the act and therefore without jurisdiction and, hence liable to be quashed?(iii) whether, on the facts and circumstances of the case, the learned tribunal was bound to adjudicate all the issues raised in original appeal which were not decided by the tribunal while passing the original order?(iv) whether the order passed by the assessing authority is barred by limitation as prescribed under section 11(3) as amended by notification dated march 3, 1998?(v) whether, on the facts and circumstances of the case, the original order of assessment was time-barred even under the unamended section 11(4) of the pgst act, as no notice of best judgment assessment was ever given to the assessee before passing any order?3. the appellant is a dealer registered under the provisions of the 1948 act and 2005 act and filed four quarterly returns for the assessment year 1994-95 and paid tax according to the returns. the assessing authority issued notice dated october 24, 1997 under section 11(2) of the 1948 act and made assessment creating additional demand vide orders dated april 29, 2004. it was observed that the assessee failed to attend the proceedings and assessment could not be finalised earlier due to non-co-operation of the assessee. after fresh notice, shri rajiv lumba, advocate appeared and took adjournment. thereafter, written objections were filed. the assessee refused to produce the account books on the ground that the assessing authority had no jurisdiction to frame assessment. the assessing authority rejected the objection as to jurisdiction on the strength of notification dated september 28, 1992 conferring powers of assessing authority on aetc (inspection). it was observed that the conferment of the said power had already been upheld by the high court in devi dass gopal krishan v. state of punjab . it was further observed that transfer under rule 39a of the case from eto to aetc (inspection) was valid. the plea of assessment being time-barred was also rejected. it was observed that the amendment was dated march 3, 1998 prescribing the time-period of three years from the last date for furnishing the last return. the amendment was held to be prospective which did not affect the earlier assessment years for which no time-limit was laid down. the assessing authority created a demand of rs. 1,53,901 in addition to tax of rs. 3,103 paid by the assessee. the assessee preferred appeals which were dismissed. the appellate authority affirmed the view of the assessing authority that limitation prescribed under the amending act 12 of 1998 was not applicable to the present case which was for the assessment year 1994-95. thereafter, the assessee preferred second appeal before the tribunal. main contention raised was that the orders of assessment were after the period of limitation prescribed for assessment and demand for additional tax was without jurisdiction. the tribunal allowed the appeal vide order dated july 8, 2005. the tribunal held that the statutory period of three years laid down in the amending act was applicable and the assessment was time-barred. observations of the tribunal are as under:4.... the learned counsel for the state is unable to give any reasonable explanation for not completing the assessment within the statutory period of three years as per the latest amendment made in the law. accordingly, the orders of the appellate authority as well as the assessing authority are set aside, the tax liability as per the gto already deposited by the appellant shall be treated as final and the learned counsel for the appellant also agrees that he shall not claim any refund at any time.4. the revenue filed rectification application under section 21a(2) of the 1948 act on november 27, 2006. it was submitted that the act was amended on march 3, 1998 prescribing the period of limitation but the same could not apply in the case of assessment in question which was prior to the amendment. the amendment had to be treated as prospective in absence of the same being expressly or by necessary implication being retrospective. the revenue also filed identical application on april 18, 2007. first application was dismissed as not pressed on august 27, 2007 on the ground that another application had been filed and the second application was allowed vide order dated september 6, 2007 which has been impugned in the present writ petition. therein, it was observed that since prior to amendment, no period was prescribed for framing assessment under section 11(4) and period prescribed was under section 11(4) only to proceed to assess, the assessment was not barred by limitation. the assessing authority had already proceeded to assess by giving notice dated october 24, 1997. amendment which came into force only on april 20, 1998 did not have retrospective effect. matter was governed by old section 11(4) of the act. prayer on behalf of the assessee that in case the order of the tribunal was to be rectified, the matter should be decided afresh, was also rejected as being beyond the scope of rectification application. reliance was placed on judgments of this court in emkay industries v. state of punjab [2005] 139 stc 57 and khazan chand nathi ram v. state of haryana [2004] 136 stc 261.5. in spite of opportunity given, no reply has been filed on behalf of the state.6. we have heard learned counsel for the parties and perused the record.7. the learned counsel for the appellant submitted that by virtue of amendment made in the year 1998, the period of three years was laid down for completing the assessment and even if the said period is taken to have commenced from the date of amendment, the same came to an end on march 3, 2001 while the order of assessment was beyond the period of six years from the date of amendment. the amendment was applicable to the present case which was pending on the date the amendment came into force. the provision being procedural was applicable to pending proceedings and its applicability did not depend on the date of filing of return or commencement of the lis. general principle of prospective application of amendment not applying to lis already commenced prior to amendment could not apply to a procedural provision. provision introducing limitation was a procedural provision. such a provision would apply to all pending proceedings. in any case, the period of three years prescribed in the amending provision can apply from the date of coming into force of the amendment if not from the date of ending of the year of assessment and to that extent, the provision may be prospective and the same made in the year 2004 or thereafter could not be justified. in any case, the tribunal having held the bar of limitation to be applicable, in rectification proceedings, the said order could not be set aside even if two views are possible with regard to the view already taken by the tribunal. even where no limitation was prescribed, assessments must be completed in reasonable time.8. the learned counsel for the revenue/state submitted that under section 11 of the act, no period of limitation having been prescribed, the impugned order of assessment passed on april 29, 2004 or other dates were valid orders of assessment. in respect of years of assessment preceding the amendment, the amendment could not be looked into. the learned counsel for the state referred to letter dated august 22, 2002 written by the asses-see stating that the company was sick company and reference was pending before the bifr. the company has sought various concessions including deferment of sales tax liability. it was submitted that limitation had to commence from the date of the said letter.9. before we proceed to deal with the questions proposed on behalf of the appellant, it will be appropriate to refer to the provisions of section 11 of the act before and after the amendment:_________________________________________________________________________________________before amendment | after amendment __________________________________________________________________________________________11. assessment of tax.--(1) if the assess- 11. assessment of tax.--(1) if the assessing ing authority is satisfied without requir- authority is satisfied without requiring theing the presence of dealer or the presence of dealer or the production byproduction by him of any evidence that him of any evidence that the returns fur-the returns furnished in respect of any nished in respect of any period are correctperiod are correct and complete, he shall and complete, he shall pass an order ofassess the amount of tax due from the assessment on the basis of such returnsdealer on the basis of such returns. within a period of three years from the lastdate prescribed for furnishing the lastreturn in respect of such period.(2) if the assessing authority is not satis- (2) if the assessing authority is not satis-fied without requiring the presence of fied without requiring the presence ofdealer who furnished the returns or dealer who furnished the returns orproduction of evidence that the returns productions of evidence that the returnsfurnished in respect of any period are cor- furnished in respect of any period arerect and complete, he shall serve on such correct and complete, he shall serve ondealer a notice in the prescribed manner such dealer a notice in the prescribedrequiring him, on a date and at place manner requiring him, on a date and atspecified therein, either to attend in place specified therein, either to attend inperson or to produce or to cause to be person or to produce or to cause to beproduced any evidence on which such produced any evidence on which suchdealer may rely in support of such returns. dealer may rely in support of such returns.(3) on the day specified in the notice or as (3) on the day specified in the notice or assoon afterwards as may be, the assessing soon afterwards as may be, the assessingauthority shall, after hearing such evi- authority shall, after hearing such evi-dence as the dealer may produce, and such dence as the dealer may produce, and suchother evidence as the assessing authority other evidence as the assessing authoritymay require on specified points, assess the may require on specified points, pass anamount of tax due from the dealer. order of assessment within a period ofthree years from the last date prescribedfor furnishing the last return in respect ofany period.(4) if a dealer having furnished returns in (4) if a dealer having furnished returns inrespect of a period fails to comply with respect of a period fails to comply with thethe terms of notice issued under sub-sec- terms of notice issued under sub-sectiontion (2), the assessing authority shall, (2), the assessing authority shall, within awithin five years after the expiry of such period of three years from the first dateperiod proceed to assess to the best of his prescribed for furnishing the last return injudgment the amount of tax due from the respect of such period, pass an order ofdealer. assessment to the best of his judgment.(5) if a dealer does not furnish returns in (5) if a dealer does not furnish returns inrespect of any period by the prescribed respect of any period by the last date pre-date, the assessing authority shall, scribed, the assessing authority shall,within five years after the expiry of such within a period of five years from the lastperiod, after giving the dealer a reasona- date prescribed for furnishing the return inble opportunity of being heard, proceed to respect of such period and after giving theassess to the best of his judgment, the dealer a reasonable opportunity of beingamount of tax, if any, due from the dealer. heard, pass an order of assessment to thebest of his judgment.(6) if upon information which has come (6) if upon information which has comeinto his possession, the assessing into his possession, the assessing author-authority is satisfied that any dealer has ity is satisfied that any dealer has been lia-been liable to pay tax under this act in ble to pay tax under this act in respect ofrespect of any period but has failed to any period but has failed to apply for regis-apply for registration, the assessing tration, the assessing authority shall,authority shall, within five years after the within five years after the expiry of suchexpiry of such period, after giving the period, after giving the dealer a reasonabledealer a reasonable opportunity of being opportunity of being heard, proceed toheard, proceed to assess to the best of his assess, to the best of his judgment, thejudgment, the amount of tax, if any, due amount of tax, if any, due from the dealerfrom the dealer in respect of such period in respect of such period and all subse-and all subsequent periods and in cases quent periods and in case where suchwhere such dealer has wilfully failed to dealer has wilfully failed to apply for regis-apply for registration, the assessing tration, the assessing authority may directauthority may direct that the dealer shall that the dealer shall pay by way of penalty,pay by way of penalty, in addition to the in addition to the amount so assessed, aamount so assessed, a sum not exceeding sum not exceeding one-and-a-half timesone-and-a-half times that amount. that amount.(7) the amount of any tax, penalty or inter- (7) the amount of any tax, penalty or inter-est payable under this act shall be paid est payable under this act shall be paidby the dealer in the manner prescribed by by the dealer in the manner prescribed, bysuch date as may be specified in the such date as may be specified in the noticenotice issued by the assessing authority issued by the assessing authority for thefor the purpose and the date so specified purpose and the date so specified shall notshall not be less than fifteen days and not be less than fifteen days and not moremore than thirty days from the date of than thirty days from the date of service ofservice of such notice: such notice:provided that the. assessing authority provided that the assessing authoritymay, with the prior approval of the assist- may, with the prior approval of the assistantant excise and taxation commissioner, excise and taxation commissioner, in-in-charge of the district extend the date of charge of the district extend the date ofsuch payment or allow payment by instal- such payment or allow payment by instal-ments against an adequate security or ments against an adequate security orbank guarantee. bank guarantee.(8) if the tax assessed under this act or (8) if the tax assessed under this act or anyany instalment thereof is not paid by any instalment thereof is not paid by any dealer within the time specified thereof in dealer within the time specified thereof inthe notice of assessment or in the order the notice of assessment or in the orderpermitting payment in instalments, the permitting payment in instalments, thecommissioner or any other person commissioner or any other personappointed to assist him under sub-section appointed to assist him under sub-section(1) of section 3 may, after giving such (1) of section 3 may, after giving suchdealer an opportunity of being heard, dealer an opportunity of being heard,impose on him a penalty not exceeding in imposed on him a penalty not exceedingamount the sum due from him. in amount the sum due from him.(9) any assessment made under this sec- (9) any assessment made under thistion shall be without prejudice to any section shall be without prejudice to anypenalty imposed under this act. penalty imposed under this act.(10) the commissioner may, for reasons tobe recorded in writing, extend the periodof three years, for passing the order ofassessment for such further period as hemay deem fit.(11) where the proceedings of the assess-ment are stayed by an order of any court,the period for which such stay remains inforce, shall not count towards computingthe period of three years specified underthis section for passing the order of assess-ment.(12) the assessing authority may, on hisown motion, review any assessment orderpassed by him and such review shall becompleted within a period of one yearfrom the date of the order under review.re : question no. (i)10. according to the learned counsel for the assessee, the impugned order was beyond the scope of rectification in view of the law laid down by the honourable supreme court in deva metal powders pvt. ltd. v. commissioner trade tax u.p. : 2008(221)elt16(sc) and t.s. balaram, income-tax officer, company circle iv, bombay v. volkart brothers : [1971]82itr50(sc) .11. the learned counsel for the assessee also referred to judgments of the honourable supreme court in anand gopal sheorey v. state of bombay : 1958crilj1429 and new india insurance co. limited v. smt. shanti misra : [1976]2scr266 and judgments of this court in commissioner of income-tax v. mrs. manjula sood , commissioner of income-tax, patiala ii v. sadhu ram [1980] 127 itr 517 and haryana iron and steel rolling mills v. commissioner of income-tax , which laid down that procedural law is retrospective and that limitation law is procedural law.12. the learned counsel for the assessee has also relied on judgments of the honourable supreme court in state of orissa v. debaki debi : [1964]5scr253 , state of gujarat v. patel raghav natha : [1970]1scr335 and state of punjab v. bhatinda district coop. milk p. union ltd. [2007] 10 vst 180 to submit that where no period was laid down, power should be exercised within reasonable time.13. the learned counsel for the revenue/state submitted that rectification could be sought by the revenue also and rectification could be allowed if there was error apparent on the record. subsequent contrary view of a higher court could also be a ground for holding that the view of the tribunal suffered from error apparent on the record. reliance has been placed on judgments in p.s. jain motor company (pb.) pvt. ltd. v. state of punjab [1992] 84 stc 177 (p&h;), mysore cements limited v. deputy commissioner of commercial taxes (assessment-v), city division-ii [1994] 93 stc 464 (karn) and jagatjit distilling and allied industries limited v. assessing authority kapurthala . it was also submitted that it had been held by the honourable supreme court in state of punjab v. murlidhar mahabir parshad [1968] 21 stc 29 that under the 1948 act, once notice for assessment had been served, the assessment has to be treated to be within limitation. the tribunal in its order dated july 8, 2005 having simply referred to the amended provisions, committed an error apparent on the face of record by observing that the assessment was barred by limitation. the tribunal had not gone into the question whether the new amendment was applicable or not. in the order of rectification, it was rightly held that new amendment did not apply. reliance has also been placed on judgments of this court in emkay industries [2005] 139 stc 57 holding that the amendment was applicable if notice for assessment was after the coming into force of the act and not otherwise.14. scope of rectification is well known and has been subject-matter of consideration by the honourable supreme court, inter alia, in satyanarayan laxminarayan hegde v. mallikarjun bhavanappa tirumale : [1960]1scr890 , thungabhadra industries ltd. v. government of andhra pradesh : [1964]5scr174 , t.s. balram v. volkart bros. : [1971]82itr50(sc) and deva metal powders pvt. ltd. : 2008(221)elt16(sc) .15. since judgment in deva metal powders pvt. ltd. : 2008(221)elt16(sc) is a recent one, we may refer to the observations in the said judgment. referring to earlier judgments in t.s. balram : [1971]82itr50(sc) and satyanarayan : [1960]1scr890 , it was observed as under:10 para 8 at page 755 of [2007] 10 vst . this court in thungabhadra industries ltd. (in all appeals) v. government of andhra pradesh represented by the deputy commissioner of commercial taxes, anantapur : [1964]5scr174 held as follows:'there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.'11 para 9 [2007] 10 vst 755. an error apparent on the face of the record for acquiring jurisdiction to effect rectification must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. the following observations in connection with an error apparent on the face of the record in the case of satyanarayan laxminarayan hegde v. mallikarjun bhavanappa tirumale : [1960]1scr890 need to be noted:'an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.'13 para 10 at [2007] 10 vst 755. in our view rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. what the revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under the provisions of section 22 and, therefore, the high court was not justified in holding that there was mistake apparent on the face of the record. in order to bring an application under section 22, the mistake must be 'apparent' from the record. section 22 does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. where an error is far from self-evident, it ceases to be an apparent error. it is, no doubt, true that a mistake capable of being rectified under section 22 is not confined to clerical or arithmetical mistake. on the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof....16. in the present case, the tribunal held that the assessment was barred by limitation without going into the question whether the amendment introduced on march 3, 1998 was applicable to proceedings already pending for which notice for assessment had already been given. the tribunal held that this was an error apparent as the amendment did not extinguish the period of limitation still available for the pending assessments. view of the tribunal is based on a judgment of this court in emkay industries [2005] 139 stc 57 which is directly on the point. order of the tribunal was, thus, clearly within the scope of rectification. the view of the tribunal is also supported by judgment of the honourable supreme court in murlidhar mahabir parshad [1968] 21 stc 29. it is well-settled that pending proceedings which are initiated within applicable limitation, do not stand extinguished unless it is expressly so provided under the new law nor closed proceedings are revived.17. in smt. shanti misra : [1976]2scr266 , the honourable supreme court observed:9... amendment of the law of limitation could not destroy the plaintiffs right of action which was in existence when the act came into force. we are conscious of the distinction which was sought to be made in the application of these principles. it was said that the right could not be destroyed but recourse to suit would be available under the old law of limitation. we, however, think that giving retrospective effect to the change of law in relation to the forum, in the context of the object of the change, is imperative. that being so the principles aforesaid for overcoming the bar of limitation will be applicable.18. this position has been summed up as under in 'principles of statutory interpretation' by justice g.p. singh, tenth edition:.. statutes of limitation are thus retrospective in so far as they apply to all legal proceedings brought after their operation for enforcing causes of action accrued earlier, but they are prospective in the sense that they neither have the effect of reviving a right of action which is already barred on the date of their coming into operation, nor do they have the effect of extinguishing a right of action subsisting on that date. but a statute may, expressly or impliedly by retrospectively extending limitation, revive a barred claim....19. in view of the above settled legal position, we are of the view that the assessment was not barred by limitation. in murlidhar mahabir parshad [1968] 21 stc 29, the honourable supreme court held that if notice of assessment had already been given, the assessment was to be treated to be within limitation. in emkay industries [2005] 139 stc 57, this court held that if notice of assessment was after the date of coming into force of the amendment, the period of limitation will apply and not otherwise. in the present case, notice of assessment was prior to the enforcement of amending law. the order of the tribunal dated july 8, 2005, thus, suffered from error apparent on the face of record, which could be rectified.20. accordingly, question no. (i) is decided against the assessee and in 20 favour of the revenue.re : question no. (ii)21. the learned counsel for the assessee submitted that the order of rectification was passed on september 6, 2007, while original order of the tribunal was dated july 8, 2005 and thus, order of rectification was beyond limitation. reliance has been placed on judgment of this court in state of punjab v. p.o. sales tax tribunal [2000] 119 stc 82.22. the learned counsel for the state is unable to show any contrary view. in view of judgment of this court relied upon on behalf of the assessee, we hold that the order of the tribunal was beyond the limitation for rectification and on that ground, the impugned order is liable to be quashed.re: question no. (iii)23. if the order of the tribunal holding the assessment to be barred by limitation was to be set aside, the tribunal was bound to adjudicate on all issues in the original appeal. however, in view of our answer to question no. (ii), this question has become academic.24. in view of our finding on question no. (i), these questions are to be answered in favour of the revenue. we order accordingly.as a result of above discussion, this appeal is allowed and the impugned order of the tribunal dated september 6, 2007 is set aside.