1. Heard Sri Kunwar Saxena, learned counsel for the revisionist and learned Standing Counsel for the respondents.
2. All these trade tax revisions, filed under Section 11(7) of U.P. Trade Tax Act, 1948 (hereinafter referred to as the "Act, 1948") involve common questions of law and fact, and, therefore, as requested and agreed by learned counsel for the parties, have been heard together and are being decided by this common judgment.
3. The disputed year of assessments in these revisions are 1989-90 (U.P.), 1989-90 (Central), 1990-91 (U.P.) and 1990-91 (Central).
4. The revisionist-applicant, M/s Super Fashion Fasteners Pvt. Ltd. Industrial Estate, Partapur, Meerut (hereinafter referred to as the "assessee") is a Company engaged in business of manufacturing and sale of Nylon Polyester and Zip Fasteners. Being a new unit, it claimed exemption under Section 4-A of Act, 1948 for a period of five years commencing from 04.09.1989, the date of first sale. According to assessee, date of production was 01.09.1989. The exemption application was rejected by Divisional Level Committee, Meerut vide order dated 10.03.1992.
5. The assessee preferred revision under Rule 25(3)(c) of U.P. Trade Tax Rules, 1948 (hereinafter referred to as the "Rules, 1948") vide application dated 26.03.1992 which remained pending till October, 1993. In the meantime Assessing Authority endeavored to complete assessment for assessment years 1989-90 to 1992-93 under Act, 1948 as also under Central Sales Tax Act, 1956 (hereinafter referred to as the "Act, 1956"). The assessee faced with this situation, approached this Court in Writ Petition No. Nil of 1993, which was finally disposed of on 15.10.1993 with following order:
"The short prayer of the petitioner is that it made a review application on 26.3.93 against the order dated 10.3.92 rejecting the application for issuing an eligibility certificate made under section 4-A of the U.P. Sales Tax Act, 1948 by respondent no. 2 which is said to be still pending. The contention of the petitioner is that during the pendency of the review application, the respondents are proceeding with the assessment proceedings for the consecutive assessment years 1989-90 to 1992-93 both under U.P. and Central Sales Tax Acts.
Hearing the parties, the petition is disposed of finally directing respondent no. 2 to decide the review application dated 26.3.92 (Annexure No. 3 to the petition) within six weeks from the date a certified copy of this order alongwith a copy of the review application is produced before respondent no. 2 by the petitioner who undertakes to produce the same within a week from today. Further proceedings for the consecutive assessment years 1989-90 to 1992-93 bothy under U.P. and Central Sales Tax Acts will remain stayed for a period of two months, if steps as aforesaid."
6. Despite direction of this Court, Divisional Level Committee did not decide review application within the period of six weeks.
7. In the meantime, Assessing Authority sought to complete assessment for the year 1990-91, (Provincial and Central both), since period of two months for which assessment was stayed by this Court, lapsed in December, 1993 itself. In the circumstances, another Writ Petition No. 374 (Tax) of 1995 was filed. This Court by interim order dated 07.03.1995 stayed assessment proceedings for 1990-91 (Provincial and Central both) and directed Divisional Level Committee to decide review application within two months vide order dated 07.03.1995.
8. Ultimately Divisional Level Committee decided review vide order dated 16.02.1996. It accepted eligibility for exemption on the part of assessee for a period of five years from 04.09.1989 to 03.09.1994. However, the effective exemption was allowed only from 20.07.1992.
9. Aggrieved by part of the order dated 16.02.1996, whereby it had allowed exemption, effectively, from 20.07.1992 only, the assessee preferred appeal under Section 10 of Act, 1948 before President, Trade Tax Tribunal, Lucknow. The appeal was allowed in part vide order dated 20.12.1997 and the order dated 16.02.1996 was modified by Tribunal directing to grant eligibility certificate for tax exemption to assessee unit effective from 05.09.1990 to 03.09.1994.
10. The Tribunal's order was challenged by Commissioner, Trade Tax in Trade Tax Revision No. 52 of 1998 to the extent it had allowed and granted relief to assessee.
11. To the extent relief was not granted to assessee, i.e., instead of 04.09.1989, the Tribunal allowed exemption fron 05.09.1990, the assessee challenged the same in Writ Petition No. 799 (M/S) of 1998.
12. The Court in Writ Petition No. 799 (M/S) of 1998 declined to grant any interim relief but passed interim order dated 11.05.1998 in Trade Tax Revision No. 52 of 1998, staying Tribunal's order dated 20.12.1997.
13. For assessment years in dispute Assessing Authority passed ex parte order of assessment dated 30.03.1998 imposing tax relying on Tribunal's order dated 20.12.1997 and treating exemption effective only from 05.09.1990. Thereagainst, assessee preferred First Appeals No. 1167/98, 1168/98, 1169/98 and 1179/98 on the ground that ex parte assessment order is barred by time but the same were dismissed by First Appellate Authority, i.e., Deputy Commissioner (Appeal)-Second, Trade Tax, Meerut and assessee's Second Appeals No. 92/2001, 93/2001, 94/2001 and 95/2001 have also been dismissed by Tribunal vide order dated 30.05.2001.
14. The common but simple question of law which has been argued before this Court is, "whether assessment made by Assessing Authority is within the period of limitation or not".
15. For the purpose of period of limitation my attention is drawn to Section 21(2), as it stood from time to time. Prior to its amendment made by U.P. Sales Tax (Amendment and Validation) Act, 1982 (hereinafter referred to as "Act, 1982"), Section 21(2) reads as under:
"21(2). Subject to the provisions of this Section, no order of assessment under any provision of this Act for any assessment year shall be made after expiration of four years from the end of such year.
Provided that the assessment for the assessment years 1974-75 and 1975-76 may be made up to March 31st 1982."
16. By U.P. Sales Sales Tax (Amendment and Validation) Act, 1982, U.P. Act No. 4 of 1982, sub-section (2) of Section 21 was substituted and was given deeming effect from 01.11.1978. the substituted provision reads as under:
"21(2). Except as otherwise provided in this Section, no order of assessment or reassessment, under any provision of this Act for any assessment year shall be made after expiration of four years from the end of such year.
Provided that assessment or reassessment for the years 1974-75, 1975-76 and 1976-77 may be made by 31st March 1982."
(emphasis added)
17. Next amendment came by U.P. Act No. 8 of 1992 w.e.f. 01.01.1992 and sub-section (2) of Section 21 as substituted then, reads as under:
"21(2). Except as otherwise provided in this Section, no order of assessment or reassessment, under any provision of this Act for any assessment year shall be made after expiration of four years from the end of such year.
Provided that . . . . . . . involve a change of opinion.
Provided further that assessment or re-assessment for the assessment year 1987-88 may be made by March 31st 1993."
(emphasis added)
18. Next amendment came by U.P. Act No. 31 of 1995, w.e.f. 14.03.1995 and certain words were substituted. The substituted provision reads as under:
"21(2). Except as otherwise provided in this Section, no order of assessment or reassessment, under any provision of this Act for any assessment year shall be made after expiration of three years from the end of such year or March 31st 1996 whichever is later.
Provided that . . . . . . . . change of opinion.
Provided also that assessment or re-assessment for the assessment year 1989-90 may be made by March 31st 1995."
19. Next amendment came to be made by U.P. Act No. 11 of 1997, w.e.f. 08.08.1997 and Section 21(2) then reads as under:
"21(2). Except as otherwise provided in this Section, no order of assessment or reassessment, under any provision of this Act for any assessment year shall be made after expiration of two years from the end of such year or March 31st 1998 whichever is later."
20. For the purpose of assessment year 1989-90 and 1990-91 no other amendment has been brought to the notice of this Court so as to have any consequence in the cases in hand.
21. The simple argument advanced by Sri Kunwar Saxena, learned counsel for the revisionist, is that assessment orders, in all these four cases, have been passed on 30.03.1998 though limitation to pass the same expired on 31.03.1996 in view of Section 21(2) of Act, 1948, as it stood after amendment by U.P. Act No. 31 of 1995. Once limitation expired, there was no question of treating assessment proceedings pending so as to take advantage of amendment made by U.P. Act No. 11 of 1997 and, therefore, assessment orders passed on 30.03.1998 cannot be held to be valid and well in time by relying on Section 21(2) as it came to be substituted w.e.f. 08.08.1997 by U.P. Act No. 11 of 1997 for the reason that nothing was pending on that date, the limitation having expired on 31.03.1996. The limitation once expired, cannot be revived.
22. The basic period of limitation for passing an order of assessment initially has been four years. However, the Legislature in respect of certain assessments, which otherwise must have become barred by time permitted the same to be completed by Assessing Authority by a particular date.
23. Sub-section (2) of Section 21 of Act, 1948, as it was prior to amendment by Act, 1982 shows that the period of limitation was prescribed only in respect of "order of assessment" (not reassessment) but then for the Assessment Years 1974-75 and 1975-76 for which limitation expired on 31.3.1980, Legislature permitted the same to be completed by 31.3.1982 vide proviso thereto.
24. Then it was substituted by U.P. Act, No. 4 of 1982 with effect from 1.11.1978. The major change in Sub-section (2) is that besides the "order of assessment", it also talked of "order of re-assessment". Meaning thereby, earlier for the order of re-assessment, the aforesaid provision did not contemplate any limitation but now it was provided similar to that of order of assessment. Then again, I find that by virtue of proviso, limitation of four years which expired in respect of certain specific years, i.e., 1974-75, 1975-76 and 1976-77 on 31.3.1981, was extended till 31.3.1982.
25. In fact, the Statute has not extended period of limitation but separate period has been prescribed in respect of Assessments Years specified in the proviso. In other words, specifically Assessing Authorities have been empowered to make assessment in certain cases till a particular date which is longer than the general period of limitation prescribed under Section 21(2).
26. Subsequent amendments made by U.P. Act No. 8 of 1992 and 31 of 1995 are also pari materia except that under the proviso specified Assessment Years have been said differently. I find that by U.P. Act, No. 8 of 1992, Legislature provided a period of limitation for assessment or re-assessment for the Assessment Years 1987-88 upto 31.3.1993 and similarly by U.P. Act. No. 31 of 1995, this period with respect to Assessment Years 1989-90 has been provided upto 31.3.1995.
27. The argument of learned counsel for revisionist, if considered only in the light of U.P. Act No. 31 of 1995, it cannot be doubted that assessment made for the year 1989-90 on 30.3.1998 is apparently barred by time, but then I have the benefit of a further U.P. amendment by U.P. Act No. 11 of 1997 which has substituted entire Sub-Section (2) of Section 21 and provides that an order of assessment or re-assessment under any provision of the Act of any Assessment Year can be made after expiry of two years from the end of such year or 31.3.1998, "whichever is later". The Legislature has drafted Sub-section (2) this time so as to exclude the necessity of proviso inasmuch in all the matters, where limitation would have expired otherwise, the same has been permitted to be made upto 31.3.1998.
28. The difference between Sub-section (2) of Section 21 as came to be substituted by U.P. Act No. 31 of 1995 and 11 of 1997 is that the former provides a general limitation of three years or 31.3.1996, but for the Assessment Year 1989-90, it provides limitation upto 31.3.1995. So long as this proviso was available in the Statute, an order of assessment, if not already passed upto 31.3.1995 in respect of Assessment Year 1989-90, none could have been passed thereafter or if passed after 31.3.1995, would have been barred by time. This provision however has been substituted by another provision though the same has been given effect with effect from 8.8.1997. The substituted provision, which came into existence by U.P. Act No. 11 of 1997 provides limitation in totally a different manner. In all the matters, irrespective of whether limitation has already expired or not, it contemplates that assessment and re-assessment orders can be passed upto 31.3.1998.
29. The right conferred or derived by a Statute providing limitation is statutory right. If it is taken away by an amendment in the Statute, unless its validity is challenged and it is struck down, the same has to be looked into in the light of the Statute itself.
30. Even otherwise, in the matter of limitation, it is said that the limitation only deprives the remedy and not the right. When a limitation expires in the matter of assessment etc. it would deprive Assessing Authority to pass an order in respect of a particular period, though cause to pass an order exists and continues. Due to applicability and availability of a provision providing limitation, Authority concerned cannot pass an order of assessment or re-assessment, but as soon as that disability is lifted, either by amendment in the Statute or otherwise, the Authority can always proceed to exercise its statutory function. There is a general exposition of law that limitation once expired will not revive, but that will have no application to the present case inasmuch it is not a case of revival of limitation, but prescription of limitation in a different manner. It has the effect of providing a longer period of limitation by amendment in the Statute. Since the validity of U.P. Act No. 11 of 1997 is not under challenge, in my view, the question of limitation in the case in hand in respect of Assessment Years in dispute has to be examined by simply going through Section 21 (2) as has been substituted in the Statute by U.P. Act, No. 11 of 1997 and if it is considered from the said angle, it is difficult to hold that the order of assessment passed on 30.03.1998 are barred by time.
31. In the circumstances, the question formulated above, is answered against Assessee.
32. All the revisions are dismissed with cost, which I quantify to Rs. 2,000/- for each set of revision.
Dt. 04.07.2014 AK/PS