Punjab-Haryana High Court
State Of Punjab And Another vs M/S Des Raj Bhim Sain on 19 July, 2012
Bench: Ajay Kumar Mittal, G.S. Sandhawalia
VATAP No. 60 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.M. No. 20689-CII of 2011 and
C.M. Nos. 4451-52-CII of 2012 &
VATAP No. 60 of 2011
Date of Decision: 19.7.2012
State of Punjab and another
....Appellants.
Versus
M/s Des Raj Bhim Sain
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MR. JUSTICE G.S. SANDHAWALIA.
PRESENT: Mr. Gaurav Garg Dhuriwala, DAG, Punjab,
for the appellants.
Mr. K.L. Goyal, Senior Advocate with
Mr. Sandeep Goyal, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
C.M. No. 20689-CII of 2011 Allowed as prayed for.
C.M. No. 4451-CII of 2012 This an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment/correction of the list of events and dates.
The application is allowed subject to all just exceptions. C.M. Nos. 4452-CII of 2012 Application is allowed as prayed for. Documents are taken VATAP No. 60 of 2011 -2- on record subject to all just exceptions.
VATAP No. 60 of 2011
1. The State of Punjab has filed this appeal under Section 68 (2) of the Punjab Value Added Tax Act, 2005 (in short "the Act") against the order dated 20.5.2011 (Annexure A-5) passed by the Value Added Tax Tribunal, Punjab (hereinafter referred to as "the Tribunal") claiming the following substantial questions of law:-
"i) Whether the order passed by the learned Tribunal is sustainable in law?
ii) Whether the order passed by the Tribunal by relying upon judgment of this Hon'ble Court in the case of M/s Shreyans Industries Ltd. which has already been challenged before Hon'ble Apex Court, and the ratio of which is not applicable to the facts of this case is sustainable in law?
iii) Whether the Tribunal has rightly allowed the appeal of the respondent when the Commissioner had exercised the power in accordance with Section 29 (4) of the Punjab Value Added Tax Act, 2005 before the expiry of the period of limitation as the annual statement was filed on 17.11.2006 in the present case and three years were to expire on 16.11.2009?
iv) Whether the provision of Section 29(4) is directory in nature especially when the legislature has empowered the Commissioner to extend the period of limitation by exercising powers under Section 29 VATAP No. 60 of 2011 -3- (4) of the Punjab Value Added Tax Act, 2005?"
2. Put shortly, the facts necessary for the disposal of the present appeal are that the assessee filed its quarterly return for the year 2005-06 and had also filed annual statement in Form VAT-20 on 17.11.2006. The assessment was framed on 26.3.2010 (Annexure A-1) creating an additional demand of tax amounting to ` 1,43,588/- after issuing notice under Section 29 of the Act. The revenue approached the appropriate authority for the grant of extension vide letter dated 11.6.2009 under Section 29(4) of the Act. Vide letter dated 24.7.2009, the time was extended to finalize the assessment up to 31.3.2010. However, the assessee was asked to deposit the amount of demand of tax on or before 25.4.2010. The assessee filed an appeal before the Deputy Excise and Taxation Commissioner (Appeals), Patiala Range, Patiala who vide order dated 23.9.2010 disposed of the appeal remanding the matter to the Excise and Taxation Commissioner, Barnala to decide the case afresh after giving proper opportunity and reconsidering all the evidence in the presence of the assessee. Feeling dissatisfied, the assessee filed appeal before the Tribunal. The Tribunal vide order dated 20.5.2011 allowed the appeal holding that the assessment was not framed within three years from the date of filing of the annual return and, therefore, was barred by limitation. Hence, the present appeal by the revenue.
3. Learned State counsel submitted that the return was filed on 17.11.2006 which could be filed up to 20.11.2006. According to the learned counsel, on 11.6.2009 the matter was referred to the appropriate authority for extension of time under Section 29(4) of the VATAP No. 60 of 2011 -4- Act. The said period was ultimately extended vide letters dated 24.7.2009 (Annexure A-2) and the assessment framed on 26.3.2010 was, thus, within time. It was urged by the learned State counsel that the Tribunal had erred in holding the same to be barred by limitation misinterpreting the provisions of Section 29(4) of the Act.
4. Learned counsel for the respondent-assessee controverting the aforesaid submissions referred to sub-section (4-A) inserted in Section 29 of the Act by the Punjab Value Added Tax (Third Amendment) Act, 2010, which is to the following effect:-
"(4-A) Notwithstanding anything contained in sub- section (4), the assessment under sub-section (2) or sub-section (3), in respect of which annual statement for the assessment year 2005-06 has already been filed, can be made within a period of three years, commencing from the 20th day of November, 2006."
5. Relying upon the aforesaid amendment, it was contended that despite of sub-section (4) to Section 29 of the Act providing for an appropriate authority to extend the period of limitation but by virtue of sub-section (4-A) thereof, no assessment could be framed beyond 20.11.2009 in respect of assessment year 2005-06. Learned counsel further submitted that the present case related to the assessment year 2005-06 and, therefore, the assessment framed on 26.3.2010 was bad in law.
6. We have heard the learned counsel for the parties.
7. The point that arises for consideration in this appeal is whether in view of incorporation of sub-section (4-A) to Section 29 of VATAP No. 60 of 2011 -5- the Act, the appropriate authority under the Act had the power to extend period of limitation for framing assessment for the assessment year 2005-06 beyond 20.11.2009.
8. The answer to the above said question is in the negative. The similar argument raised before the Tribunal was repelled by the Tribunal with the following observations:-
"A combined reading of sub-section 4 and newly added sub-section (4-A) of section 29 ibid, would reveal that section (4-A) of section 29 ibid override the provisions of sub-section 4 including its proviso as sub-section (4-A) ibid contains non-obstante clause. The provisions of this sub-section (4-A) postulates in clear and unambiguous terms that assessment could be made only within three years from 20.11.2006, which works out to 20.11.2009 and not beyond that. It is well settled principle of interpretation that a statue is to be interpreted on its plain reading; in the absence of any doubt or difficulty arising out of such reading of a statue defeating or frustrating the object and purpose of an enactment, it must be read and understood by its plain reading. In the present one, no difficulty or doubt arises in interpreting the provisions of sub-section (4-A) of Section 29 ibid. That being so, it has to be read and understood by its plain reading. This sub-section no where says that the Commissioner under the VATAP No. 60 of 2011 -6- exceptional circumstances could extend the period for framing assessment. Had it been the intention of the legislature to confer such power upon him, the mention in this regard would have certainly been made in the amending provision. Thus, it crystalizes the conclusion that the Commissioner did not have the power to extend the period for framing assessment for the year 2005-06."
9. It was further observed by the Tribunal as under:-
"On looking the matter in the backdrop of these observations, it can be unmistakably held that the 'non-obstante clause' engrafted in sub-section (4-A) of section 29 ibid fetters the Commissioner from granting extension of time for framing assessment for the year 2005-06. Thus, the extension granted by him has become non-est in the eyes of law."
10. The said observations of the Tribunal have not been shown to be erroneous or perverse in any manner. No question of law muchless a substantial question of law arises in this appeal for consideration of this Court. Accordingly, finding no merit in the appeal, the same is hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
July 19, 2012 (G.S. SANDHAWALIA)
gbs JUDGE