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Sunday, March 6, 2016

when the period of limitation prescribed in the Act for passing the assessment order expires, thereafter, the Commissioner is debarred from exercising his powers under sub-section (10) of Section 11 of the Act and cannot extend the period of limitation for the purposes of assessment.=The Assessing Officer, however, sent notices to the respondent- assessee in Form ST-XIV for the aforesaid Assessment Years, i.e., after the expiry of three years. The assessee took an objection that these notices were sent beyond the period of assessment and, therefore, it was not permissible for the Assessing Officer to issue notice after the expiry of three years and carry on with the assessment proceedings.=Therefore, there would be no question of extending the time for assessment when the assessment has already become time barred. A valuable right has also accrued in favour of the assessee when the period of limitation expires. If the Commissioner is permitted to grant the extension even after the expiry of original period of limitation prescribed under the Act, it will give him right to exercise such a power at any time even much after the last date of assessment That provision is made for the benefit of the assessee which empowers the Assessing Officer to grant an extension of time for filing of the return of income and, therefore, obviously will have no bearing on the issue at hand. Moreover, this Court in Ajantha Electricals's case (supra), which is relied upon by the learned counsel for the appellant, held that the time can be extended even after the time allowed originally has expired on the interpretation of the words “it has not been possible” occurring in Section 133(2) of the Act. The Court, thus, opined that the aforesaid expression would mean that the time can be extended even after original time prescribed in the said provision has expired. Same is our answer to the argument of Mr. Ganguli predicated on Section 28 of the Arbitration Act, 1940 as that provision was in altogether different context.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NOS.      2506-2511 OF 2016
              (ARISING OUT OF SLP (C) NOS. 21712-21717 OF 2009)



|STATE OF PUNJAB & ORS.                            |…..APPELLANT(S)         |
|   VERSUS                                         |                        |
|M/S. SHREYANS INDUS LTD. ETC.                     |.....RESPONDENT(S)      |


                                    WITH
                        CIVIL APPEAL NO. 2512 OF 2016
                 (ARISING OUT OF SLP (C) NO. 31488 OF 2009)

                  CIVIL APPEAL NOS.      2513-2514 OF 2016
              (ARISING OUT OF SLP (C) NOS. 35619-35620 OF 2009)

                        CIVIL APPEAL NO. 2515 OF 2016
                  (ARISING OUT OF SLP (C) NO. 1672 OF 2010)

                     CIVIL APPEAL NOS. 2516-2517 OF 2016
              (ARISING OUT OF SLP (C) NOS. 13237-13238 OF 2010)

                  CIVIL APPEAL NOS.      2518-2519 OF 2016
               (ARISING OUT OF SLP (C) NOS. 5076-5077 OF 2011)

                        CIVIL APPEAL NO. 2520 OF 2016
                 (ARISING OUT OF SLP (C) NO. 33095 OF 2011)

                                     AND

                        CIVIL APPEAL NO. 2521 OF 2016
                 (ARISING OUT OF SLP (C) NO. 12305 OF 2015)


                               J U D G M E N T

A.K. SIKRI, J.
                 Leave granted.
In these appeals, the judgment which is  impugned  is  passed  by  the  High
Court of  Punjab  &  Haryana.   The  issue  involved  in  these  appeals  is
identical which pertains to the interpretation that is  to  be  accorded  to
sub-section (10) of Section  11  of  Punjab  General  Sales  Tax  Act,  1948
(hereinafter referred to as the “Act”).  It is  for  this  reason  that  all
these appeals were heard together and can conveniently  be  disposed  of  by
one common judgment.  Since SLP (C) Nos. 21712-21717 of 2009  was  taken  as
the lead case, for understanding the nature of lis  that  is  involved,  the
factual narration can be addressed from the said appeal.
In these appeals, we are concerned with Assessment Years  2000-01,  2001-02,
2002-03 and  2003-04.  Obviously, assessment in respect of these  Assessment
Years was to be made under the said Act.  The assessee had  filed  quarterly
returns in respect of the aforesaid Assessment Years.  In terms  of  Section
11(3) of the Act, time-limit for completing the assessment provided  therein
is three years from the end of the year.  Accordingly, assessments  were  to
be made by 30th April, 2004 for the Assessment  Year  2000-01,  30th  April,
2005 for the Assessment Year 2001-02, 30th April, 2006  for  the  Assessment
Year 2002-03 and 30th April, 2007 for the Assessment Year  2003-04.   It  is
an admitted case that no assessment was made in  respect  of  any  of  these
Assessment Years by the aforesaid stipulated dates.
The Assessing Officer, however, sent notices to the respondent- assessee  in
Form ST-XIV for the aforesaid Assessment Years, i.e., after  the  expiry  of
three years.  The assessee took an objection that these  notices  were  sent
beyond the period of assessment and, therefore, it was not  permissible  for
the Assessing Officer to issue notice after the expiry of  three  years  and
carry on with the assessment proceedings.
We may point out that under Section 11(10) of the Act, the  Commissioner  is
empowered to extend the period of three  years  for  passing  the  order  of
assessment for such further period as he may deem fit,  after  recording  in
writing the reasons for extending  such  period.   When  the  objection  was
taken by the assessee that the notices were  time  barred,  the  Excise  and
Taxation Commissioner, Patiala passed orders dated August 17, 2007  granting
extension of time.  Reason given for extension of time was that the case  of
the assessee for the year 1999-2000 was  pending  with  the  Tribunal.  This
order of extension was challenged by the respondent along with the order  of
assessment  passed  by  the  Assessing  Officer.   The  Tribunal,   however,
dismissed the appeal of the assessee vide  its  orders  September  13,  2007
holding that since there  was  a  power  of  extension  conferred  upon  the
Commissioner under Section 11(10) of the Act, the  Commissioner  was  within
his powers to extend the period.  The contention of the  assessee  was  that
though there was a power of extension, such a power could be exercised  only
within the limitation prescribed.  In other words,  it  was  contended  that
when the normal period of limitation for passing  assessment  order  by  the
Assessing Officer was three years, as per Section  11(3)  of  the  Act,  the
power to extend the period could be exercised  within  the  said  period  of
three years and not after the expiry of limitation  period.   This  plea  of
the assessee was rejected by the Tribunal.
The assessee took up the matter further by filing appeals  before  the  High
Court.  Here, the assessee has succeeded  in  its  submission  as  the  High
Court of Punjab and Haryana vide impugned judgment dated September 26,  2008
has held that once the period  of  limitation  expires,  the  immunity  from
subjecting  itself  to  the  assessment  sets  in  and  the  right  to  make
assessment gets extinguished.  Therefore,  when  the  period  of  limitation
prescribed in the Act for passing the assessment order expires,  thereafter,
the Commissioner is debarred from exercising his  powers  under  sub-section
(10) of Section 11 of the Act and cannot extend  the  period  of  limitation
for the purposes of assessment. This order is assailed  by  the  Revenue  in
the instant appeals before us.
It would also be pertinent to note, at this stage, that  while  arriving  at
the aforesaid conclusion, the Punjab  and  Haryana  High  Court  has  placed
heavy reliance upon the view taken by a Division  Bench  of  Karnataka  High
Court  in  Bharat  Heavy  Electricals  Ltd.  v.  Assistant  Commissioner  of
Commercial  Taxes  (INT-I),  South  Zone,  Bangalore  and  others[1]   which
judgment of Karnataka High Court, in turn, refers to similar view  taken  by
Gujarat High Court in Javer Jivan Mehta v. Assistant Commissioner  of  Sales
Tax (Appeal)[2].   Thus,  three  High  Courts  have  taken  identical  view,
namely,  though power to extend time of three years for a further period  of
passing the assessment is there with the Commissioner, the same  has  to  be
exercised before the  expiry  of  normal  period  of  three  years  and  not
subsequent there to.
As the submissions of the parties on either side would be better  understood
once the relevant statutory provision is noted,  it  would  be  apposite  to
reproduce the provisions of Section 11 of the Act, which are as follows:
“11. Assessment of tax. -  (1)  If  the  Assessing  Authority  is  satisfied
without requiring the presence of dealer or the production  by  him  of  any
evidence that the returns furnished in respect of  any  period  are  correct
and complete, he shall pass an order of assessment  on  the  basis  of  such
returns within a period of three years from the  last  date  prescribed  for
furnished the last return in respect of such period.

(2) If the Assessing  Authority  is  not  satisfied  without  requiring  the
presence of dealer who furnished  the  returns  or  production  of  evidence
that the returns  furnished  in  respect  of  any  period  are  correct  and
complete, he shall serve on such dealer a notice in  the  prescribed  manner
requiring him, on a date and at place specified therein,  either  to  attend
in person or to produce or to cause to be produced  any  evidence  on  which
such dealer may rely in support of such returns.

(3)   On the day specified in the notice or as soon afterwards  as  may  be,
the Assessing Authority shall, after hearing such  evidence  as  the  dealer
may produce, and such other evidence as the Assessing Authority may  require
on specified points, [pass an order of assessment within a period  of  three
years from the last date  prescribed  for  furnishing  the  last  return  in
respect of nay period.]

(4)   If a dealer having furnished returns in respect of a period, fails  to
comply with the terms of notice issued under sub-section (2), the  Assessing
Authority shall,  [within  a  period  of  three  years  from  the  1st  date
prescribed for furnishing the last return in  respect of such  period,  pass
an order of assessment to the best of his judgment.]

(5)   If a dealer does not furnish returns in respect of any period  by  the
last date prescribed the assessing authority shall within a period  of  five
years from the last date prescribed for furnishing the return in respect  of
such period and after giving the dealer a reasonable  opportunity  of  being
heard, pass an order of assessment to the best of his judgment.

(6)   IF upon information which has come into his possession, the  Assessing
Authority is satisfied that any dealer has been  liable  to  pay  tax  under
this Act in respect of any period but has failed to apply for  registration,
the Assessing Authority shall, within five years after the  expiry  of  such
period, after giving the dealer a reasonable  opportunity  of  being  heard,
proceed to access, to the best of his judgment the amount of  tax,  if  any,
due from the dealer in respect of such period  and  all  subsequent  periods
and  in  case  where  such  dealer  has  willfully  failed  to   apply   for
registration, the Assessing Authority may direct that the dealer  shall  pay
by way of penalty, in addition to the amount so  assessed,  in  addition  to
the amount so assessed, a sum not  exceeding  one  and  a  half  times  that
amount.

(7)   The amount of any tax, penalty or interest  payavble  under  this  Act
shall be paid by the dealer in the manner prescribed, by such  date  as  may
be specified in the  notice  issued  by  the  Assessing  Authority  for  the
purpose and the date so specified shall not be less than  fifteen  days  and
not more than thirty days from the date of service of such notice:

Provided that the Assessing Authority may, with the prior  approval  of  the
Assistant Excise and Taxation Commissioner, Incharge of the District  extend
the date of  such  payment  or  allow  payment  by  instalments  against  an
adequate security or bank guarantee.

(8)   If the tax assessed under this Act or any instalment  thereof  is  not
paid b y any dealer within the time  specified  thereof  in  the  notice  of
assessment  or  in  the  order  permitting  payment  in  installments,   the
Commissioner or any other person appointed to assist him  under  s9b-section
(1) of Section 3 may, after giving  such  dealer  an  opportunity  of  being
heard, impose on him a penalty not exceeding in  amount  the  sum  due  from
him.

(9)   Any assessment made under this section shall be without  prejudice  to
any penalty imposed under this Act.

(10)  The Commissioner, may for reasons to be recorded in  writing,  extends
the period of three years, for passing the  order  of  assessment  for  such
further period as he may deem fit.

(11)  Where the proceedings of assessment are stayed  by  an  order  of  any
court, the period for which such stay remains  in  force,  shall  not  count
towards computing the period of three years  specified  under  this  section
for passing the order of assessment.

(12)  The assessing authority may on his own motion, review  any  assessment
order passed by him and such review shall be completed within  a  period  of
one year from the date of order under review.”
                                                         (emphasis supplied)


A mere reading of  the  aforesaid  provision  would  reflect  that  wherever
return is filed by the assessee, assessment is to be made  within  a  period
of three years from the last date prescribed for furnishing  the  return  in
respect of such period. On the other hand, in those cases  where  return  is
not filed or any dealer, who is liable to pay the tax under  the  Act,  does
not get himself registered therein, the period of assessment  prescribed  is
five years.  We are not concerned with the alternate  situation  as  in  the
instant appeals not only the assessees  are  registered  dealers,  they  had
also filed  their  returns  regularly  within  the  prescribed  period  and,
therefore, assessments were to be completed within a period of  three  years
from the last date prescribed for  furnishing  the  returns,  which  is  the
normal period prescribed.  At the same time, sub-section (10) of Section  11
gives power  to  the  Commissioner  to  extend  a  period  of  three  years.
Interestingly, there is no upper limit prescribed for which the  period  can
be extended, meaning thereby such an extension can be given,  theoretically,
for any  length  of  time.   This  discretion  is,  however,  controlled  by
obligating the Commissioner to give his  reasons  for  extension,  and  such
reasons are to be recorded in writing.  Obviously,  the  purpose  of  giving
reasons in writing is to ensure that the  power  to  extend  the  period  of
limitation is exercised for valid reasons based on  material  considerations
and that power is not abused by exercising it  without  any  application  of
mind, or mala  fide  or  on  irrelevant  considerations  or  for  extraneous
purposes. Such an  order  of  extension  of  time,  naturally,  is  open  to
judicial review, albeit within the confines of law on  the  basis  of  which
such judicial review is permissible.
Be that as it may, the question before us is as  to  whether  the  power  to
extend time is to be necessarily exercised before the normal expiry  of  the
said period of three years run out.
Mr. Ganguli, submitted that there is no such embargo or impediment  provided
in sub-section (10) of Section 11 mandating  the  Commissioner  to  pass  an
order of extension necessarily within the normal period of three  years.  He
submitted that the word used in the aforesaid provision 'extension' of  time
is in contradistinction  to  the  word  'deferment'  which  appears  in  the
Karnataka Legislation. On that basis, he argued that  it  was  inappropriate
on the part of the High Court to refer to and  rely  upon  the  judgment  of
Karnataka  High  Court  inasmuch  as  provision  of  law  contained  in  the
Karnataka Sales Tax Act is entirely different.  He  further  submitted  that
since in Punjab Legislation, the expression used  is  'extension  of  time',
the Court was required to construe the provision keeping in  mind  the  said
language.  Mr. Ganguli argued  that  a  reading  of  meaning  of  expression
'deferment' and 'extension' of time as contained in Black's  Law  Dictionary
will clearly bring out the difference.
“defer, vb. 1. To postpone; to delay <to defer taxes to another year>”
“deferment, n.  1.  The  act  of  delaying;  postponement  <deferment  of  a
judicial decision>”

                  It  was  submitted  that  the  expressions   'defer'   and
'deferment' as can be seen from the above definitions,  clearly  contemplate
postponement, which presupposes that the time  period  originally  fixed  is
not extinguished.  In other words, an action, which is  deferred,  (i.e.  an
action which is required to be completed within a specified time frame)  can
only be deferred of which the time so fixed has not expired.
                 It was submitted that, in contrast, Black's Law  Dictionary
defines the expression 'extension' as follows:
      “Extension, n. 3. Tax. A period of additional time to file an  income-
tax return beyond its due date.  4. A period of additional time to  take  an
action, make a decision, accept an offer, or complete a task”

                  It  was  argued  that  the  word  'extension  has'  varied
meanings, dependent on the context in which  it  is  used.   The  expression
'extension' in the context of surveillance orders, has been  interpreted  in
the following manner:
“Where surveillance pursuant to order issued  under  Title  III  of  Omnibus
Crime  Control  and  Safe  Streets  Act  is  of  same   premises,   involves
substantially same persons, and is part of same investigation, second  Title
III  surveillance  order  issued  after  expiration  of   first   order   is
'extension' of first  order  for  purposes  of  requirement  of  sealing  of
recordings, even if there is gap of time  in  between  expiration  of  first
order             and             entry             of              second.”
(Emphasis supplied)



Mr. Ganguli also referred to the concept of  extension  as  incorporated  in
Section 148 of the Code of  Civil  Procedure,  1908.   He  relied  upon  the
judgment of this Court in D.V. Paul v. Manisha  Lalwani[3].  This  Court  in
paragraph 26 of the said judgment held as under:
“26. Insofar as the first aspect  is  concerned  Section  148  CPC,  in  our
opinion, clearly reserves in favour of the court the power  to  enlarge  the
time required for doing an act prescribed or allowed by the  Code  of  Civil
Procedure.  Section 148 of the Code may at this stage be extracted.

“148.  Enlargement of time.— Where any period is fixed  or  granted  by  the
court for the doing of any act prescribed  or  allowed  by  this  Code,  the
court may, it its discretion, from time to time,  enlarge  such  period  not
exceeding thirty days in total, even though the period originally  fixed  or
granted may have expired.”

A plain reading of the above would show that when  any  period  or  time  is
granted by the court for doing any act, the court has  the  discretion  from
time to time to enlarge such period even if the  time  originally  fixed  or
granted by the court has expired.  It is evident from the language  employed
in the provision that the power given to  the  court  is  discretionary  and
intended to be exercised only to meet the ends of justice.”

Mr. Ganguli further submitted that even in the context of  taxation  law,  a
similar reasoning has been adopted by the Court in  Commissioner  of  Income
Tax, Jullundur v. Ajanta Electricals[4]. While interpreting  Section  139(2)
of the Income Tax Act, which empowered the Assessing  Officer  to  grant  an
extension of time for filing of the return of income,  upholding  the  power
of the Income Tax Officer to extend the time for filing of  the  Income  Tax
return by the  assessee  even  after  the  expiry  of  the  time  originally
granted, this Court held as follows:“
“9. In this context, the question whether a  belated  application  could  be
regarded as valid or not has to be considered. As  rightly  pointed  out  by
the Punjab and Haryana High Court while deciding these cases  under  Section
256(2) and by the Calcutta High Court in Sunderdas  Thackersay  &  Bros.(137
ITR 646), there are no words of limitation in Section 139(2) to  the  effect
that no application could be filed after the period allowed had expired.  As
we have stated earlier, it was a procedural provision. The limit  of  thirty
days was not intended to be final as discretion was  given  to  the  ITO  to
extend that date. The ITO could have  been  called  upon  to  exercise  that
discretion for proper reasons. No fetters were placed  upon  the  discretion
of the ITO as regards the number of times he could extend the  date  or  the
period  for  which  he  could  extend  it.  It  is  conceded  that  repeated
applications could be made within the time allowed, in  view  of  the  clear
indication to that effect in Form No. 6, by the use of  words  “it  has  not
been possible”. If it was intended that the  application  for  extension  of
time under Section 139(2) was to be made within the time allowed  originally
or within the extended time then the words “it has not been  possible”  were
not at all necessary and the words “it is  not  possible”  would  have  been
sufficient. Though the rule cannot affect,  control  or  derogate  from  the
section of the Act, so long as it does not have that effect, it  has  to  be
regarded as having the same force as the section  of  the  Act.  If  Section
139(2) is read along with Rule 13 and Form No. 6 it becomes  clear  that  an
application for extension could  be  made  even  after  the  period  allowed
originally or as a result of extension granted had expired. Keeping in  mind
the object of giving discretion to the ITO and the  consequences  that  were
to follow from not filing the return within time, we  see  no  justification
for  reading  into  the  section  any  limitation  to  the  effect  that  no
application could be made after the time allowed  had  expired.  We  see  no
good reason to construe the section so narrowly.”
                                                         (emphasis supplied)

                 In that judgment,  applying  the  principles  contained  in
Section 148, CPC, it was remarked as under:
“10. We cannot accept the contention raised on behalf of  the  Revenue  that
the word ‘extend’ in the proviso to Section 139(2) implies that at the  time
of making the application the time allowed should not have  expired.  Though
the Civil Procedure Code by itself does not apply to the  proceedings  under
the Income Tax Act, we see no reason why a principle  of  procedure  evolved
for doing justice to a party to the proceeding cannot be called  in  aid  to
while interpreting a procedural provision contained in the Act. Section  148
of the Code provides that where any period is fixed or granted by the  court
for the doing of any act prescribed or allowed by the Code, the  court  may,
in its discretion, from time to time, enlarge such period, even  though  the
period originally fixed or granted may have expired. Various situations  can
be envisaged where a party to the proceeding is prevented  by  circumstances
beyond his control from doing the required act within the fixed period.  The
assessee may be able to point out that because of  a  sudden  death  in  the
family or because of his sudden illness of a serious nature  or  because  he
had to leave for an outside place all of a sudden or because  he  could  not
return from outside in  spite  of  his  best  efforts,  or  for  other  good
reasons, as the case may be, he was not  able  to  file  the  return  within
time............”
                                   [Emphasis supplied]


Mr. Ganguli also drew sustenance from the Arbitration Act, 1940  which  gave
power to the Court to extend time.  It was submitted  that  this  Court  has
held  in  the  matter  of  Hindustan  Steelworks  Construction  Ltd.  v.  C.
Rajasekhar Rao[5] that the Court has got  the  power  to  extend  time  even
after the award has been given or after the expiry of the period  prescribed
from the award.
Mr. Ganguli re-emphasised that reliance upon the decision  of  Gujarat  High
Court in the impugned judgment was untenable as the provisions of  Karnataka
Sales Tax Act are  totally  different  inasmuch  as  Section  12(6)  of  the
Karnataka Act  provided  only  'deferment'.   He  submitted  that  even  the
judgment  of  Gujarat  High  Court  in   Javer   Jivan   Mehta2   case   was
distinguishable since that was also a case of exclusion of a period and  the
issue therein was the computation of period of limitation.
The aforesaid contentions were refuted by the learned counsel  who  appeared
for assessees in these appeals.  It was submitted that sub-section  (10)  of
Section 11 states, in no uncertain term, that the assessment order is to  be
passed 'within a period of three years......'. It was  emphasised  that  the
word 'within' was of significance.  It was pointed out that before the  year
1998, no period of limitation was prescribed and such a  provision  came  to
be inserted by way of amendment vide Act No. 12  of  1998  dated  April  20,
1998 .  It was further argued that sub-section (10) of Section 11  obligates
the Commissioner to record reasons in writing while  extending  the  period.
It was submitted that this requirement of recording of reasons came  up  for
consideration before Punjab  &  Haryana  High  Court  and  in  a  series  of
judgments, it is held that such an order of extension of time can be  passed
only after giving an opportunity of hearing to the  assessee.   The  learned
counsel referred to the following judgments of the High Court:
(i)   State of Punjab, Through Assistant Excise and  Taxation  Commissioner,
Bathinda v. M/s. Olam Agro India Ltd. (formerly  Olam  Export  India  Ltd.);
decided by the Punjab & Haryana High Court on August 20, 2013.

      (ii)  State of Punjab v. M/s.  Olam  Agro  India  Ltd.;  Daily  Order;
Dismissed by the Supreme Court vide Oder dated May 08, 2015.

      (iii) A.B. Sugars Limited v. The State of Punjab and  others;  Decided
by the Punjab & Haryana High Court on September 01, 2009.

It was also  argued  that  conceptually  there  was  no  difference  between
'deferment' and 'extension' insofar as it  related  to  the  issue  at  hand
which is concerned with the point  of  time  at  which  Commissioner  is  to
exercise his powers.  For that, the reasons given by  Karnataka  High  Court
as well as Gujarat High Court holding that such a  power  gets  extinguished
with the expiry of normal period of limitation  prescribed  and,  therefore,
cannot be exercised after the limitation period were  germane  and  relevant
while construing the provisions of sub-section (10) of  Section  11  of  the
Act as well and, therefore, those cases were  rightly  relied  upon  by  the
High Court in the impugned judgment.
In rejoinder, Mr. Ganguli refuted the aforesaid submissions of  the  learned
counsel for the assessees.  The arguments  advanced  by  him  was  that  the
submission  of  the  assessees  that  the  Commissioner  has  to  afford  an
opportunity of  hearing  to  the  dealer  before  extending  the  period  of
limitation does not arise in the present case as  this  was  not  the  issue
raised in the Courts below.  He argued that the question to  be  decided  in
these appeals was as to whether the power under sub-section (10) of  Section
11 of the Act could be exercised on the expiry of the period of three  years
and this question is not answered  in  the  judgments  referred  to  by  the
opposite party.  He further submitted that it is a question of  fact  to  be
decided in each case as to whether assessee was entitled to such a right  of
hearing and, therefore, this issue could not be taken up for the first  time
in these appeals.
We have bestowed our serious considerations to the submissions made  by  the
counsel who argued the matter.
We may say at the outset that  though  provisions  of  the  Punjab  Act  are
couched in different  language  from  Karnataka  Act  or  Gujarat  Act,  the
essence of these provisions is same.  As noticed above,  insofar  as  scheme
of Punjab Act is concerned, the assessment order is to  be  normally  passed
within a period of three years.  At the same time, power  is  given  to  the
Commissioner under Section 11(10) of the Act to extend the  said  period  of
three years.  Once such an extension is given,  the  order  is  passed  even
beyond the period of three years.  Significantly, no upper  limit  is  fixed
while giving such extension which means that the power can be exercised  for
extending the period  for  any  length  of  time,  subject  however  to  the
condition that the Commissioner is bound to record  the  reasons  justifying
such an extension.  Obviously, when the Commissioner passes  such  an  order
and give reasons, not only he would have to justify his action of  extending
time but also the period by which the time is extended.   In  the  Karnataka
Legislation, the power is of 'deferment'.  In that Legislation as well,  the
Assessment Order is to be passed within three years as  sub-section  (5)  of
Section 12 of Karnataka Sales Tax Act stipulates that  no  assessment  shall
be made after a period of three years from the  date  on  which  the  return
under sub-section (1) of that order is submitted by a dealer subject to  two
provisos mentioned therein.  Sub-section (6) of Section 12  mentions  as  to
how the period of limitation is to be computed and reads as under:
“(6)  In computing the  period  of  limitation  for  assessment  under  this
Section,-

(a)  the time during which the proceedings for assessment in  question  have
been deferred on account of any stay order  granted  by  any  Court  or  any
other authority shall be excluded;

(b)  the time during which the assessment has been deferred in any  case  or
class of cases by the Joint Commissioner  for  reasons  to  be  recorded  in
writing shall be excluded.”


Clause  (b)  of  sub-section  (6)  indicates  that  Joint  Commissioner,  in
appropriate cases, may pass an order for deferment of  Assessment  Order  to
be passed by the Assessing Authority and once such an order is passed,  that
period has not to be counted  while  computing  the  period  of  limitation.
Significantly, this  provision  also  mandates  the  Joint  Commissioner  to
record  reasons  for  deferring  the  orders  of  assessment.   In  essence,
therefore, the purport and objective behind the provisions in Punjab Act  as
well as in  Karnataka  Act  remains  the  same.   By  making  any  order  of
deferment under sub-section (6) of Section 12 of Karnataka  Sales  Tax  Act,
the Joint Commissioner is, in fact, achieving the same purpose  of  granting
more time to the Assessing Officer to pass the Assessment  Order.   Same  is
the purpose behind sub-section (11) of Section 10  of  the  Punjab  Act.  In
view thereof, it may not be appropriate to go into the  nuanced  distinction
between  “deferment”  and  “extension”  as  per  the  definitions  contained
Black's Law Dictionary in the given situation, which is dealt  with  in  the
instant appeals.

Even otherwise, it is important to understand the ratio  laid  down  in  the
judgment of Karnataka High Court in Bharat Heavy Electricals  Ltd.  (supra).
The issue in the said case  before  the  Karnataka  High  Court  was  as  to
whether the power to pass a deferment order is to be  exercised  even  after
the expiry of the period of limitation which was answered in  the  negative.
The reasons given in support of this conclusion are as follows:
“...Deferment of assessment has  the  effect  of  enlarging  the  period  of
limitation which  did  not  expire  by  the  time  the  deferment  order  is
contemplated to be passed.  When once the period of limitation expires,  the
immunity against being subject to assessment sets in and the right  to  make
assessment gets extinguished.   Resort  to  deferment  provisions  does  not
retrieve the situation.  There is no question of deferring assessment  which
has already become time-barred.  The provision  for  exclusion  of  time  in
computing the period of limitation of deferment of assessment  is  meant  to
prevent further running of time against the Revenue if  the  limitation  had
not expired.”
                                                         (emphasis supplied)

It was also observed that  upon  the  lapse  of  the  period  of  limitation
prescribed,  the  right  of  the  Department  to  assess  an  assessee  gets
extinguished and this  extension  confers  a  very  valuable  right  on  the
assessee.
If one is to go by the aforesaid dicta, with which we  entirely  agree,  the
same shall apply in the instant cases  as  well.   In  the  context  of  the
Punjab Act, it can be said that extension of time  for  assessment  has  the
effect of enlarging the  period  of  limitation  and,  therefore,  once  the
period  of  limitation  expires,  the  immunity  against  being  subject  to
assessment sets in and the  right  to  make  assessment  gets  extinguished.
Therefore, there would be no question of extending the time  for  assessment
when the assessment has already become time barred.  A  valuable  right  has
also accrued in favour  of  the  assessee  when  the  period  of  limitation
expires.  If the Commissioner is  permitted  to  grant  the  extension  even
after the expiry of original period of limitation prescribed under the  Act,
it will give him right to exercise such a power at any time even much  after
the last date of assessment.  In the instant appeals itself, when  the  last
dates of assessment were 30th April, 2004, 30th  April,  2005,  30th  April,
2006 and 30th April, 2007, order extending the time under Section 11(10)  of
the Act were passed on August 17, 2007, August 17,  2007,  August  17,  2007
and May 25, 2007 respectively.  Thus, for  the  Assessment  Year  2000-2001,
order of extension is passed more than three years after the last  date  and
for the Assessment Year 2001-2002, it is more than two years after the  last
date.  Such a situation cannot be countenanced as rightly held by  the  High
Court.  When the last date of assessment  in  respect  of  these  Assessment
Years expired, it vested a valuable right in the assessee  which  cannot  be
lightly taken away.  As a consequence, sub-section (11) of  Section  10  has
to be interpreted in the manner which is  equitable  to  both  the  parties.
Therefore, the only way to interpret the same is that by holding that  power
to extend  the  time  is  to  be  exercised  before  the  normal  period  of
assessment expires. On the aforesaid interpretation, other arguments of  Mr.
Ganguli lose all significance.  Argument of learned senior counsel  for  the
appellants based on Section 148 of the  CPC  would  be  of  no  consequence.
This Section categorically states that power to enlarge the  period  can  be
exercised  even  when  period  originally  fixed  has  expired.    Likewise,
reliance upon Section 139(2) of the Income Tax Act  is  misconceived.   That
provision is made for  the  benefit  of  the  assessee  which  empowers  the
Assessing Officer to grant an extension of time for filing of the return  of
income and, therefore, obviously will have no bearing on the issue at  hand.
 Moreover, this Court  in  Ajantha  Electricals's  case  (supra),  which  is
relied upon by the learned counsel for the appellant,  held  that  the  time
can be extended even after the time allowed originally has  expired  on  the
interpretation of the words “it has not been possible” occurring in  Section
133(2) of the Act.  The Court, thus, opined that  the  aforesaid  expression
would  mean  that  the  time  can  be  extended  even  after  original  time
prescribed in the said provision has expired.  Same is  our  answer  to  the
argument of Mr. Ganguli predicated on Section 28  of  the  Arbitration  Act,
1940 as that provision was in altogether different context.
We, thus, do not find any error in the  impugned  judgments  of  Punjab  and
Haryana High  Court  and  as  a  consequence,  dismiss  all  these  appeals.
Parties are, however, left to bear their own cost.

                           .............................................CJI.
                                                               (T.S. THAKUR)



                          ................................................J.
                                                                (A.K. SIKRI)



                          ................................................J.
                                                              (R. BANUMATHI)


NEW DELHI;
MARCH 04, 2016.
-----------------------
[1]   (2006) 143 STC 10
[2]   (1998) 111 STC 199
[3]   (2010) 8 SCC 546
[4]   (!994) 5 SCC 182
[5]   (1987) 4 SCC 93

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