COMMISSIONER OF SALES TAX ODISHA AND ORS VS M/S. ESSEL MINING AND INDUSTRIES LTD AND ANR

COMMISSIONER OF SALES TAX ODISHA AND ORS VS M/S. ESSEL MINING AND INDUSTRIES LTD AND ANR - Supreme Court Case 2022

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) DIARY NO. 29294 OF 2018

COMMISSIONER OF SALES TAX ODISHA AND ORS. ...PETITIONER(S)

VERSUS

M/S. ESSEL MINING AND INDUSTRIES LTD AND ANR. ...RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION (C) NO. 21140 OF 2021

WITH

SPECIAL LEAVE PETITION (C) NO. 21104 OF 2021

WITH

SPECIAL LEAVE PETITION (C) NO. 2468 OF 2022

WITH

SPECIAL LEAVE PETITION (C) NO. 2466 OF 2022

ORDER

1. The Five Special Leave Petitions arising from the orders of the High Court of

Orissa are taken up for hearing on pure questions of law.

2. The questions arise in the context of Section 42(6) of the Orissa Value Added

Tax Act, 20041

. The first question is whether the power of the Commissioner to

allow further time of six months to the Assessing Authority to complete the audit

1 hereinafter referred to as ‘the Act’.

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assessment must be exercised before the Assessing Authorities time to conclude the

proceedings expire. The second question is whether an Assessing Authority could

pass the assessment order after the period of six months in expectation of the

Commissioner extending the time. The third and the last question is whether a

Commissioner could grant post-facto extension, ratifying the assessment order

passed beyond the period of six months. We may clarify here itself that it is nobody’s

case that the powers could be exercised by the Commissioner after one year (initial

period of six months for Assessing Authority coupled with the power of the

Commissioner to allow further six months).

Statutory Position

3.1 For proper appreciation of the issue, it is necessary to refer to the relevant

provisions of the Act. Section 41 prescribes the procedure for conducting the

assessment proceeding. Section 41(2) empowers the Commissioner to direct that a

tax audit be conducted in respect of certain dealer(s) as selected by him. Section 41(4)

provides that after completion of the tax audit, the officer authorized to conduct such

audit shall, within seven days from the date of completion of the audit, submit an

Audit Visit Report2

to the Assessing Authority, along with the relevant

statement/documents.

2 hereinafter referred to as ‘the AVR’.

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3.2 Section 42, with which we are concerned in this case relates to audit

assessment. Under Sub-section (1), the Assessing Authority may, when the tax audit

conducted under Section 41 results in the detection of suppression of certain

purchases, sales etc., issue a notice to the dealer with a copy of the AVR and require

him to appear in order to give an explanation. Under Sub-section (4), the Assessing

Authority may after causing such enquiry, assess the tax due from the dealer. Subsection (6), which falls for our consideration and interpretation is also followed by a

Proviso. While the sub-section provides for the audit assessment to be completed by

the Assessing Authority within a period of six months, the Proviso, on the other

hand, empowers the Commissioner, if for any reason the assessment is not

completed by the Assessing Authority within the time stipulated in the section, to

allow such further time not exceeding six months for completion of assessment

proceeding.

3.3 Section 42 is as under: -

“42. Audit assessment,

(1) Where the tax audit conducted under sub-section (3) of

section 41 results in the detection of suppression of

purchases or sales or both, erroneous claims of deductions

including input tax credit evasion of tax or contravention

of any provision of this Act affecting the tax liability of the

dealer, the assessing authority may, notwithstanding the

fact that the dealer may have been assessed under section

39 or section 40, serve on such dealer a notice in the form

and manner prescribed along with a copy of the Audit Visit

Report, requiring him to appear in person or through his

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authorised representative on a date and place specified

therein and produce or cause to be produced such books

of account and documents relying on which he intends to

rebut the findings and estimated loss of revenue in respect

of any tax period or periods as determined on such audit

and incorporated in the Audit Visit Report.

(2) Where a notice is issued to a dealer under sub-section

(1), he shall be allowed time for a period of not less than

thirty days for production of relevant books of account and

documents.

(3) If the dealer fails to appear or cause appearance, or

fails to produce or cause production of the books of

account and documents as required under sub-section (1),

the assessing authority may proceed to complete the

assessment to the best of his judgement basing on the

materials available in the Audit Visit Report and such

other materials as may be available and after causing such

enquiry as he deems necessary.

(4) Where the dealer to whom a notice is issued under subsection (1), produces the books of account and other

documents, the assessing authority may, after examining

all the materials as available with him in the record and

those produced by the dealer and after causing such other

enquiry as he deems necessary, assess the tax due from

that dealer accordingly.

(5) Without prejudice to any penalty or interest that may

have been levied under any provision of this Act, an

amount equal to twice the amount of tax assessed under

sub-section (3) or sub-section (4) shall be imposed by way

of penalty in respect of any assessment completed under

the said sub-sections.

(6) Notwithstanding anything contained to the contrary in

any provision under this Act, an assessment under this

section shall be completed within a period of six months

from the date for receipt of the Audit Visit Report:

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Provided that if, for any reason, the assessment is not

completed within the time specified in this sub-section,

the Commissioner may, on the merit of each such case,

allow such further time not exceeding six months for

completion of the assessment proceeding.

(7) No order of assessment shall be made under subsection (3) or sub-section (4) after the expiry of one year

from the date of receipt of the Audit Visit Report.”

3.4 In the year 2010, an amendment was carried out to the sub-section. After the

said amendment, Section 42(6) reads as follows: -

“(6) Notwithstanding anything contained to the contrary

in any provision under this Act, an assessment under this

section shall be completed within a period of six months

from the date of service of notice issued under subsection (1) along with the Audit Visit Report:”

3.5 Another amendment to Section 42(6) was brought in the year 2015. This

amendment introduced a second Proviso to Section 42(6) and also deleted subsection (7) to Section 42. Though it is not necessary to refer to the second Proviso,

as it has no bearing on the facts of the cases, for having a complete idea of the

legislative changes, we may just take note of it and proceed further. The Proviso is

as under: -

“Provided further that if the Commissioner feels it

necessary to do so for good and sufficient reasons, he may

allow such further time not exceeding another six months

beyond the time allowed under the first proviso for

completion of the assessment proceeding.”

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Facts in the case of Essel Mining and Industries Ltd.

4.1 The AVR was made on 20.04.2007 and the notice of the same was received

by the Assessee on 14.05.2007. It is now settled that the date of receipt of the AVR

by the assessee should be the date for reckoning the period of six months.3 So, the

six months period calculated from 14.05.2007 ended on 13.11.2007. Before the

expiry of the said period, the Assessing Authority made an application dated

24.10.2007 to the Commissioner seeking extension of time by six months under the

Proviso to Section 42(6). The extension was granted on 16.11.2007, that is three

days after the initial period of six months. Thereafter, the Assessing Authority,

proceeded further and passed the assessment order on 31.12.2007. We may note

that the assessment order dated 31.12.2007 is in any event within a period of one

year commencing from 14.05.2007. The assessment order found tax due amounting

to Rs. 4,67,96,731/-.

4.2 It is this assessment order which was challenged before the High Court and

the High Court allowed the Writ Petition on the sole ground that the extension of

time was granted by the Commissioner over telephone. Disapproving this method

of extending time, High Court held that the Commissioner was obliged to consider

3 By a series of orders passed by the High Court of Orissa (M/s. Tata Sponge Iron Ltd. v. Commissioner of Sales Tax,

Orissa & Ors., (2011) SCC OnLine Ori 49; M/s. Lalchand Jewellers Pvt. Ltd. v. Assistant Commissioner of Sales Tax,

Puri, W.P. 11864 of 2017), it is settled that the date of receipt of AVR by the Assessee shall be the date for reckoning

the period of six months of Section 42(6). In fact, in one of the orders impugned before us being, M/s Cobra

Instalaciones Y Servicios S.A., the High Court has also calculated the six-month period from the date of receipt of the

AVR by the Assessee.

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the request for extension on case-to-case basis depending on merit of each case

which necessarily postulates the assigning of reasons. In view of these findings, the

High Court allowed the Writ Petition, and the assessment order dated 31.12.2007

was quashed. The issue raised in these Special Leave Petitions was not argued

before the High Court in this case.

4.3 The Review Petition was filed stating that the conclusion of the High Court

that the extension granted telephonically is erroneous and in fact the order of the

Commissioner dated 16.11.2007 granting extension was produced. On

interpretation, it was also stated that the Commissioner’s power under Proviso to

Section 42(6) cannot be restricted to exercising it before the expiry of the period of

six months. The High Court dismissed the Review Petition, unfortunately after a

decade i.e., on 08.02.2018 on the ground of delay. The issue argued before us was

not considered even in the Review Petition. The first Special Leave Petition is

against this order.

Facts in the case of M/s Shreem Electric Ltd.

5. In this case, the AVR was served on the Assessee on 22.05.2014 and

therefore, the six months period for passing the assessment order was to expire on

22.11.2014. The Assessing Authority sought extension of time by letter dated

29.11.2014. There is no indication about the date or any order of extension of time

by the Commissioner. Eventually, the assessment order was passed on 19.05.2015.

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This is the order challenged in the Writ Petition before the High Court. We may

note that the assessment order, even in this case is within a period of one year

commencing from 22.05.2014. It was argued that the assessment order passed after

the mandatory period of six months has no validity, particularly when the

Commissioner did not even exercise the power to extend the time. High Court

allowed the Writ Petition on the simple ground that the matter is covered by the

decision of the same Court in the case of M/s Cobra Instalaciones Y Servicios S.A.,

which in turn followed the decision of this Court in State of Punjab v. Shreyans

Industries Ltd.4

. M/s Cobra Instalaciones Y Servicios S.A., is also listed before us,

we will now note the facts of that case.

Facts in the case of M/s Cobra Instalaciones Y Servicios S.A.

6. In M/s Cobra Instalaciones Y Servicios S.A., the AVR dated 20.06.2012 was

received by the Assessee on 01.10.2012 and therefore the six months period to

complete assessment expired on 31.03.2013. The order of assessment was not

passed within that date, but an application for extension was made before the expiry

of the six months period i.e., on 25.03.2013. Eventually, the assessment order came

to be passed on 15.05.2013, which nevertheless, is within a period of one year

commencing from 01.12.2012. It is after the said order that the Commissioner in

4 2016 (4) SCC 769.

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exercise of his powers under the Proviso to Section 42(6) granted post-facto

extension by six months on 20.07.2013. The assessment order dated 15.05.2013

was challenged in the Writ Petition. The High Court considered the matter in detail

and held that the Assessing Authority could not have presumed that the

Commissioner would grant an extension and, therefore, could not have passed the

assessment order in advance. Further, it was held that the Commissioner has to

exercise the power after applying its mind to the facts of the case before

mechanically granting an extension. Importantly, the High Court found no difficulty

in applying the decision of this Court in the case of Shreyans (supra) and held that

the Commissioner should have exercised the power of extension before the original

period of limitation expired on 31.03.2013. The third Special Leave Petition is

against the order.

Facts in the two cases of M/s Swastik Ingot (P) Ltd.

7. The AVR was made on 31.05.2013 and the same was received by the

Assessee on 02.07.2013. Therefore, the assessment order was to be passed by

01.01.2014, however, the same was passed only on 31.03.2014. It is for this reason

that the assessment order was challenged on the ground that it was not passed within

a period of 6 months from the date of receipt of AVR by the Assessee. Further, it

was also contended that the permission for extension was also sought after the

expiry of the six-month period. The High Court allowed the Writ Petitions by

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placing reliance on the decision in M/s Cobra Instalaciones Y Servicios S.A. The

fourth and fifth Special Leave Petitions are from these orders.

Submission before this Court

8.1 We have heard Shri Rakesh Dwivedi and Shri Ravi Prakash Mehrotra, Senior

Advocates assisted by Ms. Deepti R. Mehrotra, Shri Apoorv Srivastava, Shri

Prasenjit K. Chakravarti, Shri Jogy Scaria (AoR), Ms. Kirti R. Mishra (AoR), Ms.

Sansriti Pathak, Ms. Apurva Upmanyu, Mr. Aryan Tripathy and Ms. Monika

Dwivedi, Advocates appearing on behalf of the Petitioners. Shri Gopal Jain, Senior

Advocate, assisted by Ms. Vanita Bhargava, Shri Ajay Bhargava, Ms. Shweta

Kabra, Ms. Prerna Singh and M/s Khaitan & Co. (AoR) for the Respondents.

8.2 Learned counsels have addressed us only on the interpretation of Section

42(6), and its Proviso and on the issue as to whether the Commissioner could

exercise the power to grant extension of time after expiry of the initial period of six

months provided to an Assessing Authority for passing the order of audit

assessment.

9. While reserving the judgment, we had ordered that we will take up the first

matter for disposal and on the basis of the decision in the first matter, the other cases

will be listed for appropriate orders. However, in the first matter, as noticed earlier,

the issue argued before us was neither raised nor considered by the High Court. The

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decision of the High Court is confined only to the question as to whether extension

could be granted on telephone and whether there is an obligation on the part of the

Commissioner to give reasons before granting further time for the completion of

the assessment. Even in the order disposing of the Review Petition, the High Court

has not considered the issue that is raised and argued before us. For this reason, we

have to necessarily decide the issue in other Special Leave Petitions.

10. In all the Special Leave Petitions, apart from the first case of Essel Mining,

we have noticed that the High Court disposed of the Writ Petitions by following the

decision of this Court in the case of Shreyans Industries (supra). The most important

question for consideration is whether the issue arising for consideration in these

Special Leave Petitions are covered by the decision of this Court in Shreyans

Industries (supra). It is therefore necessary for us to consider the ratio in Shreyans

Industries (supra) and to see if it covers the issues arising in these batch of cases.

11. Decision in Shreyans Industries (supra) is by a Bench of three judges. The

case arose out of proceedings under the Punjab General Sales Tax Act, 1948. The

issue was whether the power to extend time is to be necessarily exercised before the

normal expiry of the said period of three years ran out.

12. Before we proceed further to appreciate the ratio, it is necessary to refer to

Section 11 of the Punjab General Sales Tax Act, 1948 which fell for consideration

in Shreyans Industries (supra). The Provision is as under: -

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“11. Assessment of tax. –

(1) If the Assessing Authority is satisfied without

requiring the presence of [dealer] or the production by

him of any evidence that the returns furnished in respect

of any period are correct and complete, [he shall pass an

order of assessment on the basis of such returns within a

period of three years from the last date prescribed for

furnishing the last return in respect of such period.

….

(3) On the day specified in the notice or as soon as

afterwards as may be, the Assessing Authority shall, after

hearing such evidence as the dealer may produce, and

such other evidence as the Assessing Authority may

require on specified points, [pass an order of assessment

within a period of three years from the last date prescribed

for furnishing the last return in respect of any period.

….

(10) The Commissioner may, for reasons to be recorded in

the writing, extend the period of three years, for passing

the order of assessment for such further period as he may

deem fit.”

13. After considering rival submissions, the Court considered similar provisions

of the Karnataka Sales Tax Act,1957 as well as the Gujarat Sales Tax Act,1969 and

after approving and following a decision of the High Court of Karnataka, this Court

observed as under: -

“21. Clause (b) of sub-section (6) indicates that Joint

Commissioner, in appropriate cases, may pass an order

for deferment of assessment order to be passed by the

assessing authority and once such an order is passed, that

period has not to be counted while computing the period

of limitation. Significantly, this provision also mandates

the Joint Commissioner to record reasons for deferring

the orders of assessment. In essence, therefore, the purport

and objective behind the provisions in the Punjab Act as

well as in the Karnataka Act remains the same. By making

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any order of deferment under sub-section (6) of Section 12

of the Karnataka Sales Tax Act, the Joint Commissioner

is, in fact, achieving the same purpose of granting more

time to the assessing officer to pass the assessment order.

Same is the purpose behind sub-section (11) of Section 10

of the Punjab Act. In view thereof, it may not be

appropriate to go into the nuanced distinction between

“deferment” and “extension” as per the definitions

contained in Black's Law Dictionary in the given situation,

which is dealt with in the instant appeals.

22. Even otherwise, it is important to understand the ratio

laid down in the judgment of the Karnataka High Court in

BHEL [BHEL v. CCT, (2006) 143 STC 10 (Kar)]. The

issue in the said case before the Karnataka High Court

was as to whether the power to pass a deferment order is

to be exercised even after the expiry of the period of

limitation which was answered in the negative. The

reasons given in support of this conclusion are as follows:

(STC pp. 15-16, para 8)

“8. … Deferment of assessment has the

effect of enlarging the period of limitation

which did not expire by the time the

deferment order is contemplated to be

passed. When once the period of limitation

expires, the immunity against being subject

to assessment sets in and the right to make

assessment gets extinguished. Resort to

deferment provisions does not retrieve the

situation. There is no question of deferring

assessment which had already become timebarred. The provision for exclusion of time

in computing the period of limitation of

deferment of assessment is meant to prevent

further running of time against the Revenue

if the limitation had not expired.”

 (emphasis supplied)

It was also observed that upon the lapse of the period of

limitation prescribed, the right of the Department to assess

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an assessee gets extinguished and this extension confers a

very valuable right on the assessee.

23. If one is to go by the aforesaid dicta, with which we

entirely agree, the same shall apply in the instant cases as

well. In the context of the Punjab Act, it can be said that

extension of time for assessment has the effect of enlarging

the period of limitation and, therefore, once the period of

limitation expires, the immunity against being subject to

assessment sets in and the right to make assessment gets

extinguished. Therefore, there would be no question of

extending the time for assessment when the assessment has

already become time-barred. A valuable right has also

accrued in favour of the assessee when the period of

limitation expires. If the Commissioner is permitted to

grant the extension even after the expiry of original period

of limitation prescribed under the Act, it will give him right

to exercise such a power at any time even much after the

last date of assessment. In the instant appeals itself, when

the last dates of assessment were 30-4-2004, 30-4-2005,

30-4-2006 and 30-4-2007, orders extending the time

under Section 11(10) of the Act were passed on 17-8-2007,

17-8-2007, 17-8-2007 and 25-5-2007 respectively. Thus,

for Assessment Year 2000-2001, order of extension is

passed more than three years after the last date and for

Assessment Year 2001-2002, it is more than two years

after the last date. Such a situation cannot be

countenanced as rightly held by the High Court. When the

last date of assessment in respect of these assessment

years expired, it vested a valuable right in the assessee

which cannot be lightly taken away. As a consequence,

sub-section (11) of Section 10 has to be interpreted in the

manner which is equitable to both the parties. Therefore,

the only way to interpret the same is that by holding that

power to extend the time is to be exercised before the

normal period of assessment expires. On the aforesaid

interpretation, other arguments of Mr. Ganguli lose all

significance.”

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14. It is necessary to restate the principle laid down by the three-Judge Bench in

Shreyans Industries (supra): Even where a statute uses varied expression such as

‘deferment’ or ‘extension’, the purpose is only to grant further time to the Assessing

Authority to complete the assessment. Therefore, there is no purpose in drawing a

distinction in the power of extension by referring to the specific expressions used

in different statutes provisioning extending the time. The ratio of the judgment is

that, upon the lapse of period provided for the AO to make the assessment, the right

of the department to assess gets extinguished. This extinguishment also gives rise

to a valuable right to the assessee. Once the right to make assessment extinguishes

there is no question of extension of time when the assessment has become time

barred. This is the broad principle laid down in Shreyans Industries (supra) decided

by the three Judges Bench.

15. Shri Rakesh Dwivedi, learned Senior Counsel advanced submissions on

behalf of the Petitioner-State and has also filed written submissions. It is his case

that the decision in Shreyans Industries (supra) cannot be made applicable to these

batch of cases for the following reasons:

(i) While all these cases arise under Section 42(6) of the Orissa Value Added

Tax Act, 2004, the decision in Shreyans Industries (supra) concerns the

interpretation of Section 11 of the Punjab General Sales Tax Act, 1948.

(ii) Under the Punjab General Sales Tax Act, 1948 a very long period of 3

years from the date of filing of last return had been given for completing

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original assessment and a period of 5 years was given for making best

judgment assessment, where return was not filed. This is not the case here.

(iii) The power to grant extension under Section 11(10) of the Punjab General

Sales Tax Act, 1948 did not contain any outer limit for extension. This is also

not the case here.

(iv) The power of extension under Section 11(10) of the Punjab General Sales

Tax Act, 1948 required recording of reasons in writing. There is no obligation

to record reasons here.

(v) The judgment in the case of Shreyans Industries (supra) was in the context

of original assessment, and not to cases pertaining to escapement of tax found

in audit or fraud, which is the case here.

(vi) The judgment of the Supreme Court in CIT v. Ajanta Electricals5 was

distinguished in Shreyans Industries’s case as it was based on the

interpretation of the words ‘it has not been possible’ occurring in Section

139(2) of the Income Tax Act. In these cases, the expression under proviso

to Section 142(6) is the assessment is not completed within the time specified,

Ajanta Electricals (supra) must apply here.

(vii) In Shreyans Industries the assessing officer has sent notices to the

assessee after the expiry of 3 years. The issue pertained to extension of time

for issuing notice, and not for completing assessment as in these cases.

Further, the order of extension was under challenge in Shreyans Industries’s

case.

5 1995 (4) SCC 182.

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16. Since the decision in Shreyans Industries (supra) is based not merely on the

interpretation of the Section but on a principle of law, it is difficult to distinguish

the judgment on the facts or wordings of the statute. We cannot easily brush aside

the submissions made by the Respondents that the principle laid down in Shreyans

is equally applicable to the provisions of the Act. Following Shreyans, it could be

argued that after expiry of six months under Section 42(6) of the Act, the right to

make an assessment gets extinguished and therefore the Commissioner cannot

exercise the right of extension of time. The distinction made by Shri Rakesh

Dwivedi is therefore, not so glaring and so fundamental that we can straightaway

disapply Shreyans Industries to the facts of the present case. The principle laid

down in Shreyans Industries is wide enough and requires a critical and detailed

consideration. As we are sitting in the strength of two judges, we consider it

appropriate that the matter be taken up by a Bench of an equal strength and therefore

refer the matter to a three Judge Bench where there will be a possibility to hear the

parties on the applicability of Shreyans Industries. There is yet another reason.

17.1 There are certain alternative perspectives based on the interpretation, as well

as on the principle of administrative law.

17.2 On interpretation, the following perspectives may be noted:

(i) While sub-section (6) of Section 42 relates to the power of the Assessing

Authority, Proviso to sub-section (6) relates to the power of the

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Commissioner. These are two distinct officers, exercising different powers.

As we are to examine the power of the Commissioner, the scope and ambit of

such power must be located within the proviso, which alone speaks of the

power of the Commissioner.

(ii) In the said Proviso, there is no limitation upon the commissioner to

exercise such power before the original period of six months. By inferring

such a limitation, Court could be supplying words to the Act by providing “the

commissioner may before the expiry of the initial period of six months” allow

such further time not exceeding six months for completion of the assessment

proceedings.

(iii) Even on a combined reading of the provision in Section 42(6) along with

the proviso, it may be difficult to infer a conclusion that the intendment of the

Section is to render the assessment proceedings to be terminated before the

expiry of the period of one year.

(iv) There is no provision which extinguishes the power of the Commissioner

if it is not exercised during the subsistence of the initial period of six months.

Such an extinguishment is neither in sub-section (6) nor in the Proviso.

(v) A plain and a simple reading of the sub-section, coupled with the proviso

is intended to oblige the ‘Assessing Authority’ to complete the assessment

within six months and if it is not possible, the Commissioner would grant an

extension of another six months. To complete the assessment proceedings

within a period of one year seems to be the mandatory intendment of law. It

is necessary to read the statutes as a whole keeping in mind the text and the

context of the provisions.

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17.3 Further, there are similar provisions under the Income Tax Act,1961 i.e.,

Section 139(2) where this Court in Ajanta Electricals (supra) has taken a view that

the power of extension can be granted by an Income Tax officer even after the

expiry of the prescribed period.

17.4 Considering this from the perspective of administrative law, the time

limitations are restrains placed by the legislature to regulate exercise of

administrative power. They are intended to enforce discipline in governance and

could therefore be compelling guidelines or even mandatory prescriptions. The

Court must therefore, examine the provisions in the context of balance between

need for executive flexibility and the quest against arbitrariness. It is the duty of the

Court to synthesize these competing claims keeping in mind the public interest of

good governance. This Court has traditionally drawn a distinction between statutes

prescribing no time limit while performing public duties and statutes providing a

time limit. Even with the statutes providing for the time limit, there is a distinction

between statutes providing for consequence for not acting with the time limit and

statutes not providing for any such consequences. Examination of these factors

become necessary for appreciating the procedural ultra vires in the executive action.

For the present, we need not say anything more.

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17.5 The points of distinction brought about by Shri Rakesh Dwivedi and the

perspectives that we have indicated on interpretation and also on principles of

administrative law may be considered by a bench of three-Judges. The necessity for

referring the matter to three-Judges is to have consistency and clarity in the law of

precedents and certainly to avoid having multiple judgements drawing subtle

distinction between one another.

18. For the reasons stated above, we are of the view that these matters must be

placed before a three Judge bench for a consideration of the principle in Shreyans

Industries (supra) and also on the applicability of the said judgment to the

proceedings arising under the Act.

……………………………….J.

 [UDAY UMESH LALIT]

……………………………….J.

[PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

JULY 11, 2022