AMARJEET CHAUDHARY, J. - (1.) THE petitioner-company through its director has presented this petition praying for issuance of a writ quashing orders dated November 30, 1988 (annexure P-3) and dated December 26, 1989 (annexure P-1) passed by the Excise and Taxation Officer, Ambala and the Joint Excise and Taxation Commissioner (A), Ambala, respectively.
(2.) THE petitioner-company is a private limited company engaged in the business of undertaking works contract. It was assigned the civil works contract by M/s. Bharat Electronic Ltd. , Panchkula. The Excise and Taxation Officer-cum-Assessing Authority, Ambala Cantonment (for short, "the Assessing Authority"), initiated proceedings under section 29 of the Haryana General Sales Tax Act, 1973 (for short, "the Act"), for finalisation of assessment with regard to the works contracts done. By its order dated November 30, 1988 (annexure P-3), the Assessing Authority framed assessment and levied tax amounting to Rs. 3,09,663 on the petitioner-company. A sum of Rs. 1,00,000 was also imposed as penalty on the company for having wilfully failed to apply for its registration. Though according to the Assessing Authority the total work done by the petitioner-company was of Rs. 515 lacs, but since the Government of Haryana had exempted the sales on works contract up to March 31, 1987, the assessment was made from April 1, 1987, till the date of July 27, 1987, i. e. , up-till the period for which the petitioner-company received payment from M/s. Bharat Electronic Ltd. Before the Assessing Authority proceeded for framing assessment, the petitioner-company applied for registration certificate to the Excise and Taxation Officer, Gurgaon, on September 17, 1987, which was granted on April 12, 1988, making the company liable to pay tax with effect from April 1, 1987. The petitioner-company preferred an appeal against the assessment order dated November 30, 1988, before the Joint Excise and Taxation Commissioner (A), Ambala. Along with the appeal, the petitioner also moved an application for stay of recovery on which the petitioner was directed to pay the entire amount in three equal monthly instalments by 28th of each month starting from March, 1989, by order dated March 14, 1989 (annexure P-4 ). The petitioner deposited only one instalment and appealed to the Sales Tax Tribunal, Haryana, who remanded the matter directing the Joint Excise and Taxation Commissioner to decide the appeal on merits.
(3.) THE objections raised before the appellate authority, i. e. , the Joint Excise and Taxation Commissioner (A), Ambala, by the petitioner were : that in view of the amendment made by the Haryana Act 13 of 1989, with effect from April 1, 1987, retrospectively with regard to section 6 (2) (g) of the Act, the petitioner was not liable to pay tax; no tax has been collected nor any purchases have been made on the strength of registration certificate by the petitioner-company and that the Assessing Authority had no jurisdiction to assess the petitioner-company as it had already been granted registration certificate by the Excise and Taxation Officer, Gurgaon, on April 12, 1988. The appellate authority while agreeing with the contention of the counsel appearing for the department that in view of the amendment carried out by Act 13 of 1989 no order passed under the principal Act will be called in question before any court or tribunal or any other authority, held that the appeal could not be heard as the same was not maintainable, vide its order dated December 26, 1989 (annexure P-1 ). In this petition, the orders of the Assessing Authority dated November 30, 1988, as well as of the appellate authority dated December 26, 1989, have been impugned on the grounds that the appellate authority had failed to appreciate that the right to appeal is a substantial right and not merely a matter of procedure and it could not have been taken away by amending the provisions of the Act. The order dated November 30, 1988, is liable to be quashed in view of the latest amendment of clause (g) of the second proviso to section 6 (2) of the Act as the petitioner-company is not liable to pay tax during the period April 1, 1987 to July 27, 1987, as it was neither registered nor had charged tax while executing its works contract.;