Delhi High Court
Calcom Electronics Ltd vs The Commissioner Vat The Trade And Tax … on 6 November, 2024
Author: Yashwant Varma
Bench: Yashwant Varma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order reserved on: 14 October, 2024
Order pronounced on: 06 November, 2024
+ ST.APPL. 3/2023
CALCOM ELECTRONICS LTD .....Petitioner
Through: Mr. Santanu Kanengo, Mr.
Rajeev Bansal and Ms. Sayartani
Kanugo, Advocates with Mr.
Pramod, representative of
petitioner.
versus
THE COMMISSIONER VAT THE TRADE
AND TAX DEPARTMENT .....Respondent
Through: Mr. Rajeev Aggarwal, ASC with
Mr. Shubham Goel, Advocate.
+ ST.APPL. 4/2023
CALCOM ELECTRONICS LTD .....Petitioner
Through: Mr. Santanu Kanengo, Mr.
Rajeev Bansal and Ms. Sayartani
Kanugo, Advocates with Mr.
Pramod, representative of
petitioner.
versus
THE COMMISSIONER OF VAT THE TRADE AND TAX
DEPARTMENT .....Respondent
Through: Mr. Rajeev Aggarwal, ASC with
Mr. Shubham Goel, Advocate.
+ ST.APPL. 5/2023
M/S CALCOM ELECTRONICS LTD. .....Petitioner
Through: Mr. Santanu Kanengo, Mr.
Rajeev Bansal and Ms. Sayartani
Kanugo, Advocates with Mr.
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By:KAMLESH KUMAR
Signing Date:06.11.2024
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Pramod, representative of
petitioner.
versus
THE COMMISSIONER, VAT .....Respondent
Through: Mr. Rajeev Aggarwal, ASC with
Mr. Shubham Goel, Advocate.
+ ST.APPL. 6/2023
CALCOM VISION LTD .....Petitioner
Through: Mr. Santanu Kanengo, Mr.
Rajeev Bansal and Ms. Sayartani
Kanugo, Advocates with Mr.
Pramod, representative of
petitioner.
versus
THE COMMISSIONER, VAT .....Respondent
Through: Mr. Rajeev Aggarwal, ASC with
Mr. Shubham Goel, Advocate.
+ ST.APPL. 7/2023
M/S CALCOM ELECTRONICS LTD. .....Petitioner
Through: Mr. Santanu Kanengo, Mr.
Rajeev Bansal and Ms. Sayartani
Kanugo, Advocates with Mr.
Pramod, representative of
petitioner.
versus
THE COMMISSIONER, VAT .....Respondent
Through: Mr. Rajeev Aggarwal, ASC with
Mr. Shubham Goel, Advocate.
+ ST.APPL. 1/2024
BHARAT PETROLEUM CORPORATION
LIMITED .....Petitioner
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By:KAMLESH KUMAR
Signing Date:06.11.2024
15:52:10
Through: Mr. V. Sridharan, Senior
Advocate with Mr. Ashok K.
Bhardwaj and Mr. Manish
Kumar Hirani, Advocates.
versus
STATE OF NCT OF DELHI & ORS. .....Respondents
Through: Mr. Rajeev Aggarwal, ASC with
Mr. Shubham Goel, Advocate.
+ ST.APPL. 2/2024
BHARAT PETROLEUM CORPORATION
LIMITED .....Petitioner
Through: Mr. V. Sridharan, Senior
Advocate with Mr. Ashok K.
Bhardwaj and Mr. Manish
Kumar Hirani, Advocates.
versus
STATE OF NCT OF DELHI & ORS. ....Respondents
Through: Mr. Rajeev Aggarwal, ASC with
Mr. Shubham Goel, Advocate.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
ORDER
YASHWANT VARMA, J.
1. In this batch of appeals, the respondents take a preliminary
objection with respect to maintainability, asserting that the appeals
would have to follow the procedure as contemplated under Section 45
of the Delhi Sales Tax Act, 19751, a statute which now stands repealed
by virtue of the Delhi Value Added Tax Act, 20042 and which came to
1
DST Act
2
DVAT Act
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be promulgated on 01 April 2005. Mr. Aggarwal, learned counsel
appearing for the respondents, would contend that in light of the
provisions enshrined in Section 106 of the DVAT Act, the appellants
would have been legally obliged to approach the Appellate Tribunal for
drawing up a „statement of case’ for the consideration of this Court and
that the appeals which have come to be directly instituted would not be
maintainable. According to learned counsel, while the issue of
maintainability of the instant appeals and identical questions would
appear to have been ostensibly considered and answered in favour of
the appellants, those judgments are clearly distinguishable since none
of them have engaged with the provisions which came to be introduced
in Section 106 by virtue of the DVAT (Amendment) Act, 20123 and
which saw sub-section (4) coming to be incorporated therein, with
retrospective effect from 01 April 2005. According to Mr. Aggarwal,
since these appeals pertain to a tax period prior to 01 April 2005, it is
the stipulated procedure enshrined in Section 45 of the DST Act which
would consequently apply and be liable to be adhered to.
2. For the purposes of appreciating the preliminary objection which
stands raised, we deem it apposite to extract Section 45 of the DST Act
and which read as follows:
“45. Statement of case to the High Court.– (1) Within sixty days
from the date of an order passed by the Appellate Tribunal under
sub-section (6) of section 43, the dealer or the Commissioner may,
by application in writing, and accompanied, where the application is
made by a dealer, by a fee of fifty rupees, require the Appellate
Tribunal to refer to the High Court any question of law arising out of
such order, and, subject to the other provisions contained in this
section, the Appellate Tribunal shall, within one hundred and twenty
days of the receipt of such application, draw up a statement of the
case and refer it to the High Court:
3
2012 Amendment
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Provided that the Appellate Tribunal may, if it is satisfied
that the dealer or the Commissioner was prevented by sufficient
cause from presenting the application within the period hereinbefore
specified, allow it to be presented within a further period not
exceeding thirty days.
(2) If the Appellate Tribunal refuses to state the case which it
has been required to do, on the ground that no question of law arises,
the dealer or the Commissioner, as the case may be, within thirty
days of the communication of such refusal either withdraw his
application (and if he does so, any fee paid shall be refunded), or
apply to the High Court against such refusal.
(3) If upon receipt of an application under sub-section (2),
the High Court is not satisfied as to the correctness of the decision of
the Appellate Tribunal, it may require the Appellate Tribunal to state
the case and refer it, and on receipt of such requisition, the Appellate
Tribunal shall state the case and refer it accordingly.
(4) If the High Court is not satisfied that the statement in a
case referred to it are sufficient to enable it to determine the
questions raised thereby, the Court may refer the case back to the
Appellate Tribunal for the purpose of making such additions thereto
or alternations therein as it may direct in that behalf.
(5) The High Court upon the hearing of any such case shall
decide the question of law raised thereby, and shall deliver its
judgment thereon containing the grounds on which such decision is
founded, and shall send to the Appellate Tribunal a copy of such
judgment under the seal of the Court and the signature of the
Registrar, and the Appellate Tribunal shall dispose of the case
accordingly.
(6) Where a reference is made to the High Court under this
section, the costs [which shall not include the fee referred to in sub-
section (1)] shall be in the discretion of the Court.
(7) The payment of the amount of tax and penalty (if any)
due in accordance with the order of the Appellate Tribunal in respect
of which an application has been made under sub-section (1) shall
not be stayed pending the disposal of such application or any
reference made in consequence thereof but if such amount is reduced
as a result of such reference, the excess tax paid shall be refunded in
accordance with the provisions of section 30.”
3. The provision of appeal under the DVAT Act stands comprised in
Section 81 and is constructed in the following terms:
“81. Appeal to High Court. — (1) An appeal shall lie to the High
Court from every order passed by the Appellate Tribunal in appeal
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under this Act, if the High Court is satisfied that the case involves a
substantial question of law.
(2) The Commissioner or the other party aggrieved by any
order passed by the Appellate Tribunal may file an appeal to the
High Court and such appeal under this sub-section shall be –
(a) filed within sixty days from the date on which the order
appealed against is received by the Commissioner or [served
upon] the other party.
[Provided that the High Court may entertain an appeal after
the expiry of the period of sixty days, if it is satisfied that there was
sufficient cause for not filing it within that period.]
[Provided further that the above proviso shall be deemed to
have come into force with effect from the First day of April, 2005.]
(b) in the form of a memorandum of appeal precisely stating
therein the substantial question of law involved.
(3) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate that
question.
(4) The appeal shall be heard only on the question so
formulated, and the respondents shall, at the hearing of the appeal,
be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to
take away or abridge the power of the court to hear, for reasons to be
recorded, the appeal on any other substantial question of law not
formulated by it, if it is satisfied that the case involves such question.
(5) The High Court shall decide the question of law so
formulated and deliver such judgment thereon containing the
grounds on which such decision is founded and may award such cost
as it deems fit.
(6) The High Court may determine any issue which-
(a) has not been determined by the Appellate Tribunal;
(b) has been wrongly determined by the Appellate
Tribunal, by reason of a decision on such question of law as is
referred to in sub-section (1).
(7) Where an appeal has been filed before the High Court, it
shall be heard by a bench of not less than two judges of the High
Court, and shall be decided in accordance with the opinion of such
judges or of the majority, if any, of such judges.
(8) Where there is no such majority, the judges shall state the
point of law upon which they differ and the case shall, then, be heard
upon that point only by one or more of the other judges of the High
Court and such point shall be decided according to the opinion of the
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majority of the judges who have heard the case including those who
first heard it.
(9) Save as otherwise provided in this Act, the provisions of
the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to
the High Court shall, as far as may be, apply in the case of appeals
under this section.”
4. Section 106 of the DVAT Act represents the repeal and savings
clause and is reproduced below:
“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, reassessment,
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.]”
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5. In one of the earliest decisions which this Court came to render
post the repeal of the DST Act was in the matter of Shiv Shakti Kirana
Kendra vs. Commissioner, VAT4. The Court in Shiv Shakti Kirana
Kendra was called upon to answer the question whether a further
appeal after the repeal of the DST Act would lie under the provisions of
Section 81 of the DVAT Act or whether the appellant would have to
seek a reference as contemplated under Section 45 of the repealed
enactment. Dealing with the aforesaid question, the Division Bench in
Shiv Shakti Kirana Kendra held as follows:
“8. Before, however, we proceed to do so, it would be relevant to
refer to two other judgments of the Supreme Court, namely, Maria
Cristinia Desouza Sordu v. Amaria Jhurana Parera Pinta, (1979) 1
SCC 92 and P. Mohd v. Thisumalaya, AIR 1966 SC 430. In Maria’s
case (supra), the Supreme Court has laid down that though the right
of appeal is a vested right/substantive right, however the forum with
respect to exercise of such right of appeal is not a vested right. It was
held in the said case that the forum of filing of an appeal is a
procedural matter and the Savings clause in a repealing statute and
Section 6 of the General” Clause Act has nothing to do with the
forum where the remedy of appeal has to be pursued. The forum of
appeal was thus held only to be a procedural matter and not a
substantive or a vested rights issue. In the second case of P.
Mohd. the appeal instead of being heard by the two Judges of the
High Court was heard by a Single Judge and it was held that there is
no vested right in getting the matter heard by two Judges. It was held
that the hearing of an appeal, whether by one Judge or by two Judges
is merely a matter of procedure.
9. In view of the above, when we examine the provision of appeal
under Section 81 of the Delhi VAT Act and the provision of
reference under Section 45(1) and 45(2) of the Delhi Sales Tax Act,
it becomes clear that no vested right has been taken away by passing
of the Delhi VAT Act and in fact only the forum has changed. Under
the old Delhi Sales Tax Act, to approach the High Court, either an
application had to be made before the. Tribunal or before the High
Court which would call for the question of law with the statement of
case from the Tribunal. However under the new Delhi VAT Act,
2004, the only difference is that the procedure has changed and a
party has been given a right to directly approach the High Court
which will frame a question of law. In fact, the right of appeal has4
2009 SCC OnLine Del 2487
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been further strengthened and the procedure has been simplified by
passing of the Delhi VAT Act, 2004 and it is not as if any vested
right of appeal has been taken away. As already stated above, and so
held in Maria’s case, there is no vested right in a forum of appeal
and which is only a procedural matter.
10. The decision of the Punjab and Haryana High Court without
relying upon the decision of the Gammon India’s case has
independently arrived at a decision that an appeal will lie under the
new VAT Act. We, respectfully agree with this view as expressed in
the said decision of the Punjab and Haryana High Court, also for
additional reasons which we have indicated above.
11. Even if we look at the issue from the aspect of retrospectivity of
a legislation, even then in such a case, we find that the legislature,
qua the forum of appeal, has taken a conscious decision on
retrospective operation of Delhi VAT Act as regards forum of a
second appeal to the High Court by virtue of Section 106(3) and
which provision makes it clear that all orders passed under the Delhi
Sales Tax Act will be treated as if they have been passed under the
Delhi VAT Act. Thus vide Section 106(3) the order passed by the
Appellate Tribunal will be an order, not under Section 44 of the
Delhi Sales Tax Act, but one under Section 74 of the Delhi VAT
Act. The unambiguous language of Section 106(2) can lead to no
other conclusion than that the appeal will now lie to the High Court
under Section 81 of the Delhi VAT Act even if the order which is
passed by the Tribunal is in respect to proceedings which were
initiated when the Delhi Sales Tax Act was in force.
12. We accordingly hold that the present appeals under Section 81 of
the Delhi VAT Act are maintainable. The preliminary objection of
the respondent is accordingly rejected. Post the appeals for hearing
on 3rd December, 2009.”
6. It becomes pertinent to note that although the Court in Shiv
Shakti Kirana Kendra had noticed Section 106 of the DVAT Act, it had
no occasion to examine the scope of sub-section (4) which came to be
introduced in that provision subsequently in terms of the 2012
Amendment, albeit with retrospective effect from 01 April 2005.
7. The second decision which would merit consideration was the
judgment of the Court rendered on a Review Petition in Kumagai
Skanska HCC Itochu Group vs. The Commissioner of Value Added
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Tax & Anr.5 [„Kumagai I’]. It would appear that the Court, by its
judgment dated 22 May 2012, had initially taken the view that a
revision under the DVAT Act initiated after 01 April 2005 would be
governed by the period of limitation of four years as constructed in
terms of Section 74A(2)(b) thereof. The Court in terms of its original
judgment had negatived that contention and held that the period of
limitation would be governed by Section 46 of the repealed DST Act.
However, on the Review Petition, the attention of the Court was
specifically invited to sub-section (4) of Section 106 of the DVAT Act,
and which was inserted in that provision after the original judgment
was rendered. In view of the aforesaid, the Division Bench proceeded
to recall its original judgment which had been pronounced on 22 May
2012.
8. The original writ petition in Kumagai I was taken up for
consideration thereafter and came to be finally allowed on 26 April
2016 in Kumagai Skanska HCC Itochu Group vs. The
Commissioner of Value Added Tax & Anr.6 [„Kumagai II‟]. While
dealing with the scope of the revisional power under the DVAT Act, the
Court in Kumagai II observed as follows:
“Revisional power under the DVAT Act
12. Section 74A of the DVAT Act provides for powers of revision of
the Commissioner. Section 74A (1) of DVAT Act states that the
Commissioner may, of his own motion or upon information received
by him, call for the record of any order or assessment passed under
this Act by any officer or person subordinate to him and examine
whether (a) any turnover of sales has not been brought to tax or has
been brought to tax at lower rate or has been incorrectly classified or
any claims incorrectly granted or that that liability to tax is
understated or (b) in any case, the order is erroneous, insofar as it is
prejudicial to the interest of Revenue and after examination, the5
2014:DHC:2330-DB
6
2016:DHC:3181-DB
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Commissioner may pass an order to the best of his judgment, where
necessary.
13. By way of Amendment to the DVAT Act, by the Delhi Value
Added Tax (Amendment) Act, 2009 notified on 6th January 2010,
sub-Section 5 was inserted in Section 74A of the DVAT Act which
stated that notwithstanding anything contained in any judgment,
decree or order of any Court, “the provisions of this Section shall be
deemed to have come into effect with effect from the 1st April
2005.” In other words, the power of the Commissioner to revise the
order of the subordinate officer in terms of Section 74A of DVAT
Act was made effective from 1st April 2005. Section 74A itself was
inserted and notified with effect from 16th November 2005.
Therefore, during the period from 1st April 2005 to 16th November
2005 there was no provision under the DVAT Act which was similar
to Section 46 of the DST Act which granted to the Commissioner the
suo motu power of revision.
The decision in International Metro Civil Contractors
14. In International Metro Civil Contractors v. CST/VAT (2008) 16
VST 329 (Del) this Court held that Section 74A “did not resuscitate
or resurrect the long-dead revisionary power conferred on the
Commissioner under Section 46 of the DST Act. It had no
retrospective effect.” The said Special Leave Petition („SLP‟) filed
by the Department against the aforesaid judgment was disposed of
by the Supreme Court by its order dated 31st March 2008 with the
observation that “the larger issue regarding the applicability of the
Delhi Value Added Tax Act, 2004 as also question of repeal of the
Delhi Sales Tax Act and related issues discussed in the impugned
judgment of the High Court are kept open.”
15. It may be also noticed at this stage that with retrospective effect
from 1st April 2005 sub-section (4) in Section 106 of the DVAT Act
was introduced. Section 106 was the „repeal and savings‟ provision.
Section 106 (4) stated that notwithstanding anything contained in the
DVAT Act, for the purpose of levy, assessment, deemed assessment,
reassessment, appeal, revision, review etc. which relates to any
period ending before 1st 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.”
9. Insofar as the scope and ambit of the revisional power is
concerned and its interplay with Section 106(4), the same ultimately
came to be authoritatively laid to rest by a Full Bench of the Court in
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Dharam Pal Satya Pal Ltd. vs. Commissioner, VAT (Del)7 in the
following terms:
“62. We have referred to the aforesaid decisions to highlight three
aspects, namely, while interpreting a repeal and saving provision of
a new enactment, the intention of the Legislature is to be seen
whether it intends to keep alive the old rights and liabilities or
whether it manifests an intention to destroy the same, secondly, if
the provision relating to repeal and saving is clear and the rights,
obligations and liabilities accrued thereunder are saved, the reliance
on the General Clauses Act is not necessary and, thirdly, how the
liability subsists and is governed by the limitation provided under
the repealed Act and the new Act.
63. In the present factual matrix, an order of assessment passed
under the Delhi Sales tax Act was subject to revision under section
46 of the DST Act. The assessee was given a right to prefer revision
under section 47 of the DST Act. The said order of assessment was
subject to appeal and revision under the DST Act. The core issue
that has emerged in this batch of petitions is whether by virtue of the
language employed under section 106 of the DVAT Act, the
exercise of revisionary power gets totally extinguished.
64. It would not be out of place to refer to a passage from Craies on
Statute Law, Seventh Edition, page 403, wherein it has been stated
thus :
“If the three months’ limit imposed by the Act of 1885 had
expired before the commencement of the Act of 1904, the
offender’s
prosecution would have been then barred by prescription,
and the new Act would not, on coming into force, have
destroyed a prescription already acquired.”
65. From the aforesaid pronouncements in the field, the following
principles can safely be culled out :
(i) The concept of liability “accrued” or “incurred therein”
and “obligation” have different connotations.
(ii) The meaning of “right accrued” and “vested right” will
depend upon the language of the statute and the intention
expressed by the Legislature.
(iii) The intention of the Legislature must be absolutely
clear whether it intends to destroy the old liabilities and it
would depend upon the entire scheme of the Act.
(iv) An order of assessment is final subject to the provisions
relating to appeal, revision, reassessment and rectification.
7
2011 SCC OnLine Del 3708
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(v) A statute is not to be interpreted to be retrospective or
retroactive to touch the existing final orders.
(vi) Even if no action is taken under the repealed Act, the
civil as well as the criminal liability that had incurred under
the repealed statute are not obliterated and are kept alive if
there is a saving provision.
(vii) A legal proceeding which could have been initiated
under the repealed Act continues to subsist if the savings
and repeal provision so stipulates subject to the law of
limitation. To elaborate, the right to initiate a legal
proceeding can only be obliterated or effaced or meet its
legal death if the period of limitation thereon has expired.
66. Regard being had to the aforesaid principles the Scheme of
section 106 of the DVAT Act is required to be scanned. The basic
facet of section 106 of the DVAT Act has to be interpreted on the
touchstone of the above culled out principles. Sub-section (1) of
section 106 of the DVAT Act, as it clearly reveals, is a simple repeal
of the DST Act. Sub-section (2) saves the right, title, entitlement,
obligation or liability already acquired, accrued or incurred under the
repealed Act. Sub-section (3) postulates that anything done under the
DST Act shall be deemed to be done or taken in exercise of the
power conferred by or under the DVAT Act. Thus, three situations,
namely, (i) assessment completed and already revised ; (ii)
assessment completed and revisional power invoked but the process
not completed ; and (iii) assessment completed, but no revisional
power invoked, do contextually emanate.
67. Thus, it is quite clear to us that section 106(2) of the DVAT Act
not only saves the right, title and entitlement but also saves the
obligations and the liability. The term “obligation” includes every
duty enforceable by law. It is an expression which includes not only
duty but something more. The expression “liability incurred
thereunder” has a larger canvas and makes one remain liable under
law subject to statutory boundaries. The term “finality” has to be
understood in its truest denotation and an order of assessment by
itself does not earn the status of being final unless it is totally barred
by law to be touched. Section 106(3) of the DVAT Act clearly lays a
postulate that an order passed under section 46 of the DST Act and
the process of assessment leading to it is deemed to have been done
in exercise of the power conferred under the DVAT Act. What is
provided under section 106(2) is that the repeal shall not affect the
previous operation of the DST Act or any right, title, entitlement,
obligation or liability already acquired, accrued or incurred
thereunder. On a seemly scanning of the provision engrafted under
section 46 of the DST Act, a suo motu revision could be initiated
and concluded within five years of the order of assessment. In sub-
section (2)(b) of section 74A of the DVAT Act, a rigor has been
attached that no order under this section shall be passed after the
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expiry of four years from the end of the year in which the order
passed by the subordinate officer has been served on the dealer.
Section 74A(2)(c) carves out a period of five years under certain
other circumstances. The right to a dealer would have attained
finality and become a vested or ripened right after the expiry of the
period of limitation under the DST Act and if the proceedings are
initiated within the period of limitation, the exercise of the suo motu
power of revision cannot be treated as illegal. In other words, if the
time to exercise the revisionary power had not expired before
coming into force of the DVAT Act, the said power could be
exercised in respect of an order under the DST Act in terms of
section 74A of the DVAT Act read with section 106 of that Act.
68. Turning to the previously mentioned three categories of cases, in
the first category of cases, wherein assessment has been completed
and already revised, by virtue of the language employed in section
106(3) of the DVAT Act, the order passed has to be considered as an
order passed under the DVAT Act. In the second category of cases,
wherein assessment has been completed and revisional power has
been invoked though the process is not completed, the assessee has
incurred the liability of the order of the assessing officer being
scrutinized by the Commissioner which includes the revisional
power and sub-section (3) gets attracted. In the third category of
cases, where the assessments are completed but no revisional power
is invoked, here again sub-section (3) of section 106 would be
attracted as if the same is deemed to be an order passed under the
DVAT Act. If the order of assessment could not have been revised
under the DST Act as on April 1, 2005, the power of revision
conferred under the DVAT Act cannot be exercised if the time span
has expired. To elaborate, if an order of assessment has attained
finality in toto and a right has vested in the assessee, no suo motu
power can be exercised as the right fully accrues in favour of the
assessee without having any obligation and further having no
liability.
69. Further we may note with profit that the Legislature made
section 74A retrospective from the date the DVAT Act came into
existence to reaffirm its intendment that it never intended not to
confer the power of revision on the revisionary authority. The
interpretation placed by us on the language employed under section
106(2) and 106(3), analysis made hereinbefore on the impact of
insertion of section 74A initially from November 16, 2005 and
thereafter to make the provision retrospective from April 1, 2005,
clearly conveys that the Legislature at all point of time intended to
protect the interest of the Revenue.
70. At this juncture, we may state with certitude that though a cavil
was raised by learned counsel for both the sides with regard to the
applicability of the Bengal General Clauses Act, 1891 to the
Government of NCT of Delhi, the same has not been adverted to by
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us because of the interpretation placed by us under the repeal and
savings provision. The said issue is kept open.
71. In view of our aforesaid premised reasons, we proceed to record
our conclusions in seriatim :
(a) The interpretation placed by the Division Bench in
International Metro Civil Contractors [2008] 16 VST 329
(Delhi) and L. G. Electronics (India) Ltd. [2008] 16 VST
361 (Delhi) on section 106 of the DVAT Act is not correct.
(b) The conclusion in International Metro Civil Contractors
[2008] 16 VST 329 (Delhi) and L. G. Electronics (India)
Ltd. [2008] 16 VST 361 (Delhi) to the effect that despite
incorporation of section 74A in the DVAT Act on
November 16, 2005, the suo motu revisional proceeding
could not be initiated at the commencement of the DVAT
Act, i.e., April 1, 2005, as the legislative intendment was
clear that on the date the Act came into force the provision
pertaining to exercise of suo motu revisionary power did not
exist in respect of the proceedings under the DST Act as the
assessment had attained finality and were closed, is
incorrect.
(c) The order of assessment framed under the DST Act is
deemed to be an order framed under the DVAT Act and on
reading of sections 106(2) and 106(3) in a conjoint manner,
it is not correct to state that once the order of assessment has
been passed, the transaction is closed and, therefore, the
assessment/order is not revisable under section 74A of the
DVAT Act.
(d) The liability incurred or accrued under the DST Act has
a larger expanse and a broader canvas and it would in view
of section 106(2) of DVAT Act include initiation of any
legal proceeding which is permissible within the period of
limitation and till then no final or vested right accrues in
favour of the assessee.
(e) The amendment brought by the Legislature
retrospectively incorporating section 74A with effect from
April 1, 2005 has been done to further elucidate the
legislative intention and has to be given full effect to. The
said amendment has been brought in the statue book by ex
abundanti cautela and in essence, removes the anomaly and
is only curative in nature.
(f) The proceeding initiated under the DST Act is saved by
the DVAT Act and further the proceedings could be
initiated under section 74A during the period of limitation
as stipulated under section 74A subject to the conditions
precedent stipulated therein.
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(g) The decisions in International Metro Civil Contractors
[2008] 16VST 329 (Delhi) and L. G. Electronics (India)
Ltd. [2008] 16 VST 361 (Delhi) are overruled to the extent
indicated hereinabove.
72. The reference is answered accordingly. The writ petitions be
listed before the appropriate Division Bench.”
10. However, in these appeals, we are really not concerned with the
revisional power since the objection which is raised stands confined to
the procedure liable to be followed for the purposes of institution of an
appeal.
11. The next decision which would merit consideration is that of
Commissioner of VAT vs. Jupitor Exports8. The said judgment was
rendered on an appeal instituted by the Commissioner of VAT directly
before the High Court. While dealing with the maintainability of the
appeal, the Court in Jupitor Exports observed as follows:
“1. This appeal under Section 81 of Delhi Value Added Tax, 2004
(hereinafter referred to as “the Delhi VAT Act”), is directed against
the order dated 07.01.2014 passed by the Appellate Tribunal: Value
Added Tax (VAT) Delhi (hereinafter referred to as “the Appellate
Tribunal”) in appeal which had been preferred before it and
registered vide No. 75/STT/-05-06, in turn, questioning the legality,
correctness and propriety of the order dated 06.06.2005 passed by
the Commissioner, Sales Tax (hereinafter, “the Commissioner”)
rejecting the request of the respondent herein (“the Assessee”) for
compounding the offences allegedly committed by the latter under
Section 50(1)(a) and (j) of Delhi Sales Tax Act, 1975 (hereinafter
referred to as “the Delhi Sales Tax Act”) in terms of the provisions
contained in Section 54 thereof.
2. It may be mentioned here that by Section 106 of Delhi VAT Act,
amongst others, the Delhi Sales Tax Act was repealed with effect
from 01.04.2005. Notwithstanding such repeal, right, title,
entitlement, obligation or liability already acquired, accrued or
incurred under the repealed legislation survived. The authorities
under the Delhi VAT Act have replaced the authorities created under
the Delhi Sales Tax Act. The remedies of appeal against orders of
such authorities, thus, are available through the machinery created
by the new law.
8
2015 SCC OnLine Del 7520
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3. It must also be added here that in the regime governed by Delhi
Sales Tax Act, there was no provision of appeal to the High Court.
The appeals under the said law would lie only before the Appellate
Tribunal. After adjudication on the appeal by such Tribunal, the
aggrieved party (the dealer or the Commissioner) could, however,
request for a reference to the High Court under Section 45 on
question of law. However, the new law (Delhi VAT Act) having
now provided for a second appeal (Section 81) to the High Court
against orders of the Appellate Tribunal, though confined to
substantial questions of law, the impugned order having been passed
by the Appellate Tribunal (constituted under Section 76 of Delhi
VAT Act) after coming into force of the new law, the appeal has
been entertained by this court.
4. A view to above effect was taken by another Division Bench of
this court in Shiv Shakti Kirana Kendra v. Commissioner, VAT, ILR
(2010) I Delhi 237, inter alia, relying on the decision of Supreme
Court in Gammon India Ltd. v. Spl. Chief Secretary [2006] 145 STC
1 (SC) setting out its conclusions, with which we respectfully agree
and follow, in the following words:
“…we find that the legislature, qua the forum of appeal, has
taken a conscious decision on retrospective operation of
Delhi VAT Act as regards forum of a second appeal to the
High Court by virtue of Section 106(3) and which provision
makes it clear that all orders passed under the Delhi Sales
Tax Act will be treated as if they have been passed under
the Delhi VAT Act. Thus vide Section 106(3) the order
passed by the Appellate Tribunal will be an order, not
under Section 44 of the Delhi Sales Tax Act, but one under
Section 74 of the Delhi VAT Act. The unambiguous
language of Section 106(2) can lead to no other conclusion
than that the appeal will now lie to the High Court under
Section 81 of the Delhi VAT Act even if the order which is
passed by the Tribunal is in respect to proceedings which
were initiated when the Delhi Sales Tax Act was in force.”
[emphasis supplied]”
12. As is evident from a reading of Section 45 of the DST Act, a
person desirous of challenging an order passed by the Appellate
Tribunal, was required to submit a request to that Tribunal to refer a
question of law arising out of such order for the consideration of the
High Court. In terms of Section 45(2), if the Appellate Tribunal were to
refuse to state the case on forming the opinion that no question of law
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arose, both the dealer as well as the Commissioner stood enabled to
apply to the High Court against such refusal.
13. The hierarchy of remedies as created under the DST Act, insofar
as appeals are concerned, is essentially replicated and re-enacted by the
DVAT Act. Under the DVAT Act, the assessee stands accorded the
remedy of preferring an appeal to the Appellate Tribunal which stands
constituted. The DVAT Act further enables an aggrieved person to
approach the High Court by way of an appeal in respect of every order
passed by the Appellate Tribunal. The appeal to the High Court,
however, is subject to the appellant establishing that the case involves a
„substantial question of law‟.
14. The fundamental difference between the two enactments, insofar
as appeals to the High Court are concerned, lies in the fact that a person
aggrieved, now and post the promulgation of the DVAT Act, is entitled
to approach the High Court directly as opposed to petitioning the
Tribunal for drawing up a „statement of case‟ and referring the same to
the Court.
15. The objection of the respondents, however, is founded on Section
106(4) of the DVAT Act, with it being submitted that since these
appeals pertain to a period prior to 01 April 2005, it is the course as
stipulated by Section 45 of the DST which would have to be adhered to.
16. As we view Section 106, we find that sub-section (1) thereof
declares in explicit terms that the DST Act stands repealed. Section
106(2) constitutes the first of the saving clauses forming part of that
provision and which declares that the repeal of the DST Act would not
affect the previous operation of that Act or impact any right, title,
entitlement, obligation or liability already acquired, accrued or incurred
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thereunder. Section 106(2) thus incorporates principles which are
broadly spoken of in Section 6 of the General Clauses Act, 1897. By
virtue of that provision, all rights, title, entitlements, obligations or
liabilities acquired, accrued or incurred under the repealed enactment
would thus remain unimpacted, and in any case, by virtue of sub-
section (2) would not be obliterated upon the repeal of the DST Act.
When we turn our gaze upon sub-section (3) of Section 106, it becomes
apparent that the clear intent of that sub-section is to sustain and save
all actions that may have been taken under the repealed enactment and
to trace the same to the corresponding provisions enshrined in the
DVAT Act.
17. That takes us then to the principal provision which was sought to
be pressed into aid by the respondents and on the basis of which it was
contended that it was obligatory upon the appellants to follow the
procedure as stipulated in Section 45 of the DST Act.
18. For our purposes, sub-section (4) would essentially read as
postulating that notwithstanding anything contained in the DVAT Act,
for the purposes of appeals which relate to any period ending before 01
April 2005 or for any other purpose connected with or incidental
thereto, the repealed act, together with all rules, regulations or orders
promulgated thereunder, shall continue to have effect as if the DVAT
Act had not been passed. At least, that is how the respondents would
bid us to read that provision.
19. In our considered opinion, sub-section (4) cannot possibly be
construed or interpreted as requiring adherence to a procedure which
existed under the erstwhile enactment. Undisputedly, the right of an
appeal against an order passed by the Appellate Tribunal existed even
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under the erstwhile DST Act. That right has not been obliterated
consequent to the promulgation of the DVAT Act. In fact, the said right
stands preserved by virtue of Section 81 of that Act.
20. It also becomes pertinent to note that Section 106, while
undoubtedly repealing the DST Act, also in unambiguous terms, seeks
to preserve all rights, entitlements, obligations or liabilities acquired,
accrued or incurred under the DST Act. The promulgation of the
DVAT Act was thus, and in light of the express language of Section
106, not intended to be an annihilation of rights and liabilities which
otherwise existed under the DST Act and were available to be exercised
prior to 01 April 2005.
21. The effect of repeal and its impact on rights and liabilities which
may have been incurred or had accrued was lucidly explained by the
Supreme Court in Gammon India Ltd. vs. Spl. Chief Secy.9 We deem
it apposite to extract the following passages from that decision:
“38. In Pentheny, Ltd. v. Govt. of Virgin Islands [360 F. 2d 786 (3rd
Cir. 1966)] the US Court of Appeals has observed as under:
“Simultaneous repeal and re-enactment of substantially the same
statute, or part thereof, is a substitution and not a repeal, and the
statute, or part thereof, thus substituted is construed as a continuation
of the original provisions to the extent re-enacted and jurisdiction of
administrative agency under such statute is not disturbed as to those
provisions which were continued under the new statute.”
xxxx xxxx xxxx
46. The principle which has been laid down in this case is that
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 purposes of determining whether
they indicate a different intention. The line of enquiry would be, not
9
(2006) 3 SCC 354
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whether the new Act expressly keeps alive old rights and liabilities
but whether it manifests an intention to destroy them. We cannot
therefore, subscribe to the broad proposition that Section 6 of the
General Clauses Act is ruled out when there is repeal of an
enactment followed by a fresh legislation. Section 6 would be
applicable in such cases also unless the new legislation manifests an
intention incompatible with or contrary to the provisions of the
section.
xxxx xxxx xxxx
51. The Court examined the ambit and scope of Section 6 of the
General Clauses Act, 1897 in Tulloch case [(1964) 4 SCR 461 : AIR
1964 SC 1284] . According to the ratio of the said judgment, the
principle underlying Section 6 of the General Clauses Act, 1897 is
that every later enactment which supersedes an earlier one or puts an
end to an earlier state of the law is presumed to intend the
continuance of rights accrued and liabilities incurred under the
superseded enactment unless there were sufficient indications
expressed or implied in the later enactment designed to completely
obliterate the earlier state of the law.
52. In view of the interpretation what follows is absolutely clear that
unless a different intention appears in the repealing Act, any legal
proceeding can be instituted and continued in respect of any matter
pending under the repealed Act as if that Act was in force at the time
of repeal. In other words, 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 repealing statute.
xxxx xxxx xxxx
68. Francis Bennion in his book on Statutory Interpretation, (2nd
Edn.) says that where an English Act passed after 1878, repeals and
re-enacts the enactment (with or without modification) then, unless
the contrary intention appears, anything done, or having effect as if
done, under the enactment repealed, insofar as it could have been
done under the provision re-enacted, has effect as if done under that
provision.
69. G.P. Singh in his book on Principles of Statutory Interpretation,
2006 Edn. enumerated the effect of clauses (c) to (e) of Section 6 of
the General Clauses Act, namely, is to prevent the obliteration of a
statute in spite of its repeal to keep intact rights acquired or accrued
and liabilities incurred during its operation and permit continuance
or institution of any legal proceedings or recourse to any remedy
which may have been available before the repeal for enforcement of
such rights and liabilities.
xxxx xxxx xxxx
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71. Since the effect of a repeal is to obliterate the statute and to
destroy its effective operation in future, or to suspend the operation
of the common law, when it is a common law principle which is
abrogated, any proceedings which have not culminated in a final
judgment prior to the repeal are abated at the consummation of the
repeal. When, however, the repeal does not contemplate either a
substantive common law or statutory right, but merely the procedure
prescribed to secure the enforcement of the right, the right itself is
not annulled but remains in existence enforced by applying the new
procedure.”
22. Undisputedly, the DVAT Act is a cognate statute, similar to the
DST Act. The DVAT Act, as its Preamble itself states, constitutes a
consolidating legislation relating to a levy of tax on the sale of goods,
tax on the transfer of property in goods, tax on the transfer of a right to
use and allied subjects. The tax which the DST Act sought to impose
also pertained to sale of goods and the regulation of transactions in
relation thereto. The DVAT Act thus would appear to be the re-
enactment of a similar legislation pertaining to the levy of a tax on the
sale of goods and other transactions made subject to the impost created
in terms thereof.
23. The repeal and savings provision of Section 106 and more
particularly sub-section (4) thereof is clearly not liable to be construed
as seeking or intending to regulate matters of procedure. Undoubtedly,
Section 106(4) too is a savings clause, and which seeks to preserve and
secure benefits flowing from or accrued under the DST Act as well as
any liabilities that may have been already acquired or incurred. We find
that the Statement of Objects and Reasons10 which accompanied of
2012 Amendment would be of critical importance and sheds light on
the intended purpose underlying the introduction of sub-section (4) of
Section 106 with retrospective effect. The SOR is extracted
10
SOR
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hereinbelow: –
“STATEMENT OF OBJECTS AND REASONS
To bring uniformity in the definition of purchase and sale
turnover in section 2, the definition of purchase turnover is proposed
to be amended.
To smoothen the tax planning and make it more efficient,
time for payment of Net Tax is proposed to be reduced from 28 days
to 21 days by amending section 3.
To reduce the limitation period for revision of returns and
filing of objection for correction of deficiencies in return from four
years to one year, section 28 is proposed to be amended.
To provide for treating any return having been digitally
signed as per the provisions of clause (p) of sub-section (1) of
section 2 of the Information Technology Act, 2000 (No.21 of 2000)
at par with electronic return to mean returns in the Act 29 is
proposed to be amended.
To further extend the period of limitation prescribed under
sub-section (10) of section 74 of the DVAT Act by another year,
which would mean that these appeals would have to be decided by
31.03.2013 instead of 31.03.2012, section 74 is proposed to be
amended.
For conferring power on the High Court to condone the
delay in filing of appeals, a proviso was inserted in the Section 81
through the Delhi Act 12 of 2010 which took effect from 1st
February 2011. While the intended purpose of the amendment was
to make the provision applicable to some appeals which were
dismissed by the High Court for delayed filing, before the
amendment, the earlier amendment can achieve its useful
purpose/objective only if the amendment is given effect
retrospectively, which is being attempted through the proposed
amendment in section 81.
To provide for a specific saving clause in respect of the
power of revision under the Delhi Sales Tax Act, 1975, section 106
of the Delhi Value Added Tax Act, 2004 is proposed to be amended
on the suggestion of the Additional Solicitor General of India.
The Bills seek to achieve the aforesaid objectives.
(SHEILA DIKSHIT)
CHIEF MINISTER / MINISTER OF FINANCE
NEW DELHI”
24. As is evident from the above, Section 106(4) appears to have
been introduced with the primary objective of inserting a specific
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savings clause in respect of the power of revision which otherwise
existed under the DST Act. Viewed in that light, it becomes manifest
that Section 106(4) was clearly not intended to regulate the procedure
for the institution of an appeal. Undisputedly, the remedy of appeal was
preserved by virtue of the savings clauses forming part of Section 106.
Both the respondent as well as the appellants had the right to prefer an
appeal against an order passed by the Appellate Tribunal if it were
recognized to give rise to a question of law under the DST Act. There is
thus no substantial modification or variation of the right of appeal
which existed. Section 81 of the DVAT Act merely changes the
procedure liable to be followed for the purposes of petitioning the High
Court against an order passed by the Tribunal. That provision cannot
possibly be construed or interpreted as regulating a matter of procedure.
It is concerned with preservation of positive rights which had accrued
as well as liabilities incurred or accrued.
25. All that Section 81 of the DVAT Act now prescribes is that such
an appeal would be entertainable only if it involves a „substantial
question of law‟. There is thus no fundamental alteration of the right
that otherwise stood enshrined under the DST Act. As we view sub-
section (4) of Section 106, it becomes apparent that all that it essentially
seeks to save is the right in respect of input or credit of inputs, tax
exemption, deferment of tax or the imposition of penalties, interest or
forfeiture or sums pertaining to any period prior to 01 April 2005.
26. More importantly, the obligation to petition the Tribunal for
drawal of a statement of case cannot be construed as a liability accrued
or incurred. It was merely a matter of procedure and which did not
impair the right of appeal. This more so since a referral by the Tribunal
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to draw a statement of case was subject to review and correction.
27. We thus find ourselves unable to either construe or read that
provision as mandating appeals preferred after 01 April 2005 being
subject to the rigors of procedure which stood constructed in terms of
Section 45 of the erstwhile enactment, namely, the DST Act. The fact
that some of the decisions noticed above omitted to advert to sub-
section (4) would not convince us to take a contrary view.
28. Accordingly, and for all the aforesaid reasons, we negate the
preliminary objection that stands raised. The appeals as instituted
before this Court in accordance with Section 81 of the DVAT are,
consequently, held to be maintainable.
29. Consequently, let these matters be listed on 17.12.2024.
YASHWANT VARMA, J.
RAVINDER DUDEJA, J.
NOVEMBER 06, 2024/kk
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