Excise and Taxation Commissioner and State of Haryana vs Unitech Limited

Ashutosh Mohunta, J.—This order shall dispose of GSTR No. 6 of 2003 and GSTR No. 1 of 2003, as common questions of law and facts arise in both these cases. However, the facts are being extracted from GSTR No. 6 of 2003.

The Sales Tax Haryana vide its impugned order dated 5.12.2002, has referred the following question of law for adjudication by this Court:

(i) Whether ETO(AES) was an appropriate assessing authority for the respondent in view of the notification dated 19th May, 1989 read with the definition of appropriate assessing authority under Clause (C) of rule of the Rules and whether ETC(AES) had concurrent jurisdiction of act as a assessing authority with the officer in whole circle the respondent was located and was competent to assess the respondent.

(ii) Whether the judgement of Hon''ble Punjab and Haryana High Court in the case of Devi Dass Gopal Krishan Vs. The State of Punjab, was contrary to the judgement of Apex Court in case reported as The Commissioner, Sales Tax, U.P. Vs. Suraj Prasad Gouri Shankar, and if not whether the judgement of Punjab and Haryana High Court reported as 31 STC 537 (P&H) could be ignored in view of judgement of M.P. High Court report as 61 STC 381 (MP) and 18 STC 57(P&H)?

Briefly, the facts of the case are that M/s Unitech Limited, Gurgaon was assessed to tax for the year 1991-91, 1992-93 and 1993-94 as an unregistered dealer by the Excise & Taxation Officer (Anti Evasion Squad)-cum-Assessing Authority on 22.2.1994, as the company was found to have purchased and supplied cement, iron and steel in large quantities to different contractors against payment during the aforementioned assessment years. The orders of assessment passed by ETO(AES) were challenged in appeals before the J.E.T.C. (Appeal), Rohtak, who vide order dated 24.8.1995 partly dismissed the appeals and remanded the case to the assessing authority for deciding the case regarding empty cement bags and steel scraps.

The respondent being aggrieved by the aforementioned order challenged the same before the Tribunal. It was contended on behalf of the assessee that the ETC(AES) does not have the concurrent jurisdiction and therefore, was not competent to assess the dealer being ''not an appropriate assessing authority'' u/s 2C of the Haryana General Sales Tax Rules, 1975. The Tribunal vide its order dated 17.4.2002, quashed the orders passed by the assessing authority as well as the Tribunal by the JETC (Appeals) on the ground that the assessing authority was not the appropriate authority to assess the assessee.

Thereafter, an application for referring the matter to the High Court was filed by the Revenue which has been allowed and the matter has been referred to the High Court.

Counsel for the Revenue has submitted that a perusal of Notification dated 19.5.1989, would make it absolutely clear that the Excise & Taxation Officers (AES) have been authorized to perform the duties of the assessing authority within the meaning of Clause (a) of Section 2 of the Haryana General Sales Tax Act read with Section 2C of the Rules. The Notification dated 19.5.1989, is reproduced as under:

No.S.O.76/H.A.20/73.S.3/89.-In exercise of the powers conferred by Section 3 and Clause (a) of Section 2 of Haryana General Sales Tax Act, 1973 the Governor of Haryana hereby appoints the Excise and Taxation Officer (Anti Evasion Squad) Excise and Taxation Department to assist the Commissioner, Haryana, and authorize him to perform the duties of an assessing authority within the meaning of the said clause(a) of Section 2 of the said Act through out the State of Haryana.

Counsel for the Revenue has submitted that similar provision has been interpreted by the Division Bench in the judgement in Devi Dass Gopal Krishan v. State of Punjab reported as (1973) 31 STC 536, wherein the Notification dated 11.6.1963, which was in the same terms as Notification dated 19.5.1989, was interpreted and it was held that "The reading of the notification along with the definition of "appropriate Assessing Authority" clearly shows that Shri K.K. Uppal had the jurisdiction to make the assessment. We are, therefore, of the opinion that he was the appropriate Assessing Authority as defined in Clause (b) of Rule 2 of the Rules".

Learned Counsel, therefore, submits that the orders passed by the assessing authority as well as the appellate authority were in consonance with the Notification dated 19.5.1989.

On the other hand, the arguments raised by the counsel for the Revenue have been controverted by Mr. Krishan Mehta, counsel for the assessee, who submits that ETO(AES) was not the Officer who had the necessary jurisdiction of the Circle in question and hence he did not have the jurisdiction.

We have heard the counsel for the parties at length and find that the language of the Notification dated 19.5.1989, is itself absolutely clear, whereby the Government of Haryana has appointed Excise & Taxation Officer (Anti Evasion Squad) to assist the Commissioner, Haryana and has further authorised him to perform the duties of the assessing authority within the meaning of Clause (a) of Section 2 of the Act, in addition to his duties as the assessing authority in a particular circle. Apart from the above, the present case is squarely covered by the decision in Devi Dass''s case (supra), wherein the ETO(AES) has been authorized to perform his duties of assessing authority within the meaning of Clause (a) of Section 2 of the Haryana General Sales Tax Act.

In view of the above question No. 1 is answered in favour fo the Revenue and against the assessee.

As far as question No. 2 is concerned, the facts of the judgement of the Hon''ble Supreme Court in (1976) 37 STC 533 were entirely different, as in that case an office of one Circle had made an assesment with regard to another Circle without proper authorization. Moreover, the Notification dated 19.5.1989, issued by the Haryana Government was not the subject matter of decision in the judgment reported as (1976) 37 STC 533. Thus, question No. 2 does not survive in the facts and circumstances of the present case as its facts are not applicable to this case.

For the reasons recorded above, this reference is decided in favour of the Revenue and against the assessee. As the Tribunal has not decided the case on merits, therefore, the case is sent back to the Tribunal to decide the matter afresh on merits after giving opportunity to both the sides.