Point of Law: Sub section (3) of Section 64 of the VAT Act, 2005 saved only those proceedings relating to assessment, appeal, revision or other proceeding arising under the HPGST Act, 1968 or the rules made thereunder which were pending before the competent authority under the said Act on the date of coming into force of the VAT Act, 2005.

ORDER :

Satyen Vaidya, J.

The petitioner, in execution of its work–contracts, supplied steel to the contractors. The Assessing Authority, Shimla vide order dated 12.02.2001 burdened the petitioner with sales tax liability to the tune of Rs.10,82,953/- for the years 1995-96, 1996-97 and 1997-98 by treating supply of steel to the contractors as sale. Petitioner assailed the aforesaid order of Assessing Authority before the Additional Excise & Taxation Commissioner-cum- Appellate Authority (South Zone), Himachal Pradesh, Shimla under Section 30 of the Himachal Pradesh General Sales Tax Act, 1968 (for short ‘Appellate Authority’). The appeal of petitioner was allowed on 10.10.2002. It was held that neither the sale nor transfer of goods could be said to have taken place between petitioner and the contractor at any stage of the contract. The order of Assessing Authority was set-aside so also the demand created thereby.

2. In 2009, the Excise & Taxation Commissioner-cum- Revisional Authority, Himachal Pradesh, Shimla (for short ‘Revisional Authority’), suo-motu entertained the revision petition under Section 31 (1) of the Himachal Pradesh General Sales Tax Act, 1968 (for short ‘HPGST Act’) and vide order dated 26.05.2011 set-aside the order dated 10.10.2002 passed by the Appellate Authority. The demand created by the Assessing Authority vide assessment order dated 10.02.2001 was accordingly upheld.

3. Petitioner assailed the order dated 26.05.2011 passed by the Revisional Authority before the Himachal Pradesh Tax Tribunal, Dharamshala, Camp at Shimla (for short ‘Tribunal’) under Section 46 (3) of the Himachal Pradesh Value Added Tax Act, (for short ‘VAT Act’), 2005. One of the contention raised before the Tribunal, on behalf of petitioner, was that Section 46 (1) of the VAT Act, 2005, barred the exercise of the revisional powers after five years from the date on which the order sought to be revised was communicated. Since the Revisional Authority had exercised revisional power suo motu after seven years, the order passed by the Revisional Authority suffered from illegality and deserved to be set-aside.

4. Learned Tribunal rejected the aforesaid contention of the petitioner on the ground that the Revisional Authority had exercised the revisional power under Section 31 (1) of the HPGST Act, 1968 which was saved under Section 64 (3) of the VAT Act, 2005 and since no limitation was provided under the HPGST Act for exercise of revisional jurisdiction, the limitation provided under sub-Section (1) of Section 46 of the VAT Act, 2005 would not be applicable.

5. Aggrieved against the order dated 28.7.2016 passed by the Tribunal in Revision No. 03/2011, petitioner has approached this Court by way of instant petition on the following questions of law:

1. Whether assessment which has been accepted long ago, say about seven years ago can be reopened by exercising the powers under Section 321(1) of the HP General Sales Tax Act 1968 with Section 46 (1) of the HP Value Added Tax Act, 2005.?

2. Whether the Learned Tribunal below has taken into consideration this fact that suo-mote revision proceedings initiated by the Learned Exercise & Taxation Commissioner-Com Revisional Authority were not maintainable on the ground that the Department had not initiated any proceedings against the appellant Under Section 31(1) of the HP GST Act 1968 with section 46 (1) of the Himachal Pradesh value Added Tax Act, 2005 within a reasonable period?

3. Whether the Learned appellate Authority as well as the Learned Tax Tribunal below have ignored that fact that the petitioner is not a dealer in this case and hence not liable to pay sales Tax for issue of torque steel to his contractor as clause 10 of the form CPWD 7/8 prescribed that the material issued to the contractor had to remain absolute property of Govt. of India and the goods used could not be used for any other purpose and the contractor was only custodian of the material as per contract between the department and cont