IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH VATAP No. 37 of 2008 Date of Decision: September 5, 2009 M/s Rattan Coach Builders .... Appellant Versus State of Punjab & another .... Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. K.L. Goyal, Senior Advocate, with Mr. Manoj Kumar Rohilla, Advocate, for the appellant. Ms. Sudeepti Sharma, DAG Punjab, for the respondents. 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This order shall dispose of VATAP Nos. 37, 39 and 54 of 2008, filed under Section 68(2) of the Punjab Value Added Tax Act, 2005 (for brevity, 'VAT Act') as common questions of law and facts are involved. VATAP Nos. 37 and 39 of 2008 have been VATAP No. 37 of 2008 filed against the common order dated 28.1.2008 passed by the Value Added Tax Tribunal, Punjab, Chandigarh (for brevity, ‘the Tribuna’) in Appeal (VAT) No. 251 of 2006-07 and 250 of 2006- 07 respectively, in respect of assessment year 2001-02, whereas VATAP No. 54 of 2008 has been filed challenging order dated 11.4.2008 passed by the Tribunal in Appeal No. 37 of 2007-08 in respect of assessment year 2001-02. FACTS RE: VATAP No. 37 & 39 OF 2008: 2. The appellant(s) in VATAP Nos. 37 and 39 of 2008 are engaged in the business of manufacturing and sale of bus bodies. The business of the appellant(s) is to build bus body on receiving orders and to mount them on the chassis purchased by the owner of the vehicles. They in no way connected with the sale of any motor vehicle. The appellant(s) filed their returns and deposited the tax @ 8%. On 13.1.2006, the Assessing Authority framed the assessment in respect of assessment year 2001-02. After allowing deductions relating to RD Sales and deduction under Section 29(xii), the Assessing Authority assessed the turnover of the appellant(s) @ 12% plus surcharge because according to him all types of motor vehicles including their chassis and bodies fall under Schedule-A of the Punjab General Sales Tax Act, 1948 (for brevity, ‘PGST Act’). The Assessing Authority assessed an additional tax of Rs. 22,670/- in the case of appellant of VATAP No. 37 of 2008 and Rs. 59,404/- in the other case (VATAP No. 39 of 2008). Other than this penalty of Rs. 3,000/- 2 VATAP No. 37 of 2008 and Rs. 6,000/- under Section 10(6) of PGST Act and interest of Rs. 20,856/- and Rs. 54,652/- respectively were also imposed. In this manner, total tax demand of Rs. 46,527/- and Rs. 1,20,256/- in VATAP Nos. 37 and 39 of 2008 were created, vide order dated 13.1.2006. 3. The appellant(s) preferred appeals before the Deputy Excise and Taxation Commissioner (Appeals), Ludhiana Division, Ludhiana, which were dismissed vide order dated 18.8.2006. Thereafter, the appellant(s) filed further appeals before the Tribunal challenging the order of the Appellate Authority. The Tribunal upheld the order of the Appellate Authority and dismissed the appeals vide order dated 28.1.2008. The appellant(s) have approached this Court against the order dated 28.1.2008 raising the following questions of law for determination of this Court:- “(i) Whether the bus bodies being sold by the appellant are covered under Entry 57 of Schedule-A attached to the PGST Act 1948 and hence liable to be taxed @ 12%? (ii) Whether on the facts and in the circumstances of the case, the assessment framed by the Assessing Authority is barred by period of limitation? (iii) Whether on the facts and in the circumstances of the case, the levy of penalty under section 10(6) is sustainable in view of the binding judgments 3 VATAP No. 37 of 2008 of this Hon’ble Court and the Hon’ble Supreme Court of India? (iv) Whether on the facts and in the circumstances of the case, the levy of interest is sustainable in view of the binding judgments of this Hon’ble Court and the Hon’ble Supreme Court of India? FACTS RE: VATAP No. 54 OF 2008: 4. In this case, the appellant filed its returns of sales for the year 2001-02. The last return for the assessment year 2001-02 was due on 30.4.2002 and the same was filed before that date. On 21.7.203, proceedings of assessment in respect of assessment year 2001-02 were initiated by the Assessing Authority and final order was passed by him on 30.6.2005 (A-1). A tax demand of Rs. 61,628/- was raised on the ground that information regarding consignment sale was not furnished at the Information Collection Centre at exit points. In addition to the tax, a penalty of Rs. 75,000/- under Section 10(7) was also imposed. In this manner, a total demand of Rs. 1,36,628/- was raised. On appeal filed by the appellant the matter was remanded back to the Assessing Authority vide order dated 25.4.2006. Against the said order, the appellant approached the Tribunal, who vide order dated 21.1.2006, directed the Appellate Authority to decide the matter himself. The appeal was dismissed vide order dated 23.4.2007. Eventually, appeal was filed before the Tribunal, which has been dismissed vide order dated 11.4.2008. In the instant appeal, the appellant has raised the 4 VATAP No. 37 of 2008 following questions of law:- (i) Whether an assessment of the dealer for Assessment Year 2001-02 made under section 11(3) of the PGST Act, 1948 on 30.6.205, i.e. after the expiry of three years from the last date of filing of Return is time barred and therefore, not sustainable in the eyes of law? (ii) Whether the Punjab General Sales Tax (Amendment and Validation) Act, 2005 (Act No. 10 of 2005) is liable to be declared non-est and unenforceable, as the Act sought to be amended by this Amending Act, has already been repealed and amendments proposed to be made by it cannot be made therefore? (iii) Whether, on the facts and circumstances of the case, any assessment can be made after 30.4.2005 for year 2001-02, is valid in the eyes of law when the Amending Act provides that all the provisions of the Amending Act including Section 11CC shall remain in force only upto 11th day of September 2002 and not beyond that? 5. At the outset Mr. K.L. Goyal, learned senior counsel for the appellant(s) has given up question No. (i) in VATAP Nos. 37 and 39 of 2008 concerning levy of tax at the rate of 12% on the 5 VATAP No. 37 of 2008 bus bodies and confined his arguments on the issue whether assessment in respect of the assessment year 2001-02 could have been made after expiry of three years from the last date of filing of return. 6. Having heard learned counsel for the parties we find that the issues raised in these appeals are no longer res integra. In the case of Bharat Petroleum Corporation Ltd., Patiala v. State of Punjab & another (VATAP No.78 of 2008, decided on July 21, 2009) somewhat similar issues came up for our consideration. In that case after examination of pleadings of the parties, statutory provisions, rival contentions of the parties as well as judgments of Hon’ble the Supreme Court rendered in the cases of Punjab Dairy Development Board v. Cepham Milk Specialities Limited, (2004) 8 SCC 621; S.S. Gadgil v. Ms. Lal Chand and Company, AIR 1965 SC 171; State of Rajasthan v. Mangilal Pindwal, AIR 1996 SC 2181; National Agricultural Corporation Marketing Federation of India Ltd. v. Union of India, (2003) 5 SCC 23; K.M. Sharma v. I.T.O., (2002) 4 SCC 339 and N.C. Dhoundial v. Union of India, (2004) 2 SCC 579; a Division Bench judgment of this Court rendered in the case of Shreyans Industries Ltd. v. State of Punjab, (2008) 18 VAT and Service Tax Cases 493 (Punjab & Haryana); Division Bench judgment of Karnataka High Court rendered in the case of Combined Industries Ltd. v. State of Karnataka, (1999) 112 STC 225, following questions of 6 VATAP No. 37 of 2008 law were framed by us:- “(A) Whether after repeal of PGST Act, 1948 w.e.f. 1.4.2005 by the repealing Section 92(1) of the Punjab VAT Act, any amendment was valid for extending the period of limitation from three years to five years by promulgation of Section 11CC by Punjab Act 10 of 2005 which came into force w.e.f. 12.5.2005. (B) Whether the rights vested in the assessee acquired on 30.4.2005 would extinguish by an amendment made by Act No. 10 of 2005 w.e.f. 12.5.2005 although the amendment has not been given retrospective effect or could the time barred assessment be re-opened on the basis of statutory extension of time.” After detailed discussion, we have already answered t he aforementioned questions in favour of the dealer and against the revenue in the case of Bharat Petroleum Corporation Ltd., Pati- ala (supra). We find that the instant appeals are squarely covered by the judgment rendered in the case of Bharat Petroleum Corpo- ration Ltd., Patiala (supra). Accordingly, following the same reasoning and principle of law these appeals are allowed in terms of the judgment rendered in the case of Bharat Petroleum Corpo- ration Ltd., Patiala (supra). 7 VATAP No. 37 of 2008 (M.M. KUMAR) JUDGE (JASWANT SINGH) September 5, 2009 JUDGE Pkapoor 8