- (1.) This order shall dispose of VAT Appeal Nos. 102 and 103 of 2013 as according to the learned counsel for the parties, the issue involved therein is identical. However, the facts are being extracted from ITA No. 102 of 2013. VAT Appeal No. 102 of 2013 has been preferred by the assessee under section 36 of the Haryana Value Added Tax Act, 2003 (in short, "the Act") against the order dated July 8, 2013, annexure A5, passed by the Value Added Tax Tribunal, Haryana, Chandigarh (in short, "the Tribunal") in STA No. 174 of 2011-12, claiming following substantial questions of law: (A) Whether the Commissioner in revision enjoys the supervisory jurisdiction to examine the order passed by the Assessing Officer to the extent whether the order passed by the taxing authority is correct or not? (B) Whether the Commissioner in exercise of his power will either confirm the order or set aside the order and pass an assessment order if the Commissioner is satisfied that order passed by the Assessing/taxing Authority is erroneous and prejudicial to the interest of revenue? (C) Whether all orders of the assessing officer in which there is application of mind to all the facts and claims decided in one way or the other can be termed as erroneous or challenging propriety of proceedings or legality of the order, which alone can be the basis of revision in terms of section 34(1) of the Act and scope thereof? (D) Whether the powers and scope of provisions of section 34(1) of Haryana VAT Act being pari materia to the provision of section 263 of IT Act and is guided by the law laid down by the courts on income-tax law, thus are binding precedent? For exercise of powers under section 34(2) of the Haryana VAT Act the authority passing the order shall specify how he derives powers to pass order? (E) Whether, on true interpretation of the notification dated March 31, 2003 and objections of the appellant, the Tribunal was right and justified in observing that the DETC who passed order of revision-cum-assessment order was in exercise of his powers under section 34(1) of the Haryana VAT Act, 2003? (F) That the appellants have been assessed year after year consistently for the past three years after the enforcement of the Haryana VAT Act, and the orders have attained finality and the appellants have never changed tax or claimed the transaction as 'sale' the action being change of opinion. Therefore revision is not permissible. (G) Whether the Deputy Excise and Taxation Commissioner-cum-Revisional Authority have the power of revision for the orders passed under the HVAT Act, 2003 by the Assessing Authority? (H) Whether the Deputy Excise and Taxation Commissioner was competent enough to pass order under section 34(1) of the Act whereas he himself is enjoying the power of Assessing Authority? (I) Whether an officer enjoying the powers of Assessing Authority and revisional authority and district head can examine the order passed by Assessing Authority? (J) Whether the Deputy Excise and Taxation Commissioner-cum-revisional authority was under obligation to confront the new material based on which he has changed the opinion? (K) Whether consistency has to be maintained for assessment of different years of the same assessee based on same facts and material?
(2.) Briefly, the facts relevant for the decision of the controversy involved as available on the record of ITA No. 102 of 2013 are that the assessee is a company registered under the Companies Act, 1956 in the name and style of M/s. H.M. Mehra and Co. It is engaged in job-work of textile and embroidery. The Excise and Taxation Officer-cum-Assessing Authority, Sonepat vide order dated September 17, 2008, Annexure A. 1 framed the assessment holding that no transfer of property was involved in execution of job-work and hence no tax was leviable on job-work done by the assessee. The Deputy Excise and Taxation Commissioner (ST)-cum-revisional authority (DETC) in exercise of revisional jurisdiction as Commissioner vide order dated August 30, 2011, annexure A3, held that since the assessee consumed material in execution of job-work of inter-State dealer, it is liable to pay tax under the Act on deemed sales and direction was issued to the assessing authority to issue challan of tax for Rs. 43,04,702 to the asses-see. Aggrieved by the order, the assessee filed appeal before the Tribunal. During the hearing, a preliminary objection was raised by the assessee that the Deputy Excise and Taxation Commissioner had no power of revision as the same laid with the Commissioner who could not delegate this power to any officer in terms of section 51 of the Act. The Tribunal vide order dated July 8, 2013, annexure A5, rejected the preliminary objection regarding jurisdiction holding that the Deputy Excise and Taxation Commissioner had jurisdiction to pass the order under section 34(1) of the Act. Aggrieved by the order, the assessee is before this court through the present appeals.
(3.) The primary issue that arises for consideration is that whether the revisional power was properly conferred on the DETC or not. Learned counsel for the assessee submitted that the Act came into operation on April 1, 2003 whereas notification annexure A6 was issued by the State Government on March 31, 2003 whereby under sub-section (2) of section 34 of the Act, power had been conferred on various authorities to exercise revisional jurisdiction. According to the learned counsel, once the Act came into operation with effect from April 1, 2003, no valid notification could have been issued on March 31, 2003. Relying upon sub-sections (6) and (9) of section 36 of the Act, it was argued that though this point was not raised before the Tribunal but the same arises in the appeal and therefore the same can be urged before this court.;