HMT LIMITED Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) WE have heard learned counsel for the petitioner and the State counsel at some length. The affidavits have been exchanged. Learned counsel for the parties agree that the petition itself may be finally disposed of at this stage. The petitioner, by means of this petition, has impugned the order dated March 18, 1993, passed by the Commissioner/additional Commissioner, Sales Tax, U. P. , a copy of which has been filed as annexure 4 to the writ petition, by which it has been provided that assessment for the assessment year 1984-85 be reopened and reassessment be made, thus exercising the powers vested under proviso to sub-section (2) of section 21 of the U. P. Trade Tax Act referred the matter to the Assistant Commissioner, Assessment-II, Saharanpur. The order of assessment dated March 31, 1993, contained in annexure 5 to the writ petition, passed on the reassessment proceedings has also been challenged. The contention raised on behalf of the learned counsel for the petitioner is that the matter pertains to the assessment year 1984-85 and the period of limitation as then existed for the purpose of reopening of assessment had come to an end on expiry of four years that is to say in the year 1989. The proviso to sub-section (2) of section 21 of the U. P. Trade Tax Act was substituted by U. P. Act No. 28 of 1991 which came into force on February 19, 1991. It is submitted that the subsequently amended provision will not affect the limitation which had already expired for the purpose of reassessment. In support of the contention the learned counsel for the petitioner has placed reliance upon a Division Bench decision of this Court reported in 1994 UPTC 115 (Chopra Diesel Spare v. State of U. P. ). In the abovenoted decision this question was directly considered as to whether the period of limitation could be extended subsequent to its expiration, by means of amendment or not. After considering a number of decisions on the point it was held that the vested rights cannot be divested by a subsequent amendment. In that view of the matter the order of the Commissioner passed under proviso to sub-section (2) of section 21 of the U. P. Trade Tax Act is illegal. Similar view was later on taken by another Division Bench of this Court in the case reported in (1995) 21 STR 99 (Rajiv Kumar and Brothers v. State of Uttar Pradesh ). Learned counsel for the petitioner has also placed reliance on a decision of the honourable Supreme Court reported in [1969] 72 ITR 595 (J. P. Jani, Income-tax Officer, Circle IV. Ward G. Ahmedabad v. Induprasad Devshanker Bhatt ). In that case, which related to the Income-tax Act, a similar view was taken on the question of reopening of the assessment after expiry of the period of limitation. The position is thus clear that in those cases where the limitation of four years, as then existed, had expired before coming into force the amendment by Act No. 28 of 1991, reopening of the assessment is without jurisdiction. It is also submitted by the learned counsel for the petitioner that no appeal lies against an order passed under section 21 of the U. P. Trade Tax Act initiating an enquiry for assessment which is clearly so provided under section 10-A of the Trade Tax Act, and for that reason no appeal has been filed against the order of the Additional Commissioner dated March 18, 1993, contained in annexure 4 to the writ petition, which has also been impugned in the present writ petition. On behalf of the State the petition has been first resisted on the ground of availability of alternative remedy and it is submitted that since the appellant has already preferred an appeal he has availed of the alternative remedy and the same should be pursued by the petitioner. It is true normally the court does not interfere in such matters nor entertains the simultaneous proceedings once the alternative remedy is availed of. Learned counsel for the petitioner, however, submitted that the departmental authorities feel bound by die orders passed by the higher departmental authorities and no interference is made in those orders thus rendering the alternative remedy illusory and nugatory. Sri Bharatji Agrawal, appearing for the petitioner, also submits that the order of the Additional Commissioner dated March 18, 1993, as contained in annexure 4 to the writ petition, cannot be set aside by the appellate authority as it has been issued by a higher departmental authority. The apprehension of the petitioner seems to be justified in view of said order. The departmental authorities did not pass the orders impugned in this petition following the decision of this Court in the cases noted above wherein it has been very clearly laid down by this Court, as indicated above, that where the period of limitation has already expired the proceedings cannot be reopened for reassessment under the proviso to sub-section (2) of section 21 of the U. P. Trade Tax Act. The assessing authority seems to have passed the order following annexure 4, the order passed by the Additional Commissioner. In this regard the petitioner has raised the legal plea in paras 16 and 17 of the writ petition which are quoted below : " 16. That a Division Bench of this honourable Court in the case of Hargu Charan Srivastava v. Commissioner of Income-tax [1979] 119 ITR 622; 1979 UPTC 852 has held in para 9 that any amendment in regard to the period of limitation was/is retrospective in the sense that it is applicable to all those matters which are pending and which has not become closed or dead and where in a particular proceeding period of limitation was still running the amended provision enlarging the period of limitation would apply. 17. That, however, section 20 of U. P. Act No. 28 of 1991 (which has been reproduced above) clearly goes to show that section 20 (a) makes an amendment in section 21 (1) of the Act with retrospective effect, with effect from March 1, 1973, while clause (b) of the same section 20 of the U. P. Act No. 28 of 1991 has made amendment prospective which has made further clear from section 1 (2) of U. P. Act No. 28 of 1991. " The above paragraphs have been replied by the opposite parties in the following manner : " 13. That in regard to para 16 of the writ petition it is stated that the case as mentioned in para under reply related to specific facts and the same is not applicable. 14. That the contents of para 17 of the writ petition are denied. It is stated that in case the interpretation advanced by the petitioner is sustained the amendment becomes redundant. As a matter of fact legislative wisdom cannot be interpreted in such a way as to bring about the redundancy of any provisions as incorporated by way of the amendment. In the circumstances the order passed by the Additional Commissioner, Sales Tax, granting permission for appropriate proceedings under section 21 of the Act is in accordance with letter and spirit of the newly added section of the proviso to section 21 of the Act. " It is strange despite the decisions and pronouncements made by this Court the departmental authorities seem to be taking entirely contrary view and it has nowhere been indicated in the counter-affidavit that the department had appealed against any of the orders or judgments passed by this Court in the cases noted above. WE would like to observe that once the law is declared by this Court through judicial pronouncement all the authorities and Tribunals are bound by such pronouncement. The practice which is adopted by the Tribunals and other authorities by not acting in accordance with judicial pronouncements has always been deprecated. Thus in view of what has been discussed above we find that the petitioner is not unjustified in entertaining apprehension that he would not get justice at the hands of the departmental authorities even though the law has been clearly declared by this Court in several decisions indicated above as well as by the honourable Supreme Court in similar matter relating to Income-tax Act. In these circumstances we repel the argument raised on behalf of the State about the alternative remedy and facts and circumstances justify entertaining the writ petition under article 226 of the Constitution. In me result we allow the writ petition with costs and set aside the impugned order passed by the Additional Commissioner, as contained in annexure 4 dated March 18, 1993 as well as the assessment order dated March 31, 1993, as contained in annexure 5 to the writ petition. Writ petition allowed. .