Limitation being a matter of procedure, only that law that is applicable at the time of filling the appeal so sec 74A(2)(b) of DVAT would apply

THE HIGH COURT OF DELHI AT NEWDELHI

% Judgment delivered on: 22.05.2012

+ W.P.(C) 974/2010

KUMAGAI SKANSKA HCC ITOCHU GROUP … Petitioner

Versus

THE COMMISSIONER OF VALUE

ADDED TAX & ANOTHER ... Respondents

Advocates who appeared in this case:

For the Petitioners : Mr Rajesh Jain with Ms Neetika Khanna

For the Respondent : Mr Avnish Ahlawat with Ms Latika Choudhary

CORAM:-

HON’BLE MR JUSTICE BADAR DURREZ AHMED

HON’BLE MR JUSTICE V.K. JAIN

BADAR DURREZ AHMED, J

1. By way of this writ petition, the petitioner has challenged the show cause notice dated 02.02.2010 pertaining to the assessment year 2003-2004 primarily on the ground that the said show cause notice is barred by time. By virtue of the said show cause notice dated 02.02.2010, the petitioner has been called upon to show cause as to why the assessment order dated 24.02.2005 in respect of the year 2003-04 be not revised under Section 16 of the Delhi Sales Tax on Works Contract Act, 1999 read with Section 46 of the Delhi Sales Tax Act, 1975.

2. Before we deal with the submission raised on behalf of the petitioner on the point of limitation, it would be necessary to notice certain facts.

3. Earlier, as mentioned above, in respect of the year 2003-04, the Sales Tax Officer had passed an assessment order on 24.02.2005. As a result of the said assessment order, refund became due to the petitioner. Shortly thereafter, on 02.03.2005, the petitioner filed a refund claim in respect of a sum of ` 1,78,58,291/-.

4. The refund, however, was not made to the petitioner. Instead, on 05.07.2007 a notice was issued to the petitioner for re-assessment in respect of the year 2003-04. This notice was purportedly sent under section 24 of the Delhi Sales Tax Act, 1975.

5. The petitioner challenged the issuance of the said notice dated 05.07.2007 by way of writ petition being W.P. (C) No. 8526/2008. During the pendency of the writ petition the respondents were directed to deposit a sum of ` 1,78,58,219/- with the Registrar of this court. The said writ petition was finally decided by virtue of the judgment and order dated 25.11.2009. The Division Bench noted that the notice had been issued purportedly under section 24 of the Delhi Sales Tax Act. The said section also contained a provision in sub-section (2) with regard to the limitation for the passing of an order of assessment, re-assessment or re-computation under sub-section (1) of section 24. Section 24(2)(a) specifically provided that an order of re-assessment could not be made after the expiry of four years. The provision also indicated that in certain cases the period of limitation was not four years but six years. The six years’ period could be invoked only when there was concealment or omission or failure on the part of the assessee to disclose fully the particulars with regard to the turnover. The Division Bench in its judgment dated 25.11.2009 specifically noted that the case was not one where the assessee had not disclosed full particulars and therefore the limitation prescribed under section 24(2)(a) should actually be four years from the date of the final assessment order and not six years. Having determined that the period of limitation would be four years, the Division Bench came to the conclusion that inasmuch as the period of four years had already expired on 23.02.2009, the re-assessment itself had become time barred and therefore it would not be permissible for the assessing officer to proceed on the basis of the notice dated 05.07.2007 and pass the re-assessment order.

6. In view of this clear finding by the Division Bench, it was felt that it would not be necessary to go into the other issues raised in the writ petition. Consequently, the Division Bench by virtue of its order dated 25.11.2009 passed in W.P. (C) 8526/2008 set aside the re-assessment proceedings on the ground of limitation alone. It was also directed that a sum of ` 1,78,58,219/- which had become refundable as a result of the original assessment and had already been deposited by the respondents in this court, pursuant to the directions given on 15.12.2008, be released to the petitioner by the Registrar along with any interest accrued thereon. The Division Bench also gave liberty to the petitioner to make a claim with regard to the interest for the past period.

7. We are informed by the learned counsel for the petitioner that such a claim was made and it has not yet been disposed of. In any event, the said sum of ` 1,78,58,219/- along with interest accrued thereon had been withdrawn by the petitioner subsequent to the judgment and order dated 25.11.2009.

8. It was also pointed out by the learned counsel for the petitioner that in the case of International Metro Civil Contractors v. Commissioner of Sales Tax/Vat and another: (2008) 16 VST 329 (Delhi), a Division Bench of this Court had arrived at the following conclusion:-

“It is true that a fresh power of revision was conferred on the Commissioner by an amendment brought about to the DVAT Act on November 16, 2005 when section 74A was inserted in that Act but this did not resuscitate or resurrect the long-dead revisionary power conferred on the Commissioner under section 46 of the DST Act. It had no retrospective effect.”

9. At this juncture, we may point out that the Delhi Value Added Tax Act, 2004 (hereinafter referred to as the DVAT Act) had come into force with effect from 01.04.2005 and the earlier Act, that is, the Delhi Sales Tax Act, 1975 had been repealed. The power of revision under the old act was under Section 46 thereof. However, there was no provision for revision under the DVAT Act as it was initially introduced. It is only by way of a subsequent amendment, with effect from 16.11.2005, that section 74A, which gave the power of revision to the Commissioner, was introduced. The Division Bench in International Metro Civil Contractors (supra) held that section 74A did not have any retrospective effect.

10. Thereafter, an amendment was brought about in section 74A of the DVAT Act by virtue of a notification dated 06.01.2010. The amendment was to the extent that after sub-section (4) of Section 74A a new sub-section (5) was added. The said sub-section (5) which was inserted in Section 74A reads as under:-

“(5) Notwithstanding anything contained in any judgment, decree or order of any court, the provisions of this section shall be deemed to have come into effect with effect from 1st April, 2005.”

11. Thus, as a result of the said amendment, section 74A was given retrospective effect from 01.04.2005 and therefore the gap in the revisionary power of the Commissioner which had existed hitherto had been plugged.

12. There were several matters pending before this court with regard to the interpretation and applicability of Section 74A of the DVAT Act. The present petition was also tagged alongwith those petitions. By an order dated 01.11.2010, a Division Bench of this court observed as under:-

“23. From the submissions raised at the Bar, it is noticeable that the legislature has initially introduced Section 74A w.e.f. 24.11.2005 and after the decision was rendered in International Metro Civil Contractors (supra) has brought the said Section into effect from 1.4.2005. The question that emerges is whether by such incorporation with retrospective effect the revisional power is saved. That apart there has been a debate with regard to the interpretation placed by the Division Bench under Section 106 of the Act. ...”

13. Ultimately, the Division Bench, by its order dated 01.11.2010 directed that the matters be placed before Hon’ble the Chief Justice for constitution of an appropriate Larger Bench in the following manner:-

“24. In view of the aforesaid, we are disposed to think that the decisions rendered in International Metro Civil Contractors (supra) and LG Electronics (India) Ltd. (supra) require reconsideration by a larger Bench apart from the fact that there has to be an authoritative pronouncement of law on this score. We are disposed to think so as the legislature has presumed that the Division Bench possibly would have upheld the action had the amendment would have (sic) come into effect w.e.f. 1.4.2005. That apart, learned Additional Solicitor General has seriously contended that the interpretation placed on Section 106 is not correct and the said submission has been seriously opposed by Mr. Ganesh, learned senior counsel for the petitioners. Ordinary, we would have proceeded to address the same but the first question, we are inclined to think, really requires to be addressed. 24.(sic) In view of the preceding analysis, let this matter be

placed before the Hon’ble Chief Justice for constitution of an appropriate larger Bench.”

14. Thereafter, by virtue of the judgment dated 02.09.2011, a Full Bench of this court decided WP(C) 274/2010 [Dharam Pal Satya Pal Ltd & Anr v. The Commissioner, Value Added Tax & Anr] and other connected matters.

15. As noted in the very first paragraph of the Full Bench decision, the central issue before the Full Bench was ‘whether the Commissioner under the DVAT Act can exercise suo motu power of revision under Section 74A of the DVAT Act in respect of assessments that have been completed under the Delhi Sales Tax Act, 1975?’ The Full Bench answered this in the affirmative provided the power is invoked and exercised during the period of limitation as stipulated under Section 74A and subject to the other conditions precedent stipulated therein.

16. One of the contentions raised before the Full Bench was that the initiation of the revisional proceedings against the petitioners therein was wholly without jurisdiction inasmuch as the power of revision engrafted in Section 74A of the DVAT Act cannot be pressed into service in respect of orders passed under the provisions of the Delhi Sales Tax Act, 1975. On the other side, it was contended that Section 106 of the DVAT Act has to be read in conjunction with Section 74A and that a conjoint reading of the provisions would make it clear that the legislature intended that the suo motu power of revision would be applicable to the proceedings under the Delhi Sales Tax Act, 1975. Thus, the entire focus of the Full Bench was on the issue as to whether the suo motu power of revision in Section 74A of the DVAT Act could be invoked in respect of assessment orders passed under the Delhi Sales Tax Act, 1975, prior to its repeal by the DVAT Act. The Full Bench, inter alia, held that the suo motu power of revision in Section 74A of the DVAT Act could be invoked in respect of orders passed under the Delhi Sales Tax Act, 1975. The Full Bench, inter alia, examined the decision of the Supreme Court in CIT v. Shah Sadiq & Sons: 1987 (3) SCC 516, wherein it was observed that “a right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication.”.

The Supreme Court also held:-

“15. ... In other words, whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General Clauses Act, 1897. ...”

(Underlining added)

17. Another decision of the Supreme Court which was noticed by the Full Bench was that of State of Punjab v. Mohar Singh Pratap Singh: AIR 1955 SC 84 wherein, the Supreme Court held:-

“8. ... But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. ...”

(Underlining added)

A similar view was expressed in the Supreme Court decision in Jayantilal Amrathlal v. The Union of India: 1972 (4) SCC 174, in the following words:

“... In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to, enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question.”

(Underlining added)

The Full Bench also took note of the observations of the Supreme Court in the case of Mysore Rolling Mills (P) Ltd v. Collector of Central Excise: AIR 1987 SC 1488 to the following effect:-

“5. The only other submission of the appellant which remains for consideration is the tenability of the contention that the period of limitation under the old provision having expired the five year rule which has been applied was not available to be applied. Undoubtedly, the rule is intended to relate back and cover a period of five years from the date jurisdiction under the rule is invoked. The provision is, therefore, retrospective in operation. It is not the stand of the learned Counsel for the appellant that only when a period of five years has elapsed from the date of introduction of the rule, jurisdiction under the rule can be exercised in respect of that preceding period of five years. Once the rule comes into existence and jurisdiction under the rule is invoked it has got to cover a period upto five years preceding the date of issue of notice. The Tribunal has endorsed such action of the departmental authorities. The plea of limitation has no force.”

18. After examining the above and several other decisions of the Supreme Court, the Full Bench culled out, inter alia, the following principles:-

“(iii) The intention of the legislature must be absolutely clear whether it intends to destroy the old liabilities and it would depend upon the entire scheme of the Act.

xxxx xxxx xxxx xxxx

(vii) A legal proceeding which could have been initiated under the repealed Act continues to subsist if the savings and repeal provision so stipulates subject to the law of limitation. To elaborate, the right to initiate a legal proceeding can only be obliterated or effaced or meet its legal death if the period of limitation thereon has expired.”

(Underlining added)

19. Section 106 of the DVAT Act provides for ‘Repeal and Savings’ in the following manner:-

 “106. Repeal and savings

(1) The Delhi Sales Tax Act, 1975 (43 of 1975), the Delhi Tax on Entry of Motor Vehicles into Local Areas Act, 1994 (4 of 1995), the Delhi Sales Tax on Works Contract Act, 1999 (9 of 1999), and the [Delhi Sales Tax on Right to Use Goods Act, 2002 (13 of 2002)] as in force in Delhi (referred to in this section as the “said Acts”), are hereby repealed.

(2) Notwithstanding sub-section (1) of this section, such repeal shall not affect the previous operation of the said Acts or any right, title, entitlement, obligation or liability already acquired, accrued or incurred thereunder.

(3) For the purposes of sub-section (2) of this section, anything done or any action taken including any appointment, notification, notice, order, rule, form or certificate in the exercise of any powers conferred by or under the said Acts shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.”

By virtue of sub-section (1), inter alia, the Delhi Sales Tax Act, 1975 and the Delhi Sales Tax on Works Contract Act, 1999 were repealed. Notwithstanding this, sub-section (2) of Section 106 stipulates that the repeal shall not affect the previous operation of the said Acts or any right, title, entitlement, obligation or liability already acquired, accrued or incurred thereunder. Sub-section (3) of Section 106 provides that, inter alia, any order under the repealed Acts shall be deemed to have been made under the DVAT Act, as if the DVAT Act was in force on the date on which the order was passed. Thus, an assessment order passed under the Delhi Sales Tax Act, 1975, for the purposes of sub-sections (2) and (3) of Section 106 of the DVAT Act, would be deemed to be an order passed under the DVAT Act.

20. While construing the provisions of Section 106 of the DVAT Act, the Full Bench visualised three situations:-

“(i) assessment completed and already revised;

 (ii) assessment completed and revisional power invoked but the process not completed; and

(iii) assessment completed, but no revisional power invoked.. ”

In this petition, we are concerned with the third category of cases. In respect of this category, the Full Bench observed and held as under:-

“... In the third category of cases, where the assessments are completed but no revisional power is invoked, here again subsection (3) of Section 106 would be attracted as if the same is deemed to be an order passed under the DVAT Act. If the order of assessment could not have been revised under the DST Act as on 1.4.2005, the power of revision conferred under the DVAT Act

cannot be exercised if the time span has expired.”

21. The conclusions of the Full Bench were summarised in paragraph 67 of the said judgment and the same read as under:-

“67. In view of our aforesaid premised reasons, we proceed to record our conclusions in seriatim:

(a) The interpretation placed by the Division Bench in International Metro Civil Contractors (supra) and LG Electronics (India) Ltd. (supra) on Section 106 of the DVAT Act is not correct.

(b) The conclusion in International Metro Civil Contractors (supra) and LG Electronics (India) Ltd. (supra) to the effect that despite incorporation of Section 74A in the DVAT Act on 16.11.2005, the suo motu revisional proceeding could not be initiated at the commencement of the DVAT Act, i.e., 1.4.2005, as the legislative intendment was clear that on the date the Act came into force the provision pertaining to exercise of suo motu revisionary power did not exist in respect of the proceedings under the DST Act as the assessment had attained finality and were closed, is incorrect.

(c) The order of assessment framed under the DST Act is deemed to be an order framed under the DVAT Act and on reading of Sections 106 (2) and 106 (3) in a conjoint manner, it is not correct to state that once the order of assessment has been passed, the transaction is closed and, therefore, the assessment/order is not revisable under Section 74A of the DVAT Act.

(d) The liability incurred or accrued under the DST Act has a large expanse and a broader canvas and it would in view of Section 106 (2) of DVAT Act include initiation of any legal proceeding which is permissible within the period of limitation and till then no final or vested right accrues in favour of the assessee.

(e) The amendment brought by the legislature retrospectively incorporating Section 74A with effect from 1.4.2005 has been done to further elucidate the legislative intention and has to be given full effect to. The said amendment has been brought in the statute book by ex abundant cautela and in essence, removes the anomaly and is only curative in nature.

(f) The proceeding initiated under the DST Act is saved by the DVAT Act and further the proceedings could be initiated under Section 74A during the period of limitation as stipulated under Section 74A subject to the conditions precedent stipulated therein.

(g) The decisions in International Metro Civil Contractors (supra) and LG Electronics (India) Ltd. (supra) are overruled to the extent indicated hereinabove.”

(Underlining added)

22. What is relevant for our purposes is sub-paragraph (f) of the said paragraph 67 of the said decision. It is clear that the Full Bench concluded that proceedings initiated under the Delhi Sales Tax Act, 1975 were saved by the DVAT Act and further that the proceedings could be initiated under section 74A of the DVAT Act “during the period of limitation as stipulated under section 74A subject to the conditions precedent stipulated therein.”

23. With this background, we have to consider the question as to whether the impugned show cause notice dated 02.02.2010 is within limitation or not. We must recall that the assessment order in respect of the year 2003-04 was passed on 24.02.2005. It must also be recalled that the petitioner had moved the refund claim on 02.03.2005 alongwith which a copy of the said assessment order had been attached. It is, therefore, clear and there can be no doubt that the assessment order dated 24.02.2005 had been served upon the petitioner / dealer on or before 02.03.2005. Keeping this in mind, let us examine the provisions of section 74A(2)(b) of the DVAT Act which reads as under:-

“74A. Revision

(1) x x x x

(a) x x x x

(b) x x x x

(2) (a) x x x x

(b) Notwithstanding anything contained to the contrary in section 34, no order under this section shall be passed after the expiry of four years from the end of the year in which the order passed by the subordinate officer has been served on the dealer.”

The said provision bars the passing of an order in exercise of the revisional jurisdiction under section 74A after the expiry of four years from the end of the year in which the order passed by the subordinate officer had been served on the dealer. It is clear that the service of the assessment order had been effected on or before 02.03.2005. Therefore, the end of that year would be 31.03.2005. Which means that the order that could be passed under section 74A could only be passed within four years of 31.03.2005. In other words, in the facts of the present case, the revisionary order under section 74A could have been passed up to 31.03.2009.

24. As already pointed out above, the show cause notice itself had been issued on 02.02.2010 which is beyond the period of four years from the end of the year in which the assessment order dated 24.02.2005 had been served on the petitioner / dealer. It goes without saying that when even an order cannot be passed under section 74A of the DVAT Act, beyond the said period of four years, a show cause notice which would lead to the passing of the said order could obviously not have been issued beyond that period. Consequently, in our view, the impugned show cause notice dated 02.02.2010 is barred by limitation.

25. We have come to this conclusion specifically on account of the findings recorded by the Full Bench and in particular in paragraph 67 (f) of the said judgment dated 02.09.2011. The Full Bench made it clear that proceedings initiated under the Delhi Sales Tax Act 1975 are saved by the DVAT Act and that proceedings could be initiated under section 74A of the DVAT Act during the period of limitation as stipulated under section 74A subject to the conditions precedent stipulated therein being satisfied. Therefore, the Full Bench made it clear that if there was any proceeding which had been initiated under the Delhi Sales Tax, Act 1975 on the date on which the repeal of the Act came into effect and the DVAT Act was brought into force, the same could be continued and even fresh proceedings could be initiated under section 74A but this was subject to the period of limitation as stipulated under section 74A itself. It was also subject to the other conditions precedent stipulated in the said provision being satisfied.

26. In the present case, we find that no revisional proceeding had been initiated under the Delhi Sales Tax Act, 1975 on the date (01.04.2005) on which the DVAT Act was brought into operation. However, since the Full Bench had indicated that proceedings could be initiated under section 74A of the DVAT Act, all that has to be seen is as to whether the said proceedings have been initiated during the period of limitation as stipulated under section 74A of the DVAT Act or not. We note that there has been no provision made in section 74A which stipulates a period of limitation for issuing a notice or for invoking the power under section 74A of revision by the Commissioner. However, there is a clear stipulation in section 74A(2)(b) that no order under the said section can be passed after the expiry of four years from the end of the year in which the order passed by the subordinate officer has been served on the dealer. Thus, while there is no stipulation with regard to the limitation insofar as issuance of a notice under section 74A is concerned, there is a clear stipulation with regard to the period during which an order under that provision can be passed. When an order itself cannot be passed beyond the period of four years from the end of the year in which the assessment order had been served on the petitioner, it stands to reason that no notice initiating any proceeding under section 74A, by invoking the revisional power of the Commissioner, can be issued beyond that period of four years.

27. Section 46 of the Delhi Sales Tax Act, 1975 empowered the Commissioner to revise erroneous orders prejudicial to the interests of the revenue. But, the proviso thereto clearly stipulated that the final order that may be passed in exercise of this power of revision has to be passed with five years of the date of the order sought to be revised. The said proviso reads as under:-

“Provided that a final order under this section shall be made before the expiry of five years from the date of the order sought to be revised.”

It was contended by Mrs Ahlawat, appearing for the respondents, that what has been saved are the entire provisions of section 46 of the Delhi Sales Tax Act, 1975 and, therefore, the period of limitation of 5 years stipulated in the proviso thereto would be applicable in respect of assessment orders passed under that Act. She submitted that the period of limitation envisaged in Section 74A of the DVAT Act would apply only in respect of assessments completed under the DVAT Act. This argument cannot be accepted. First of all, once the provisions of Section 46 of the Delhi Sales Tax Act, 1975 were repealed and  replaced by the provisions of Section 74A of the DVAT Act qua revision, it would be the latter provision which would apply on and from 01.04.2005. Secondly, the power of revision under Section 46 of the Delhi Sales Tax Act, 1975 and that under Section 74A of the DVAT Act do not co-exist. Because, the two cannot have simultaneous existence. The death of one (Section 46 of the Delhi Sales Tax Act, 1975) has ushered in the birth of the other (Section 74A of the DVAT Act). Thirdly, in view of Section 106(2) and (3) of the DVAT Act as interpreted by the Full Bench, an order of assessment passed under the Delhi Sales Tax Act, 1975 shall be deemed to be an order under the DVAT Act. Thus, after the repeal of the Delhi Sales Tax Act, 1975 and introduction of the DVAT Act, it is the power of revision encapsulated in Section 74A thereof which holds the field. If the power of revision is invoked, it has to be under Section 74A of the DVAT Act and in terms thereof. The provisions of Section 46 cannot be applied to post 01.04.2005 revisions. Fourthly, we have seen the Supreme Court decision which held that provisions of a repealed Act may still have life even where there is no specific or general savings clause in the repealing and replacing Act, but this is subject to the condition that the rights, obligations, etc. under the repealed Act are not expressly or by necessary implication taken away by the repealing Act. Here, the proviso to Section 46 of the Delhi Sales Tax Act, 1975, as mentioned above, stipulates that a final revisional order has to be made before the expiry of five years from the date of the order sought to be revised. On the other hand, Section 74A(2)(b) specifically and expressly stipulates that no order under this Section (i.e., Section 74A) shall be passed after the expiry of four years from the end of the year in which the order passed by the subordinate officer has been served on the dealer. Clearly, Section 74A(2)(b) of the DVAT Act supplants the proviso in Section 46 of the Delhi Sales Tax Act, 1975. Fifthly, the Full Bench clearly held that, in cases where assessments had been completed under the Delhi Sales Tax Act, 1975 but revisional proceedings had not been initiated under Section 46 thereof by the time of the repeal, “proceedings could be initiated under Section 74A during the period of limitation as stipulated under Section 74A, subject to the conditions precedent stipulated therein”. Sixthly, the legislature consciously altered the limitation clause insofar as the power of revision is concerned. Having expressly provided for a different scheme in Section 74A(2)(b), it could not have been the intention of the legislature to continue the operation of the proviso to Section 46 of the Delhi Sales Tax Act, 1975.

28. We may also refer to a decision of the Supreme Court in the case of Thirumalai Chemicals Ltd v. Union of India: 2011 (268) ELT 296 (SC) wherein the question was whether, while dealing with a belated appeal under Section 19(2) of FEMA (Foreign Exchange Management Act, 1999), the application for condonation of delay has to be dealt with under the first proviso to sub-section (2) of Section 52 of FERA (Foreign Exchange Regulation Act, 1973) or under the proviso to sub-section (2) of Section 19 of FEMA. The Supreme Court observed as under:-

“... The question we have already pointed out is whether Section 52(2) of FERA or Section 19(2) of FEMA will govern the appeal. As noticed above, any provision relating to limitation is always

regarded as procedural and in the absence of any provision to the contrary, the law in force on the date of the institution of the appeal, irrespective of the date of accrual of the cause of action for the original order, will govern the period of limitation.”

29. Thus, the Supreme Court held:-

“... limitation being a matter of procedure, only that law that is applicable at the time of filing the appeal, would apply. Therefore, Section 19(2) of FEMA and not Section 52(2) of FERA will apply.”

Similarly, Section 74A(2)(b) of the DVAT Act and not Section 46 of the Delhi Sales Tax Act, 1975 would apply. In fact, the impugned show cause notice dated 02.02.2010 could not have been issued under Section 46 of the Delhi Sales Tax Act, 1975. However, even if it is assumed that the impugned show cause notice was issued in exercise of the powers of revision under Section 74A of the DVAT Act, the period of limitation would be that which was in vogue when the said notice was issued. The period of limitation that would apply would, therefore, be the one prescribed under Section 74A(2)(b) of the DVAT Act. And, that being the case, as we have mentioned above, the impugned show cause notice dated 02.02.2010 is barred by time.

30. Consequently, we quash the impugned show cause notice dated 02.02.2010. The writ petition is allowed. The parties are left to bear their own costs.

BADAR DURREZ AHMED, J

V.K. JAIN, J