Delhi High Court
Kumagai Skanska Hcc Itochu Group vs The Commissioner Of Value Added ... on 2 May, 2014
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 02.05.2014
+ REVIEW PET. 420/2012 in W.P.(C) 974 /2010
KUMAGAI SKANSKA HCC ITOCHU GROUP ..... Petitioner
versus
THE COMMISSIONER OF VALUE ADDED
TAX & ANR. .... Respondents
Advocates who appeared in this case:
For the Appellant : Mr Rajesh Jain, Ms Neetika Khanna and Mr Sumit Batra
For the Respondent : Mrs Avnish Ahlawat and Mr Nitesh Kumar Singh
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K. JAIN
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. We have heard the learned counsel for the parties at great length.
Review of our judgment dated 22.05.2012 has been sought by the
respondents / review petitioners. By virtue of our said judgment, we had
taken the view that a revision under the Delhi Value Added Tax Act,
2004 initiated after 01.04.2005 would have to be governed by the period
of limitation of four years prescribed in Section 74A(2)(b) of the DVAT
Act, 2004. We had repelled the contention of the respondents that it
would be the period of five years prescribed under Section 46 of the
Delhi Sales Tax Act, 1975, (hereinafter referred to as the 1975 Act)
which would apply. We had given several reasons as to why we had
come to the said conclusion.
2. However, we note that in our said judgment dated 22.05.2012 the
provisions of Section 106 which we had quoted and considered only
pertained to sub sections (1), (2) and (3). It has now been brought to our
notice that sub section (4) has been added to Section 106 of the DVAT
Act, 2004 by virtue of the Delhi Value Added Tax (Amendment) Act,
2012 which was passed by the Legislative Assembly of the National
Capital Territory of Delhi on 12.01.2012 and notified on 13.02.2012.
Furthermore, the said amendment to Section 106 was brought about with
retrospective from the 1st day of April, 2005. In other words, sub-section
(4) of Section 106 which was introduced by the said Amendment Act
would be applicable from the very inception of the DVAT Act, 2004, that
is, from 01.04.2005. The entire Section 106 including the newly added
sub-section (4) reads as under:-
"106 Repeal and savings
(1) The Delhi Sales Tax Act, 1975 (Act 43 of
1975), the Delhi Tax on Entry of Motor Vehicles
into Local Areas Act, 1994 (Delhi Act 4 of 1995),
the Delhi Sales Tax on Works Contract Act, 1999
(Delhi Act 9 of 1999), and the Delhi Sales Tax on
Right to Use Goods Act, 2002 (Delhi Act 13 of
2002) as in force in Delhi (referred to in this
section as the "said Acts"), are hereby repealed.
(2) Notwithstanding sub-section (1) of this
section, such repeal shall not affect the previous
operation of the said Acts or any right, title,
entitlement, obligation or liability already acquired,
accrued or incurred thereunder.
(3) For the purposes of sub-section (2) of this
section, anything done or any action taken
including any appointment, notification, notice,
order, rule, form or certificate in the exercise of
any powers conferred by or under the said Acts
shall be deemed to have been done or taken in the
exercise of the powers conferred by or under this
Act, as if this Act were in force on the date on
which such thing was done or action was taken,
and all arrears of tax and other amounts due at the
commencement of this Act may be recovered as if
they had accrued under this Act.
(4) Notwithstanding anything contained in this
Act, for the purpose of the levy, assessment,
deemed assessment, re-assessment, appeal,
revision, review, rectification, reference,
registration, collection, refund or input or credit of
input tax of allowing benefit of exemption or
deferment of tax, imposition of any penalty or of
interest or forfeiture of any sum, which relates to
any period ending before 1st day of April, 2005 or
for any other purpose whatsoever connected with
or incidental to any of the purposes aforesaid and
whether or not the tax, penalty, interest or sum
forfeited, if any, in relation to such proceedings, is
paid before, on or after 1st day of April, 2005, the
repealed Act and all rules, regulations, orders,
notifications, forms and notices issued thereunder
and in force immediately before 1st day of April,
2005 shall continue to have effect as if this Act has
not been passed."
(underlining added)
3. On a plain reading of sub-section (4) of Section 106 of the DVAT
Act, 2004, insofar as it applies to a case of revision, it would be evident
that notwithstanding the repeal of the 1975 Act, for the purposes of a
revision which relates to any period ending before the 1 st day of April,
2005 or for any other purpose connected with or incidental to such
revision, the repealed Act, (i.e., the 1975 Act) would continue to have
effect as if the DVAT Act, 2004 had not been passed. It is absolutely
clear that the entire provision of revision as contemplated under Section
46 of the 1975 Act including the period of limitation prescribed therein
would be applicable to such revisions notwithstanding the repeal of the
said Act by the DVAT Act, 2004.
4. This had not been noticed by us in the judgment dated 22.05.2012.
Consequently, we recall the said decision. The learned counsel for the
petitioner, however, submits that apart from limitation they had also
challenged the issuance of the show cause notice dated 02.02.2010 on
other grounds. Since we had not examined those other grounds in view
of our conclusion on limitation, we feel that it would be appropriate that
the matter be now placed before the roster Bench for a decision on those
matters.
5. We may also put on record that the learned counsel for the
petitioner had placed reliance on the decision of a Division Bench of the
Gujarat High Court in Ravi Electronics v. Assistant Commercial Tax
Commissioner: (2013) 63 VST 414 (Guj). However, we are of the view
that the said decision of the Gujarat High Court may have applied in the
absence of a provision like Section 106(4) of the DVAT Act, 2004 but, it
certainly would not have application when sub-section (4) of Section 106
clearly points in a different direction. The learned counsel for the
petitioner had also submitted that unless the prescription with regard to
limitation is specifically saved, the limitation prescribed in the repealing
Act would apply. We also do not agree with this submission in view of
the clear and unequivocal terms of sub-section (4) of Section 106 which
specifically deals with purposes connected with and / or incidental to
revision which, in our view, would also include the prescription with
regard to limitation. The learned counsel for the petitioner had also
referred to a judgment of the Supreme Court in the case of Thirumalai
Chemicals Ltd v. Union of India : 2011 (268) ELT 296 (SC). In our
view that decision would also not come to the aid of the petitioner.
6. As pointed out above, the judgement dated 22.05.2012 is recalled.
The matter be placed before the roster Bench on 19.05.2014 in the first
instance for a decision on the other grounds taken by the petitioner. The
stay which was operating till the decision dated 22.05.2012 shall continue
to operate till the disposal of the writ petition.
BADAR DURREZ AHMED, J
V.K. JAIN, J
MAY 02, 2014
SU
