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HIGH COURT OF DELHI
JUDGMENT
KUMAGAI SKANSKA HCC ITOCHU GROUP ..... Petitioner
Advocates who appeared in this case:
For the Appellant : Mr Rajesh Jain, Ms Neetika Khanna and Mr Sumit Batra
For the Respondent : Mrs Avnish Ahlawat and Mr Nitesh Kumar Singh
HON'BLE MR. JUSTICE V.K. JAIN
1. We have heard the learned counsel for the parties at great length. Review of our judgment dated 22.05.2012 has been sought by the respondents / review petitioners. By virtue of our said judgment, we had taken the view that a revision under the Delhi Value Added Tax Act, 2004 initiated after 01.04.2005 would have to be governed by the period of limitation of four years prescribed in Section 74A(2)(b) of the DVAT Act, 2004. We had repelled the contention of the respondents that it would be the period of five years prescribed under Section 46 of the Delhi Sales Tax Act, 1975, (hereinafter referred to as the 1975 Act) 2014:DHC:2330-DB which would apply. We had given several reasons as to why we had come to the said conclusion.
2. However, we note that in our said judgment dated 22.05.2012 the provisions of Section 106 which we had quoted and considered only pertained to sub sections (1), (2) and (3). It has now been brought to our notice that sub section (4) has been added to Section 106 of the DVAT Act, 2004 by virtue of the Delhi Value Added Tax (Amendment) Act, 2012 which was passed by the Legislative Assembly of the National Capital Territory of Delhi on 12.01.2012 and notified on 13.02.2012. Furthermore, the said amendment to Section 106 was brought about with retrospective from the 1st day of April, 2005. In other words, sub-section (4) of Section 106 which was introduced by the said Amendment Act would be applicable from the very inception of the DVAT Act, 2004, that is, from 01.04.2005. The entire Section 106 including the newly added sub-section (4) reads as under:-
3. On a plain reading of sub-section (4) of Section 106 of the DVAT Act, 2004, insofar as it applies to a case of revision, it would be evident that notwithstanding the repeal of the 1975 Act, for the purposes of a revision which relates to any period ending before the 1st day of April, 2005 or for any other purpose connected with or incidental to such revision, the repealed Act, (i.e., the 1975 Act) would continue to have effect as if the DVAT Act, 2004 had not been passed. It is absolutely clear that the entire provision of revision as contemplated under Section 46 of the 1975 Act including the period of limitation prescribed therein would be applicable to such revisions notwithstanding the repeal of the said Act by the DVAT Act, 2004.
4. This had not been noticed by us in the judgment dated 22.05.2012. Consequently, we recall the said decision. The learned counsel for the petitioner, however, submits that apart from limitation they had also challenged the issuance of the show cause notice dated 02.02.2010 on other grounds. Since we had not examined those other grounds in view of our conclusion on limitation, we feel that it would be appropriate that the matter be now placed before the roster Bench for a decision on those matters.
5. We may also put on record that the learned counsel for the petitioner had placed reliance on the decision of a Division Bench of the Gujarat High Court in Ravi Electronics v. Assistant Commercial Tax Commissioner: (2013) 63 VST 414 (Guj). However, we are of the view that the said decision of the Gujarat High Court may have applied in the absence of a provision like Section 106(4) of the DVAT Act, 2004 but, it certainly would not have application when sub-section (4) of Section 106 clearly points in a different direction. The learned counsel for the petitioner had also submitted that unless the prescription with regard to limitation is specifically saved, the limitation prescribed in the repealing Act would apply. We also do not agree with this submission in view of the clear and unequivocal terms of sub-section (4) of Section 106 which specifically deals with purposes connected with and / or incidental to revision which, in our view, would also include the prescription with regard to limitation. The learned counsel for the petitioner had also referred to a judgment of the Supreme Court in the case of Thirumalai Chemicals Ltd v. Union of India: 2011 (268) ELT 296 (SC). In our view that decision would also not come to the aid of the petitioner.
6. As pointed out above, the judgement dated 22.05.2012 is recalled. The matter be placed before the roster Bench on 19.05.2014 in the first instance for a decision on the other grounds taken by the petitioner. The stay which was operating till the decision dated 22.05.2012 shall continue to operate till the disposal of the writ petition.
BADAR DURREZ AHMED, J V.K. JAIN, J MAY 02, 2014 SU