THE STATE OF HARYANAAND OTHERS v. HINDUSTAN CONSTRUCTION COMPANY LTD.

The Judgment of the Court was delivered by NAVIN SINHA, J. I. The common question of law arising for E consideration in this batch ofappeals 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. F

2Copy pinpoint2. 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 I998-99, 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 Subsequently, the former Act was repealed by the Act of 2003 on 01.04.2003.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 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/-.

3Copy pinpoint3. The order for recovery hf!ving been challenged by the respondent before the High Court, it was held that resort to Section 40

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CONSTRUCTION COMPANY LTD. [NAVIN SINHA, J.]

of the Act of 1973, after coming into force of the new Act on 01.04.2003 A 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 Since there were no proceedings pending against the respondent under the repealed Act, on the relevant date, the proceedings thereunder could not be sustained or justified by reference to Section 4 of the Punjab General B Clauses Act, 1898.

4Copy pinpoint4. 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clearly fell within the meaning of the expression privilege, obligation C or liability acquired or incurred under the repealed Act, and was therefore saved by Section 4 of the Punjab General Clauses Act, 1898.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 D· 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 E assessment was otherwise then in accordance with law, the power of the revisional authority cannot be restricted in revenue and fiscal matters.

5Copy pinpoint5. 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., F (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.

6Copy pinpoint6. Sh. P.H. Parekh, learned Senior Counsel appearing on behalf of the respondent, urged that the impugned order called for no G 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. . H

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7Copy pinpoint7. At the outset, it is appropriate to set out the unamended and amended provisions of Section 61 of the Act of200Jto facilitate better appreciation of issues. Section 61 of2003 Act Section 61 of2003 Act (Before Amendment) (After Amendment) (I) The Haryana General Sales Tax "(I) The Haryana General Sales Tax B Act, 1973 (20 of 1973), is hereby Act, 1973 {20 of l973), is hereby repealed: repealed.

Provided that such repeal shall not-

(a) affect the previous operation of c 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 D Act; or

(c) affect any act done or any action taken (including any appointment, notification, notice, order, rule, form regulation, certifil'llte) in the 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 arre-.irs of tax and other amount due at the commencement of this Act may be recovered as if the same had accrued under this Act." H

THE STATE OF HARYANA AND OTHERS y. HINDUSTAN 487 CONSTRUCTION COMPANY LTD. [NAVIN SINHA, J.]

(2) Notwithstanding anything (2) Notwithstanding anything contained in sub-section ( 1), - contained in sub-section ( 1), "

(a) any application, appeal, [(a) any application, appeal, revision or other proceedings made revision or other proceedings or preferred to any authority under made or preferred to any officer the said Act, and pending at the or authority under the said commencement of this Act, shall, Act and pending at the after such commencement, be commencement of this Act, shall, transferred to and disposed of by after such commencement, be the officer or authority who would transferred to and disposed of by have had jurisdiction to entertain the officer or authority who c such application; appeal, revision would have had jurisdiction to or other proceedings under this Act entertain such application, appeal, as if it had been in force on the revision or other proceedings date on which such application, under this Act as if the said Act appeal, rev1s1on or other had been in force on the date on proceedings were made or which such application, appeal, preferred; 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 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 1'1 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;" . H

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8Copy pinpoint8. 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.

9Copy pinpoint9. There were no proceedings pending against the respondent c undertheAct of l973 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 ofthe 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 ofPu11jah vs. Mohar Si11gli Pratap Singll, (1955) l 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 H

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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. ·

11Copy pinpoint11. 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 D 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.

13Copy pinpoint13. 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. E

14Copy pinpoint14. The appeals, for reasons discussed, lack merit and are · dismissed. · · .·

Dcvika Gujral Appeals dismisst'd.