- (1.) THIS appeal has been preferred by the assessee under Section 68 of the Punjab Value Added Tax Act, 2005 (in short, "the 2005 Act") against the order of the VAT Tribunal in Appeal Nos. 515 -517 of 2004 -05 dated September 6, 2007, for the assessment year 1994 -95. The assessment and other proceedings have taken place under the Punjab General Sales Tax Act, 1948 (in short, "the 1948 Act") which was applicable prior to April 1, 2005.
(2.) IN para 3 of the appeal, the following substantial questions of law have been proposed: (i) Whether, on the facts and circumstances of the case, the impugned order (A -9) passed by the Tribunal in rectification proceedings on September 6, 2007, was beyond the scope of rectification jurisdiction under Section 21A(2) of the PGST Act, 1948 and therefore without jurisdiction, hence liable to be set aside? (ii) Whether the impugned order, annexure A -9, is beyond the prescribed period of limitation of two years, given in Section 21A(2) of the Act and therefore without jurisdiction and, hence liable to be quashed? (iii) Whether, on the facts and circumstances of the case, the learned Tribunal was bound to adjudicate all the issues raised in original appeal which were not decided by the Tribunal while passing the original order? (iv) Whether the order passed by the Assessing Authority is barred by limitation as prescribed under Section 11(3) as amended by notification dated March 3, 1998? (v) Whether, on the facts and circumstances of the case, the original order of assessment was time -barred even under the unamended Section 11(4) of the PGST Act, as no notice of best judgment assessment was ever given to the assessee before passing any order?
(3.) THE appellant is a dealer registered under the provisions of the 1948 Act and 2005 Act and filed four quarterly returns for the assessment year 1994 -95 and paid tax according to the returns. The assessing authority issued notice dated October 24, 1997 under Section 11(2) of the 1948 Act and made assessment creating additional demand vide orders dated April 29, 2004. It was observed that the assessee failed to attend the proceedings and assessment could not be finalised earlier due to non -co -operation of the assessee. After fresh notice, Shri Rajiv Lumba, Advocate appeared and took adjournment. Thereafter, written objections were filed. The assessee refused to produce the account books on the ground that the Assessing Authority had no jurisdiction to frame assessment. The Assessing Authority rejected the objection as to jurisdiction on the strength of notification dated September 28, 1992 conferring powers of assessing authority on AETC (Inspection). It was observed that the conferment of the said power had already been upheld by the High Court in Devi Dass Gopal Krishan v. . It was further observed that transfer under rule 39A of the case from ETO to AETC (Inspection) was valid. The plea of assessment being time -barred was also rejected. It was observed that the amendment was dated March 3, 1998 prescribing the time -period of three years from the last date for furnishing the last return. The amendment was held to be prospective which did not affect the earlier assessment years for which no time -limit was laid down. The Assessing Authority created a demand of Rs. 1,53,901 in addition to tax of Rs. 3,103 paid by the assessee. The assessee preferred appeals which were dismissed. The appellate authority affirmed the view of the Assessing Authority that limitation prescribed under the Amending Act 12 of 1998 was not applicable to the present case which was for the assessment year 1994 -95. Thereafter, the assessee preferred second appeal before the Tribunal. Main contention raised was that the orders of assessment were after the period of limitation prescribed for assessment and demand for additional tax was without jurisdiction. The Tribunal allowed the appeal vide order dated July 8, 2005. The Tribunal held that the statutory period of three years laid down in the amending Act was applicable and the assessment was time -barred. Observations of the Tribunal are as under: 4.... The learned Counsel for the State is unable to give any reasonable explanation for not completing the assessment within the statutory period of three years as per the latest amendment made in the law. Accordingly, the orders of the appellate authority as well as the Assessing Authority are set aside, the tax liability as per the GTO already deposited by the appellant shall be treated as final and the learned Counsel for the appellant also agrees that he shall not claim any refund at any time. The Revenue filed rectification application under Section 21A(2) of the 1948 Act on November 27, 2006. It was submitted that the Act was amended on March 3, 1998 prescribing the period of limitation but the same could not apply in the case of assessment in question which was prior to the amendment. The amendment had to be treated as prospective in absence of the same being expressly or by necessary implication being retrospective. The Revenue also filed identical application on April 18, 2007. First application was dismissed as not pressed on August 27, 2007 on the ground that another application had been filed and the second application was allowed vide order dated September 6, 2007 which has been impugned in the present writ petition. Therein, it was observed that since prior to amendment, no period was prescribed for framing assessment under Section 11(4) and period prescribed was under Section 11(4) only to proceed to assess, the assessment was not barred by limitation. The Assessing Authority had already proceeded to assess by giving notice dated October 24, 1997. Amendment which came into force only on April 20, 1998 did not have retrospective effect. Matter was governed by old Section 11(4) of the Act. Prayer on behalf of the assessee that in case the order of the Tribunal was to be rectified, the matter should be decided afresh, was also rejected as being beyond the scope of rectification application. Reliance was placed on judgments of this Court in Emkay Industries v. State of Punjab, [2005] 139 STC 57 and Khazan Chand Nathi Ram v. State of Haryana, [2004] 136 STC 261.;