THE STATE OF HARYANAAND OTHERS versus HINDUSTAN CONSTRUCTION COMPANY LTD. on 15 September 2017

THE STATE OF HARYANAAND OTHERS

A

v.

HINDUSTAN CONSTRUCTION COMPANY LTD.

(Civil Appeal Nos. 10792-10794of2011)

B

SEPTEMBER 15, 2017

[RANJAN GOGOi AND NAVIN SINHA, JJ.)

Harya11a General Sales Tax Act, 1973 - s.40 - Revisional power - Exercise of revisiona/ power after repeal of 1973 Act on 1.4.2003 by Haryana Value Added Tax, 2003 - Sustainability of -C Refund ordered under 1973 Act-Repeal of 1973 Act- Subsequently, authority set aside the refund order in exercise of suo moto revisonal powers uls.40 - Challenge against - Held: The assessment under the Act of 19 7 3 having been completed and refund ordered, the exercise of suo-moto revisional powers und.er s.40 of the same after D repeal was clearly unsustainable in view of the contrary intention expressed under s. 61 of the Act of 2003, savi11g only pending proceedings - s.4 of the Punjab Ge11eral Clauses Act, 1858 will have no application in view of s.61 of the repealing· Act - General Clauses Act -Punjab General Clauses Act, 1858 - s.4 - Repeal -Revision - Taxation.

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--Repeal .New enactment after repeal Applicability of General Clauses Act to the fresh enactment - Held: If the repeal is followed by a fresh enactment 011 the same subject, the applicability of the General Clauses Act would undoubtedly require a11 exami11atio11 of the language in the new enactment to see if it expresses a different intention from the earlier Act - The enquiry would necessitate an examination if the old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them -if the new Act manifests a different intention, the application of the General Clauses Act will stand excluded - General Clauses Act.

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Dismissing the appeals, the Court

HELD: 1. There were no proceedings pending against the respondent under the Act of 1973 when the new Act came into force on 01.04.2003. The sno-moto revisional power under Section H 40 of the former·Act was exercised on 07.06.2004. The repeal and saving clause in Section 61 of the Act of 2003, saved only A pending proceedings under the repealed Act. The intendment clearly was that matters which stood closed under the Act of 1973 bad to be given a quietus and could not be reopened. · The assessment under the Act of 1973 having been completed and refund ordered, the exercise of suo-moto revisional powers under 8 Section 40 of the same after repeal was clearly unsustainable in view of the contrary intention expressed under Section 61 of the Act of 2003, saving only pending proceedings. Section 4 of the Punjab General Clauses Act, 18S8 will have no application in view of the contrary intendment expressed in Section 61 of the repealing Act. Had a contrary intention not been expressed, the C issues arising for consideration would have been entirely different. (Paras 9, 10)(488-C-F)

A

2. The legislature, in its wisdom having noticed the limitation and constraints under Section 61 of the Act of 2003, made necessary amendments to the same by Act No. 3 of 2010 on 02.04.2010. Any interpretation saving the revisional power under Section 40 of the Act of 1973, without any proceedings pending on the relevant date, by resort to Section 4 of the Punjab General Clause Act, 18S8 would render the amendment redundant, and an exercise in futility, something which the legislature never .inte~ded to do. Such an incongruous interpretation leading to absurdity has to be avoided. [Para 11J(489-B-C]

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Raymond Ltd and Am: v. State of Chhaltisgarh & Ors. (2007) 3 SCC 79 : (2007) 2 SCR 990; Swastik Oil Mills Ltd v. H.B. Munshi, Deputy Commissioner of Sales T'ax, Bombay (1968). 2 SCR 492; Gammon India Ltd. v. Special Chief Secretary and Ors. (2006) 3 SCC 3S4 : [2006) 2 SCR 304; State of Punjab v. Mohar Singh Pratap Singh (19SS) 1 SCR 893 - referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTlON: Civil Appeal Nos. I 0792-10794 of201 I.

From the Judgment and Order dated 21.02.2005 of the High Court of Punjab and Haryana at Chandigarh in C. W. P. Nos. 15749, 15828 and 15830 of2004.

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WITH

C.A. Nos. 1!)795, 10808, 10805, 10807, 10804, 10796. 10801-10802, 10815-10816,10806,10810,10803,10799, 10812, 10798, 10797, 10800, 10820, 10811, 10813, !0814, 10809, 10817-10818, 10824,10830, 10829,10828,10826-10827,10825,10821-10823. 10831. 10837. 10833, c 10832, 10834-10835, 10840-10841and10838-10839of201 I

P. H. Parekh, Sr. Adv., Manish Paliwal, Gautam Sharma, Dr. Monika Gusain, Ms. Shruti Dutta, Suneel Kumar Atreya, Chander Shekhar Ashri, Pawan Upadhyay, Rajiv Agnihotri, Praveen Kumar. Abhay A. Jena, Vishal Prasad, Ms. Bina Gupta, Ms. Ritika Sethi, Utkarsh D Dixit, Pavan Kumar, R. N. Pareek, Ms. Kaveeta Wadia, Shashank Tripathi, Advs. for the appearing parties.

The Judgment of the Court was delivered by NAVIN SINHA, J. I. The common question of law arising for E consideration in this batch of appeals is whether the exercise of revisional power under .Section 40 of the Haryana General Sales Tax Act, 1973 (hereinafter referre~ to as 'the Act of 1973 ')after its repeal on l .4.2003, by the Haryana Value Added Tax, 2003 (hereinafter referred to as 'the Act of 2003'), is sustainable. The appeals have, therefore, been heard together and are being disposed by a common order.

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2. The facts, for better appreciation, shall be culled out from Civil Appeal Nos. I 0792-10794 of 2011. The sales tax assessment of the respondent, for the assessment year I 998-99, was completed and refund ordered on 12 .05 .2000, under the Act of 1973. Subsequently, the former Act was repealed by the Act of 2003 on 01.04.2003. A show cause G notice was issued to the respondent on 07.06.2004 regardingthe refund ordered earlier, in exercise ofsuo~moto revisional powers under Section 40 of the Act of 1973. By order dated 12.07.2004, the respondent was held liable for recovery of Rs. 65,35,632/-.

3. The order for recovery hf!ving been challenged by the H respondent before the High Court, it was held that resort to Section 40

of the Act of 1973, after coming into force of the new Act on 01.04.2003 was unsustainable, as the repeal and saving clause in Section 61 of the Act of 2003, saved only pending proceedings under the former. Since there were no proceedings pending against the respondent under the repealed Act, on the relevant date, the proceedings thereunder could not be sustained or justified by reference to Section 4 of the Punjab General Clauses Act, 1898.

4. Sh. Manish Paliwal, learned counsel appearing on behalf of the State ofHaryana, submitted that the refund having been wrongly obtained, resort to suo-moto revision tinder Section 40 of' the Act of l 973, exercised within the limitation of five years. was justified. The wrong benefit of refund clearly fell within the meaning of the expression privilege, obligation or liability acquired or incurred under the repealed Act, and was therefore saved by Section 4 of the Punjab General Clauses Act, 1898. Relying on Raymond Ltd. amt Anr. vs. State of Cltliattisgarlt & Ors., (2007) 3 sec 79, it was contended that the revisional power conferred on the revenue in a fiscal legislation should not be construed as a stand-alone provision, but as a provision intended to enable the revisional authority to ensure that the assessment had been carried out in accordance with law. The power vested in the revisional authority to correct an error in assessment has a direct nexus with the order of assessment giving finality to the order of the assessing authority. There is a corresponding obligation and responsibility on the assessee also, and when it is found that the assessment was otherwise then in accordance with law, the power of the revisional authority cannot be restricted in revenue and fiscal matters.

5. Reliance was further placed on Swastik Oil Mills Ltd vs. H.B.

M1111slii, Deputy Commissioner of Sales Tax, Bombay, 1968 (2) SCR 492, and Gammon India Ltd. vs. Special Cltief Secretary anti Ors., (2006) 3 SCC 354, in suppo1t of the submission that resort to Section 40 of the Act of 1973 was saved by reason of Section 4 of the Punjab General Clauses Act, 1898.

6. Sh. P.H. Parekh, learned Senior Counsel appearing on behalf of the respondent, urged that the impugned order called for no interference. The repeal and saving clause in Section 61 of the Act of 2003 exclusively saved pending proceedings only. The application of the Punjab General Clauses Act, l 898, therefore, stood excluded by the expression of a different intention in the repealing Act. The legislature subsequently amended Section 61 of the Act of 2003, suitably on 02.04.2010. .

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A 8. We have considered the respective submissions. A simple repeal of an Act leaves no room for expression of a contrary opinion. However, ifthe repeal is followed by a fresh enactment on the same subject, the applicability of the General Clauses Act would undoubtedly require an examination of the language in the new enactment to see if it expresses a different intention from the earlier Act. The enquiry would necessitate B an examination if the old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them. If the new Act manifests a different intention, the application of the General Clauses Act will stand excluded.

A

9. There were no proceedings pending against the respondent c undertheAct of l 973 when the new Act came into force on 01.04.2003. The suo-moto revisfonal power under Section 40 of the former Act was exercised on 07.06.2004. The repeal and saving clause in Section 6 l of the Act of 2003, saved only pending proceedings under the repealed Act. The intendment clearly was that matters which stood closed under D the Act of 1973 had to be given a quietus and could not be reopened.

l 0. The assessment under the Act of 1973 having been completed and refund ordered, the exercise of suo-moto revisional powers under Section 40 of the same after repeal was clearly unsustainable in view of the contrary intention expressed under Section 61 of the Act of 2003, E saving only pending proceedings. Section 4 of the Punjab General Clauses Act, 1858 will have no application in view of the contrary intendment expressed in Section 61 of the repealing Act. Had a contraiy intention not been expressed, the issues arising for consideration would have been entirely different. The observations in State of Pu11jah vs. Mohar Si11gli Pratap Singll, (1955) l SCR 893, as extracted below are considered F relevant:- E

"8 .......... Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room G for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act THE STATE OF HARYANA AND OTHERS v. HINDUSTAN CONSTRUCTION COMPANY LTD. [NAVIN SINHA, J.] . ·

expressly keeps alive old rights and liabilities but whether it A manifests an intention to destroy them ..... "

The observ.ations in Gammon India Ltd. (supra) at paragraph 73 are to the same effect. ·

11. The legislature, in its wisdom having noticed the limitaticm and constraints under· Section 61 ·of the Act o.f 2003, made necessary ,B amendments 'to the same by Act No. 3 of 2010 on 02.04.2010.' Any interpretation saving the rcvisional powerunder Section 40 9fthe Act of 1973, without any proceedings pending on the relevant date, by resort to Section 4 of the Punjab General Clause Act, 1858 would render the amendment redundant, and an exercise in futility, something which the c legislature never intended to do. Such an incongruous intcipretation leading to absurdity has to be avoided. '

· 12. In Civil Appeal l 0840-10841 of2011, an additional ground has been urged that the power of review wider Section 41 of the Act of · 1973 was exercised on 12.8.2003, by the Deputy Excise and Taxation Officer, to review an order of assessment dated 4.3.2002. Section 35 of the new Act vested the power ofreview in the Tribunal exclusively.

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13. The legislative provisions being different in the precedents cited on behalf of the appellants, the same have no relevance to the issue in controversy. The order of the High Courf_calls for no interference.

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14. The appeals, for reasons discussed, lack merit and are · dismissed. · · . ·

Dcvika Gujral

Appeals dismisst'd.