corporate law - Sec.40 Haryana General sales Tax - whether the exercise of revisional power under Section 40 of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as ‘the Act of 1973’) after its repeal on 1.4.2003, 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. = 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 Since there were no proceedings pending against the respondent under the repealed Act, on the relevant date, the proceedings thereunder could not be sustained or justified by reference to Section 4 of the Punjab General Clauses Act, 1898.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 10792-10794 OF 2011
THE STATE OF HARYANA AND OTHERS ….APPELLANT(S)
VERSUS
HINDUSTAN CONSTRUCTION
COMPANY LTD. ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(s).10795 OF 2011
CIVIL APPEAL NO(s).10808 OF 2011
CIVIL APPEAL NO(s).10805 OF 2011
CIVIL APPEAL NO(s).10807 OF 2011
CIVIL APPEAL NO(s).10804 OF 2011
CIVIL APPEAL NO(s).10796 OF 2011
CIVIL APPEAL NO(s).10801-10802 OF 2011
CIVIL APPEAL NO(s).10815-10816 OF 2011
CIVIL APPEAL NO(s).10806 OF 2011
CIVIL APPEAL NO(s).10810 OF 2011
CIVIL APPEAL NO(s).10803 OF 2011
CIVIL APPEAL NO(s).10799 OF 2011
CIVIL APPEAL NO(s).10812 OF 2011
CIVIL APPEAL NO(s).10798 OF 2011
CIVIL APPEAL NO(s).10797 OF 2011
CIVIL APPEAL NO(s).10800 OF 2011
CIVIL APPEAL NO(s).10820 OF 2011
CIVIL APPEAL NO(s).10811 OF 2011
CIVIL APPEAL NO(s).10813 OF 2011
CIVIL APPEAL NO(s).10814 OF 2011
CIVIL APPEAL NO(s).10809 OF 2011
CIVIL APPEAL NO(s).10817-10818 OF 2011
CIVIL APPEAL NO(s).10824 OF 2011
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CIVIL APPEAL NO(s).10830 OF 2011
CIVIL APPEAL NO(s).10829 OF 2011
CIVIL APPEAL NO(s).10828 OF 2011
CIVIL APPEAL NO(s).10826-10827 OF 2011
CIVIL APPEAL NO(s).10825 OF 2011
CIVIL APPEAL NO(s).10821-10823 OF 2011
CIVIL APPEAL NO(s).10831 OF 2011
CIVIL APPEAL NO(s).10837 OF 2011
CIVIL APPEAL NO(s).10833 OF 2011
CIVIL APPEAL NO(s).10832 OF 2011
CIVIL APPEAL NO(s).10834-10835 OF 2011
CIVIL APPEAL NO(s).10840-10841 OF 2011
CIVIL APPEAL NO(s).10838-10839 OF 2011
JUDGMENT
NAVIN SINHA, J.
The common question of law arising for 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 referred to as ‘the Act of 1973’) after its
repeal on 1.4.2003, 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.10792-10794 of 2011. The sales tax
assessment of the respondent, for the assessment year
1998-99, 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
notice was issued to the respondent on 07.06.2004 regarding
the refund ordered earlier, in exercise of suo-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 having been challenged by the
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
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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 of Haryana, submitted that the refund having
been wrongly obtained, resort to suo-moto revision under
Section 40 of the Act of 1973, 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. and Anr. vs.
State of Chhattisgarh & Ors., (2007) 3 SCC 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
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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. Munshi, Deputy Commissioner of Sales Tax,
Bombay, 1968 (2) SCR 492, and Gammon India Ltd. vs.
Special Chief Secretary and Ors., (2006) 3 SCC 354, in
support 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,
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1898, 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.
7. At the outset, it is appropriate to set out the unamended
and amended provisions of Section 61 of the Act of 2003 to
facilitate better appreciation of issues.
Section 61 of 2003 Act
(Before Amendment)
Section 61 of 2003 Act
(After Amendment)
(1) The Haryana General Sales Tax
Act, 1973 (20 of 1973), is hereby
repealed :
“(1) The Haryana General Sales Tax
Act, 1973 (20 of 1973), is hereby
repealed.
Provided that such repeal shall
not-
(a) affect the previous operation
of the Act so repealed or anything
duly done or suffered thereunder;
or
(b) affect any right, title,
privilege, obligation or liability
acquired, accrued or incurred
under the said Act; or
(c) affect any act done or any
action taken (including any
appointment, notification,
notice, order, rule, form
regulation, certificate) in the
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exercise of any power conferred
by or under the said Act,
and any such act done or any
action taken in the exercise of
the powers conferred by or under
the said Act shall be deemed to
have been done or taken in the
exercise of the powers conferred
by or under the said Act as if this
Act were in force on the date on
which such act was done or
action taken; and all arrears of
tax and other amount due at the
commencement of this Act may
be recovered as if the same had
accrued under this Act.”
(2) Notwithstanding anything
contained in sub-section (1), -
(a) any application, appeal,
revision or other proceedings made
or preferred to any authority under
the said Act, and pending at the
commencement of this Act, shall,
after such commencement, be
transferred to and disposed of by
the officer or authority who would
have had jurisdiction to entertain
such application, appeal, revision
or other proceedings under this Act
as if it had been in force on the
date on which such application,
appeal, revision or other
proceedings were made or
preferred;
(2) Notwithstanding anything
contained in sub-section (1), -
[(a) any application, appeal, revision
or other proceedings made or
preferred to any officer or authority
under the said Act and pending at
the commencement of this Act,
shall, after such commencement, be
transferred to and disposed of by
the officer or authority who would
have had jurisdiction to entertain
such application, appeal, revision or
other proceedings under this Act as
if the said Act had been in force on
the date on which such application,
appeal, revision or other
proceedings were made or preferred.
Notwithstanding anything to the
contrary contained in any
judgment, decree or order of any
court or other authority, where
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no review, revision or corrective
action could be initiated or
finalized in respect of any
assessment, order, proceeding
under the said Act prior to or
after 1st April, 2003, because of
judgment or decree of any court
or Tribunal and the said
assessment or order passed under
the said Act had attained finality,
the limitation of five years as
specified under Section 40 of the
said Act shall be deemed to be
eight years;”
8. We have considered the respective submissions. A
simple repeal of an Act leaves no room for expression of a
contrary opinion. However, if the 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 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
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manifests a different intention, the application of the General
Clauses Act will stand excluded.
9. 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 suo-moto revisional power under
Section 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 pending proceedings under the repealed Act. The
intendment clearly was that matters which stood closed under
the Act of 1973 had to be given a quietus and could not be
reopened.
10. 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, saving only
pending proceedings. Section 4 of the Punjab General Clauses
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Act, 1858 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 issues arising for
consideration would have been entirely different. The
observations in State of Punjab vs. Mohar Singh Pratap
Singh, (1955) 1 SCR 893, as extracted below are considered
relevant:-
“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 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
expressly keeps alive old rights and liabilities but
whether it manifests an intention to destroy
them…..”
The observations in Gammon India Ltd. (supra) at paragraph
73 are to the same effect.
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11. 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, 1858 would render the
amendment redundant, and an exercise in futility, something
which the legislature never intended to do. Such an
incongruous interpretation leading to absurdity has to be
avoided.
12. In Civil Appeal 10840-10841 of 2011, an additional
ground has been urged that the power of review under 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 of review 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 Court calls
for no interference.
14. The appeals, for reasons discussed, lack merit and are
dismissed.
………………………………….J.
(Ranjan Gogoi)
.……….………………………..J.
(Navin Sinha)
New Delhi,
September 15, 2017
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