MOI Engineering Ltd., Mohali v. State of Punjab & Anr.

CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. L. Goyal, Advocate for the appellant. * * * ADARSH KUMAR GOEL, J. (Oral) :

The Assessee has preferred this appeal under Section 68 of the Punjab Value Added Tax Act, 2005 (for short, the Act) against the order of the Tribunal, constituted under the said Act, in Appeal No. 698 of 2004- 05, dated 17.4.2008 for Assessment Year 1994-95, proposing to raise following substantial questions of law :- “(i) Whether the assessment of the dealer for Assessment Year 1994-95 framed on 29.4.2004 (Annexure A-1/A) is an assessment under section 5 (a) of the CST Act 1956 read with Section 11 (4) of PGST Act and not u/s 11 (3) ? VATAP No. 52 of 2008 2 If the answer to the above question is in affirmative : (ii) Whether the assessment framed on

29.4.2004 is barred by limitation as proceeding of best judgment assessment u/s 11 (4) of PGST Act have not been initiated under the Central Sales Tax Act, 1956 before the expiry of 5 years from the last date of period of assessment ? (iii) Whether the amendment made in Section 11 (3) by Act No. 12 of 1998 w.e.f.

3.3.1998 is procedural in character and is applicable on all the assessments pending as on that day, which can be completed even after the amendment made on 3.3.1998 ? If the answer to the above question is in affirmative : (iv) Whether assessment of the dealer for Assessment Year 1994-95 framed on 29.4.2004 is barred by limitation provided under Section 11 of the PGST Act 1948 ? (v) Whether the assessment of the dealer for Assessment Year 1994-95 framed

24.4.2004 is liable to be set aside having been framed after an abnormal delay of more than 8 years from the last date of filing of Returns u/s 10 (3) of the PGST Act 1948 on account of delay and laches particular in view of Section 14 (1) of the Act, which provides retention of books of accounts VATAP No. 52 of 2008 3 for a period of last 5 years only ? (vi) Whether the proceedings under the PGST Act and the CST Act 1956 are two different proceedings under two different Acts and therefore unless a specific notice is issued under the CST Act 1956 for assessment under that Act, any assessment as such is not sustainable in the eyes of law ? (vii) Whether facts and circumstances of the case, the appellant assessee can produce Declaration Forms, i.e. Form C and Form H even at this stage and those Declarations are liable to be considered by the Assessing Authority ? (viii) Whether the AETC (Inspection) Mohali, having the jurisdiction of assessment in Punjab State, is not an authority subordinate to the DETC, Patiala Division, Patiala and therefore, any order under Rule 39 passed by the DETC transferring the case to his file is void ab initio and non-est in the eyes of law ?”

The Assessee was assessed under the provisions of the Punjab General Sales Tax Act, 1948, for its liability under the Central Sales Tax Act, 1956, vide assessment order dated 19.05.2004. The assessment was affirmed on main appeal and has also been affirmed in second appeal.

We have heard learned counsel for the appellant and perused the record.

The contention raised by learned counsel for the assessee is VATAP No. 52 of 2008 4 that no separate notice was given for assessment under the Central Act. It is not disputed that the notice given mentioned both the Acts and the Assessing Authority is the same. It cannot be, thus, held that any substantial question of law arises from this submission.

It is next submitted that by amendment dated 03.03.1998, limitation of three years for finalising assessment has been made. The last date of filing the return being 30.04.1994, limitation for assessment was up to 30.04.1997. The law of limitation being procedural, is retrospective and thus, after 03.03.1998, assessment could be made, at best up to 03.03.2001.

We find that this issue has been gone into by this Court in the case of the Assessee itself and it was held that new provision of limitation cannot extinguish cause of action already accrued, for which, action had already been initiated in time, unless there is any specific provision to the contrary. In the said judgment, reliance was placed, apart from other judgments, on a judgment of Hon'ble Supreme Court in the case of New India Insurance Co. Limited vs. Smt. Shanti Misra, AIR 1976 SC 237 to the following effect :-

.....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 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.

In view of above, the question of limitation decided by the VATAP No. 52 of 2008 5 Tribunal being in consonance with the judgment of this Court, cannot be held to be a substantial question of law.

We do not find any other substantial question of law arising for consideration in the appeal.

The appeal is accordingly dismissed. (ADARSH KUMAR GOEL) JUDGE November 28, 2008 monika ( L. N. MITTAL ) JUDGE