Allied Exports & Imports v. State Of Andhra Pradesh .

Gopal Rao Ekbote, J.:— The petitioner-firm is a registered dealer and deals in mica. For the year 1956–57 the firm was assessed to sales tax on a turnover of Rs. 4,94,315-6-5 by an assessment order dated 30th September, 1958.

2. On information the assessing authority after due notice assessed the dealer on an additional turnover of Rs. 1,50,000 as escaped turnover by its order dated 31st March, 1963.

3. Aggrieved by that order the petitioner-firm preferred an appeal to the Assistant Commissioner. The appellate authority thought that the escaped turnover is more than what has been found by the assessing authority. The appellate authority therefore by its order dated 28th September, 1964, remanded the case to the assessing authority with a direction to proceed on the lines suggested in the order. The firm further carried an appeal to the Sales Tax Appellate Tribunal the Tribunal by its order dated 9th March, 1956, directed the remand of the Case to the assessing officer after setting aside the order of the appellate authority. The assessing authority was asked to make a fresh assessment in the light of the observations made in that order. It is against the said order of the Appellate Tribunal that the tax revision case has been filed in this court.

4. The revision first came before our learned brother Obul Reddi and Ramachandra Raju, JJ. The learned Judges felt:

“The view taken by the Division Bench of this court in T.R.C No. 49 of 1965 is in conflict with the view expressed by another Division Bench of this court in S.L Ramanatham v. Commissioner of Commercial Taxes, Andhra Pradesh [1969] 23 S.T.C 249.

5. They therefore considered that “the question of limitation involved in this case should be decided by a Full Bench”. The matter has thus come before us.

6. The principal contention of the learned counsel for the petitioner was that section 14 (4-A) of the Andhra Pradesh General Sales Tax Act, 1957, hereinafter called “the repealing Act” which prescribes a period of six years is not applicable to the present case. The assessment year being 1956–57 which year ended on 31st March, 1957, before the repealing Act came into force on 15th June, 1957, it is the Madras General Sales Tax Act, 1939, hereinafter called “the repealed Act” which would apply. Under that Act according to rule 17 of the Rules made thereunder, three years period was prescribed for the reassessment. The contention was that the petitioner had a right not to be assessed in respect of turnover that had escaped assessment after the expiry of the period prescribed in rule 17 of the Rules made under the repealed Act.

7. In order to understand the implications of this argument, it is necessary to state that under rule 17 of the Rules made under the repealed Act, if for any reason any part of the turnover of business of the dealer has escaped assessment to the tax in any year, the assessing authority may at any time within three years next succeeding that to which the tax relates, determine they turnover which has escaped assessment and assess the tax payable on such turnover after a proper enquiry held in that behalf.

8. This rule, it is seen, was made under the repealed Act. The said Act was repealed by section 41 of the repealing Act. It came into force on 15th June, 1957. This repeal, however, would not have put an end to rule 17 if section 14(4) of the repealing Act had not provided a period of four years for reassessment covered previously by rule 17.

9. Section 14(4) of the repealing Act, as it originally stood, enjoined that in the event of any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may determine the turnover that has escaped assessment and assess the turnover to tax which is determined, after notice and enquiry made in that behalf.

10. By the Amendment Act of 1961, section 14(4) was amended with retrospective effect as per section 1(2) of the said Act from 15th June, 1957. Under the said amended section, the reassessment can be made within a period of six years from the expiry of the year to which the tax related if any part of the turnover has escaped assessment on account of the failure of the dealer to disclose the turnover or any other particulars correctly.

11. Section 14 was further amended by section 15 of the Amendment Act 16 of 1963. According to this substituted sub-section (4-A), an assessment shall be made within a Period of six years from the expiry of the year to which the tax related if the event that has occasioned such assessment has occurred on account of the failure of the dealer to disclose the turnover or any of the particulars correctly.

12. Section 41 of the repealing Act in so far as it is relevant, reads as under:

“(I) The Madras General Sales Tax Act, 1939 (Madras Act 9 of 1939) are hereby repealed;

Provided that such repeal shall not affect the previous operation of the said Acts or section or any right, title, obligation or liability already acquired, accrued or incurred under, and subject there to anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit) in the exercise of any power conferred by or under the said Acts or section 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.

(2) Notwithstanding anything contained in sub-section (1) any application, appeal, revision or other proceeding mad or preferred to any officer or authority under the said Acts or section and pending at the commencement of this Act, shall after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceeding under this Act, if it had been in force on the date on which such application, appeal, revision or other proceeding was made or preferred”.

13. It is seen that the assessment year in the present case being 1956–57, the escaped turnover could have been brought to additional assessment within three years under rule 17 next succeeding that to which the tax related. Thus, the reassessment in regard to the escaped turnover could have been made on or before 31st March, 1960. But before this period had expired, the repealing Act came into force on 15th June, 1957, according to section 14(4) of which four years period was prescribed for reassessment which period was subsequently extended to six years with retrospective effect if the reassessment is occasioned on account of failure on the part of the dealer to - provide the particulars correctly. Thus, the position on 15th June, 1957, was that for reassessment occasioned on account of the failure on the part of the dealer to provide correct particulars the period was six years.

14. The short question which therefor arises for our consideration is whether the petitioner had acquired, as is argued, any right to be reassessed only within three years under rule 17 made under the repealed Act; in other words, is had acquired any right not to be reassessed after the expiry of the period prescribed in rule 17.

15. In is necessary in order to determine this controversy to bear in mind he distinction between a substantive right and a rule of procedure prescribed for the enforcement of such a right. It is not possible to state with precision the exact nature of the distinction between a substantive law and the law of procedure. Still the distinction is marked and well-know. The law of procedure may be said to be that branch of the law which governs the process of litigation. It is the law of actions: all the residue is substantive law and relates not to the process of litigation, but to its purposes and subject-matter. It other words, the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of application of the one to the other.

16. Likewise the distinction between a right to remedy and a mere procedure to be followed in prosecuting that remedy must also be kept in view. The law of procedure deals with the process by which a remedy for the enforcement of a right is prosecuted. A right of suit and a right of appeal ate remedies for the enforcement of a right and these remedies are equally substantive rights though remedial in nature. The law, it must be under-stood, make a clear distinction between rules of law which in any way impair or destroy those rights and those which a litigant has to comply with for availing himself of those remedial rights. The latter, belong to the law of procedure. While the former can be taken away or affected by an express provision of law or by a law which has that necessary implication, the latter relating to the procedure can be altered without detriment to the substantive rights or remedies. In cases where rights substantive or remedial are touched the presumption is that the Legislature does not intend to take away or affect such rights retrospectively unless as stated earlier the intention of the Legislature is made explicit in that behalf. However, in regard to the procedural law, the general presumption is that the alteration in the procedure is retrospective in the sense that it not only applies to pending cases but also applies to causes of action which had arisen before the change in the procedure was effected. But there is an exception to this general rule. In cases where the alteration in procedure would have the effect of destroying the right of action, the procedural law also is presumed to be prospective and not retrospective.

17. If this distinction is kept in mind, then there will be no difficulty in appreciating the maxim that there is a material difference when an Act of the Legislature is dealing with a right of action already vested not intended to be taken away and when it-is dealing with mere procedure to recover those rights which it may be quite reasonable to regulate and alter even if such alteration has been disadvantageous to one of the parties. It will be a mistake to mix up two distinctly separate things and put them both under one head of vested right. The procedure prescribed to enforce an existing right or adopt a remedy is not part of the existing right, whether it is substantive or remedial in nature. These two matters have to understood as distinctly separate. Thus a, law which merely alters the procedure may with perfect propriety be made applicable to past as well as future transactions. This is based on the principle that “no person has a vested right in any course of procedure. He has only a right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if an Act of Parliament alters that mode of procedure he has no other right than to proceeded according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right, for the defaulter can have no vested right. In a state of the law which left the injured party without of with only a defective remedy. If the time for pleading is shortened or new powers of amending were given, it would not be open to the parties to gain say such a change, the only right thus interfered with being that of delaying or defeating justice, a right little worthy of respect.” See Maxwell, page 216 See also Craies on Statute Law, page 400.

18. In the Full Beach decision in Ganga Sahai…(Defendant); v. Kishen Sahai…(Plaintiff).*(1), the distinction between the substantive right and the relief on the one hand and the procedure to be adopted for getting relief on the other is succinctly brought out. In that case, the question arose as to the maintainability of the suit for foreclosure of a mortage by conditional sale executed on 3rd July, 1877, ween Regulation 17 of 1806 was in force, instituted after the Transfer to property Act came into force which Act repealed the said Regulation Under Sec. 8 of the said Regulation, no mortgage could be foreclosed without the service of one year's notice upon the mortgagor in the prescribed manner. The defence set up was that since the condition mentioned in the Regulation in regard to the notice was not complied with, the suit was not maintainable. That contention was rejected on the ground that the service of a prior notice related to procedure and no person had vested right in procedure. It was argued that section 2 of the Transfer of Property Act provided that “nothing contained in the Act shall be deemed to affect any rights or liability arising out of a legal relation constituted, before this Act came into force, or any relief in respect of any such right or liability.” Based on this provision it was urged that the previous provision regarding the issue of notice of one year was not affected by the repealing Act. Rejecting the contention, it was observed:

“There is no vested right to have recourse to a particular procedure for enforcing a contract; such a right cannot be claimed by the parties to a mortgage, as being in any sense a right which arises out of the legal relation of a mortgagor and mortgagee. To alter the procedure involves no breach of their contract.

Their rights and liabilities under their contract, and the relief they are entitled to in respect of such rights and liabilities, are different things from the procedure necessary to enforce such rights, liabilities and relief. And although the procedure for redemption and foreclosure of mortgage by conditional sale has been altered, it can scarcely be said that the mortgagor has been injuriously affected by the change.”

19. In a Full Bench case reported in Bhobo Sundari Debi v. Rakhal Chunder Bose(2), a similar question arose for consideration. It was observed at page 589:

“There is, I think, a clear distinction between relief and the mode of procedure for obtaining such relief. The relief remains unaffected by the change of the procedure. The rights and liabilities of the mortgagor and mortgagee, and the relief in respect of such rights and liabilities are the same under the Transfer of Property Act as they were before. A different procedure for enforcing such rights and obtaining such relief has, however, been adopted. The procedure for enforcing a right is no portion of that right, nor docs it alter or affect it.”

20. In Ramakrishna Chetty v. Subbaraya Iyer(3), it is held that the law of limitation applicable to a suit would be that in force at the time of its institution. The law of limitation is a branch of the law of procedure.

21. This judgment has been approved in a later Full Bench decision in Rajah of Pittapur v. Venkata Subba Raw(4).

22. In Ramanathan Chettiar v. Kandappa Goundan(5), the same view that the law of limitation being procedural its Provisions operate retrospectively has been affirmed.

23. To the same effect is the Full Bench decision of the Allahabad High Court in Bankey Lal v. Babu.

24. In Ramprasad v. Vijaykumar, it is laid down that “the respondents bad no vested right in the law of procedure for enforcement of the mortgage. They did not acquire under article 133 of the Hyderabad Limitation Act any right or privilege as contemplated by the proviso to section 6 of the Part B States (Laws) Act, 1951. No doubt, article 132 of the Indian Limitation Act, 1908, abridged the period of limitation for the enforcement of the mortgage. But this abridgement did not impair or take away any vested right.”

25. It is useful in this connection to refer to some of the decisions under section 34 of the Income-tax Act, 1922, a provision which is in pari materia with section 14 (4-A) of the Act with which we are concerned. In S.C Prashar v. Vasantsen, Hidayatullah, J., (as he then was) observed:

“Now, we do not think that we can treat the different periods indicated under section 34 as periods of limitation, the expiry of which grant prescriptive title to defaulting taxpayers. It may be said that an assessment once made is final and conclusive except for the provisions of section 34 and 35 but it is quite a different matter to say that a ‘vested right’ arises in the assessee. On the expiry of the period the assessments, if any, may also become final and conclusive, but only so long as the law is not altered retrospectively. Under the scheme of the Income-tax Act a liability to pay tax is incurred when according to the Finance Act in force the amount of income, profits or gains is above the exempted. That liability to the State is independent of any consideration of time and, in the absence, of any provision restricting action by a time-limit, it can be enforced at any time. What the law does is to prevent harassment of assessees to the end of time by prescribing a limit of time for its own officers to take action. This limit of time is binding upon the officers, but the liability under the charging section can only be said to be unenforceable after the expiry of the period under the law as it stands. In other words, though the liability to pay tax remains it cannot be enforced by the officers administering the tax laws. If the disability is removed or according to a new law a new time-limit is created retrospectively, there is no reason why the liability should not be treated as still enforceable. The law does not deal with concluded claims or their revival but with the enforcement of a liability to the State which though existing remained to be enforced.”

26. Again at page 1392 the learned Judge observed:

“Before dealing with this question we wish to say a few words about the well-known principle that subsequent changes in the period of limitation do not take away an immunity which has been reached under the law as it was previously. In this sense statutes of limitation have been picturesquely described as ‘statutes of repose’. We were referred to many cases in which this general principle has been firmly established. We do not refer to these cases because in our opinion it is somewhat inapt to discribe section 34 with its many amendments and validating section? as a ‘section of repose’. Under that section there is no repose till the tax is paid or the tax cannot be collected. What the law does by prescribing certain periods of time for action is to create a bar against its own officers administering the law. It tries to trim between recovery of tax and the possibility of harassment to an innocent person and fixes a duration for action from these two points of views. These periods are occasionally readjusted to cover some cases which would otherwise be left out and hence these amendments. An assessment can be said to become final and conclusive if no action can touch it but where the language of the statute clearly reopens closed transactions there can be no finality. We would not raise these prescribed periods to the level of those periods of limitation which confer not only immunity but also give titles by the passage of time”.

27. The other learned Judges are of the same opinion in so far as this pro position of law is concerned, although some of them differ in regard to the question as to whether greater retrospectivity could be given to the relevant provision which fell for their consideration or not. We are not concerned with that aspect in this case.

28. In S.S Gadgil v. Lal & Co, it was observed that the income-tax authorities are administrative authorities but the proceedings before them are not impressed with the character of an action between the citizen and the State It is further said that section 34 imposes a fetter upon the power of the Income-tax Officer to bring to tax escaped income. Their Lordships approved of the decision in Ahmadabad Manufacturing and Calico Printing Co. Ltd. v. S.G Mehta, Income-tax Officer and quoted a passage from page 171 of the said report, according to which the periods fixed for reopening “do not create an exemption in favour of the assessee or grant an absolution on the expiry of the period; the liability is not enforceable but the tax may again become exigible if the bar is removed and the taxpayer is brought within the jurisdiction of the said machinery by reason of a new power-”

29. This High Court has taken a similar view in the following case's:

In Munaga Peraiah v. State of Andhra Pradesh, Chandra Reddy, C.J, and Jaganmohnan Reddy, J., (as he then was) were concerned with a similar argument. The contention was that section 14(4) of the repealing Act has no application as the assessment in question was sought to be brought within the scope of rule 17. It was contended that section 14(4) is prospective and not retrospective. The contention was repelled holding that what is essential to consider is whether the period prescribed under rule 17(I) had expired before the coming into effect of section 14(4). It was held that where the period of limitation was enlarged before the right of the assessing authority to reassess was barred, it is the amended law that determined the liability of the assessee, that is to say four years next succeeding the assessment year. The argument based on section 41 of the repealing Act that a right had been accrued which was saved was rejected.

30. To the same effect is the judgment of Satyanarayana Raju and Venkatesam, JJ., in Ramakrishnaiah v. State of Andhra Pradesh..

31. In K. Kannaiah v. Deputy Commercial Tax Officer decided by Chandra Reddy, C.J, and Gopal Rao Ekbote, J., the contention was that it was beyond the competence of the department to make an assessment in respect of purchases made during the period of the operation of the repealed Act after it had ceased to be in force. Interpreting the words “liability already incurred thereunder” appearing in the proviso to section 41 of the repealing Act, it was held that the declaration of liability by the statute and the quantification thereof are two different stages in the imposition of tax. But the declaration of liability implies the liability to pay. The specific purpose of the proviso to section 41 is to keep alive the rights acquired and the liabilities incurred under the repealed Act”

32. Jaganmohan Reddy, C.J, and Kumarayya, J., (as he then was) had occasion in Khadar Mohinuddin v. State of Andhra Pradesh to consider the same question. It was held firstly that the proviso to section 41 has preserved the obligation to pay tax already incurred under the repealed Act, and consequently protected the corresponding right of the assessing authority to assess and recover the same. The additional assessment being continuation of the original. assessment, the assessing authority was competent to proceed with the additional assessments notwithstanding the repeal of the Madras Act provided they were not barred by time on the day when the repealing Act came into force. Secondly, it was held that where the period of limitation is enlarged before the right of the assessing, authority to reassess is barred, it is the amended law that detemines the liability of the assessee. Thirdly it was held that as as in these cases the old period of three years had not expired when section 14(4-A) came into force, the assessing authority will be well within its rights in making additional assessments Within the enlarged period of six years next succeeding the assessment year prescribed by section 14(4-A).

33. The last case which took the same view is Raghavareddy v. State of Andhra Pradesh. Gopal Rao Ekbote and Parthasarathi, JJ., held that there was a fetter on the power or jurisdiction of the assessing authority to, reassess under rule 17 made under the repealed Act within three years and if the right of the department was barred when the repealing Act came into force, then the four or six years period provided in the new Act would not revive the lost right. But the correct way to look at it that the power of the assessing authority to reassess would be lost after three years. It is a question of jurisdiction or power on which a. fetter of time is placed. The Legislature, however could remove the fetter. If the three years period is not expired and before its expiration the Legislature provided for four years for the reassessment, the new provision would apply. The Bench also considered section 41 of the Act, and held that no one has a vested right in the period of limitation or call it a fetter placed on the exercise of jurisdiction.

34. What follows from the above said discussion is that since the assessment years was 1956–57 ending by 31st March, 1957, under rule 17 made under the repealed Act which then was prevalent the assessing authority could have reopened the assessment within three years next succeeding the assessment year. Before the said three years had expired, the repealing Act, however, came, into force on 15th June, 1957, accordingly to section 14(4) of which four years period for reopening the assessment was substituted. The said sub-section was substituted by the Amending Act of 1961 which was given retrospective effect from 15th June, 1957,.when the principal Act had come into force. Section 14(4-A) provided six years period for a reassessment, in case of default on the part of the dealer. The effect of the amendment was that it would be deemed to have been in operation at all material times since the enactment of the principal Act, as the Legislature has given a clear retrospective operation, to the amended section 14 as from the date on which the principal Act came into operation. Consequently, the correctness of the notice of reassessment issued on, 24th February, 1961, and the order of reassessment dated 31st March, 1963 will have to be adjudged in the light of the amended section 14(4-A) of the Act prescribing six years period for reassessment. It was conceded that in view of the position of law, the notice and the order of, assessment would be well within the power and jurisdiction of the assessing authority. We are, therefore, satisfied that to the present case the new provision of section 14(4-A) was rightly applied and it was correctly held by the sales tax authority that the reassessment order was not vitiated because of lack of jurisdiction on the part of the assessing authority.

35. It was, however, contended that the principles enunciated above do not apply to the present case because there is really no question of limitation involved. It is really a fetter which is placed on the jurisdiction of the assessing authority to reassess by rule 17 made under the repealed Act to the effect that die reassessment must be made within three years of the assessment year and not beyond it. It is true that the assessment proceedings are treated as judicial proceedings and not suits. It is also true that what rule 17 or section 14(4-A) does is to put a fetter on the jurisdiction or power of the assessing authority to reassess. But that hardly makes any difference. The decisions of the Supreme Court as well as the decisions of this court referred to above while recognising that the time limit placed is a fetter on the power or jurisdiction of the assessing authority nevertheless held that if before the expiry of the period prescribed the fetter is relaxed or removed by the Legislature by the amending Act, it is the period prescribed by the amending Act that could apply. This is plain because whether it is a question of limitation or a question of fetter on the jurisdiction, in either case it falls within the domain of adjective or procedural law and it cannot be argued that as such fetter placed on the jurisdiction operates any sort of vested right in the assessee. Such fetter can always be relaxed by the Legislature. That any restriction or fetter placed on jurisdiction is also a matter of procedural law can be seen from Lalitabai Banwarilal…Plaintiff; v. The Dominion Of India,…Defendant. . A.I.R 1954 Bom. 527.. It was held:

“Where rights and procedure are dealt with together by any provision of law it may well be the intention of the Legislature that the old right should be determined by the old procedure. But it is clear that the proviso to article 225 only deals with jurisdiction and not with any rights. That is a matter of procedure and as no party has a vested right to particular proceedings or to a particular forum, article 225 applies to a suit even though the Constitution had not come into force when the suit was instituted.”

36. It is to be noted that article 225 of the Constitution removed the bar previously imposed on the exercise of original jurisdiction by the High Court. Characterising this as a procedural law which was in force at the time of the trail of the suit, it was held as above.

37. It was then contended that section 14(4-A) is a part of the repealing Act. The contention was that it is only an amending Act which if alters the period prescribed for reassessment before the original period fixed had expire would make the altered limitation applicable. That result, it was contended, cannot be produced by a repealing Act in which any such provision is introduced and which has the effect of altering the period prescribed for reassessment. It was urged that there is a distinction between an amending Act and a repealing Act. We find it difficult to accept this contention.

38. The terminology of repeals and amendments, it is true, is usually employed by the Legislature. The Legislatures label their enactments as repeals or amendments. When a section is being added to an Act or a provision added to a section, the Legislatures commonly entitle the Act as amendment. The same term is employed when a provision is withdrawn from a section particularly when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, the Legislature labels the Act accomplishing this result as a repeal. It is, however, recognised that any attempt to make distinction between repeal and amendment is futile. Any such distinction would be arbitrary. It is well recognised that frequently an Act, purporting to be an amendment has the same qualitative effect as a repeal. Thus repeal and amendment are not mutually exclusive terms. They both are frequently applied to the same Act. Particularly in a case of the kind with which we are concerned, where the old law is repealed and the new one is enacted substantially re-enacting the same provisions, there is both a process of repeal and amendment. In essence therefore there is no distinction between repealing laws and the laws which merely profess to amend, If the amendment of the existing law is small, the Act professes to amend. If it is extensive, it repeals the law and re-enacts it. That this is so is seen from N.S Dal Mill v. Firm Sheo Prasad). We do not therefore consider that merely because section 14(4-A) appears in a repealing Act it alters the position in regard to a question of fetter or limitation on the jurisdiction as discussed above.

39. It was, however, strenuously contended by the learned Advocate for the petitioner that as section 41 of the Act expressly saves the right of the assessee not to be assessed beyond a period of three years next succeeding the assessment year, the petitioner could not be assessed after the said period of three years; which would have the effect of affecting the petitioner's said vested right. In support of this contention, strong reliance was placed on an observation appearing in Sales Tax Officer v. Hunuman rrased and also on the following decisions of this court as well as of other High Courts: Swastik Oil Mill Ltd. v. H.B Munshi, S.L Ramanatham v. Commissioner of Commercial Taxes), Kishanlal Oil Mills v. State of Andhra Pradesh), Suryaprakasa Kao v. State(6)), Gian Chand Mehta v. Commissioner of Sales Tax(7)), Ratanlal Hukumchand v. Additional Commssioner of Sales Tax(8)), Deputy Commissioner of Commercial Taxes v. Ramiah Chetty & Co.(9)). and Arya Vaidya Pharmacy Ltd., Palghat v. State Of Kerala(10)).

40. Before we consider the decisions relied upon by the petitioner it is, we think, useful to analyse and appreciate the import of section 41 of the repealing Act. Section 41 repeals several Acts including the repealed Act. There is, however, a proviso in the nature of a saving clause attached to sub-section (1) of that section which effected the repeal of said Acts including the repealed Act.

41. The proviso can conveniently be divided into three parts. The first part declares that such repeal shall not affect (a) the previous operation of the said Acts; (b) any right, title, obligation, or liability already acquired, accrued or incurred thereunder.

42. And subject thereto “……..secondly, it provides:

Anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate, licence, or permit) In the exercise of any power 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

43. thirdly it enjoins that 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.”

44. Sub-section (2) lays down, that, notwithstanding anything contained in sub-section (1) any application, appeal, revision of other proceeding made or preferred to any officer or authority under the repealed. Acts and pending at the commencement of the Act shall be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application etc, under the Act if it had been in force on the date on which such application etc., was made or preferred.

45. A close reading of this section would indicate that firstly it says all the rights and liabilities arising under the repealed Act, and subject thereto, secondly it saves all the actions taken or things done under the repealed Act. Such actions taken or things done are deemed to have been taken or done under the corresponding provisions of the repealing Act. And thirdly it saves the arrears of tax and other amounts due under the repealed Act and directs that they may be recovered as if they had accrued under the repealing Act. Sub-section (2) fourthly directs that all pending cases shall be transferred to and disposed of by the officer or authority constituted under the repealing Act who would have had jurisdiction to entertain such pending cases if the repealing Act were to be-in force when the pending actions were instituted.

46. The contention was that the first part of the proviso is independent and separate from the other two parts of the; proviso. The phrase “subject thereto”, it was argued, creates that result. It was, therefore, argued that the first part saves the right of the petitioner not to be assessed in respect of turnover for 1956–57 after the expiry of three years period prescribed in rule 17 of the Rules made under the repealed Act. We do not think it is possible to accede to this contention. We have already noticed that the vested right does not include the procedure prescribed to enforce such right. The procedure which includes the restriction put on the powers of the assessing authority to reopen the assessment is not a portion of the accrued or acquired right.

47. Now it is true that it is not possible to assign a precise meaning to the terms “vested right”, or “accrued right” for any attempt to define may result only in conflict. Broadly speaking, however, a right is said to be vested when the right enjoyed, present or prospective, has become the “property.” of some particular person as a present interest independent of a contingency. A right which has become vested is not dependent upon the common law or the statute under which it was acquired for its assertion, but has an independent existence. Consequently, the repeal of the statute from which it originated does not efface a vested right but it remains enforceable without regard to the repeal. In-order to become vested, the right must be a contractual right, a property right or a right arising out of a statute which has become perfected to the degree that; the continued existence of the statute cannot further enhance its acquisition. A vested right is usually protected from legislative interference. Since the vested right is considered a “property” it is protected from arbitrary interference. The “property interest, need be no more than the right to enforce a legal demand or a right to exemption, If it is complete and unconditional, and not a mere expectancy.

48. Craies on Statute Law at page 398 quotas the definition of “right acquired” from a decision. He defined “right acquired” as “some specific right which in one way or another has been acquired by an individual and which some persons have got and others have not. It is not a ‘right’ in the popular sense.”

49. It will thus be plain that a substantive right which originates in contract, property or a statute becomes vested when it is complete and not “inchoate”, it is thus a right which is considered, as properly and if is this right that is saved under the first part of the proviso. That part has very little to do with the procedural law including the law of limitation or the provisions relating to restrictions on jurisdiction. It is already seen that no one has a vested right in the procedure. No one can have any right in limitation prescribed for any action or any limits placed on the exercise of any power. Any alteration made in such procedural law does not in any manner affect the vested right.

50. Now, what is the right or liability acquired or incurred under the repealed Act which is saved by the first part of the proviso? The charging section in the repealed Act imposed certain tax at particular point of transaction and at particular rates. The imposition of such a tax by the law Creates a right in the department to recover the tax, of course, after following the prescribed procedure. Correspondingly, it creates a liability on the dealer to pay such a tax. The moment a taxable transaction is entered into, the rights and liabilities are created. The quantification of the tax by adopting the prescribed procedure may determine the quantum of liability. Nevertheless the liability is incurred or the right is accrued to tax on the completion of a taxable transaction. It is this right to recover the tax and it is this liability to pay the tax that are saved by the first part of the proviso. It will be incorrect to confuse the procedure prescribed for quantification of tax or its recovery with the substantive right and liability originated in the charging section of the taxing statute. The procedure thus prescribed and the time-limit placed on the exercise of the power are not portions of the substantive right created by the statute. That this conclusion is right is seen from the various decisions which we have already considered.

51. We find it almost impossible to agree with the contention that the phrase “subject thereto” makes the first part of the proviso independent of the two other parts of the proviso. Nor is it possible to agree with the second limb of the argument, that is, that the first part of the proviso being exclusive and independent carries with the right accrued the procedure together with the fetter of limitation placed on the exercise of the power to reopen. In. regard to the Second limb of the argument we have already held that the procedure prescribed to enforce a substantive right is not a part of the substantive right. What remains to be considered, therefore, is what the meaning of the term “subject thereto” is.

52. This very phrase occurring in the repealed Act, fell for consideration of the Supreme Court in Balakrishna Chetty & Sons v. State of Madras, it is observed:

“On a proper interpretation of the section it only means that the exemption under the licence is conditional upon the observance of the conditions prescribed and upon the restrictions which are imposed by and under the Act whether in the rules or in the licence it self, i, e., a licensee is exempt from assessment as long as he conforms to the conditions of the licence and not that he is entitled to exemption whether the condition upon which the licence is given are fulfilled or not. The use of the words subject to has reference to effectuating the intention of the law and the correct meaning, in our opinion, is ‘conditional upon.”

53. The same term was considered by a Division Bench of the Bombay High Court in Simon Reuben v. Haji Shaik Mohd. Shustary. It is observed

“….and the words ‘subject to the conditions and entering into regular lease a condition precedent to the parties coming to a definite agreement. The effect of the words ‘subject to’ is to introduce a condition or proviso.”

54. What is clear is that the words “subject thereto” can only mean conditional upon the existence of the accrued or acquired right or a subsisting liability incurred under the repealed Act. The term, in other words, Introduces a proviso which can mean only that the subsequent parts of the proviso would be attracted provided the accrued or acquired right or the incurred liability subsists on the day of the commencement of the repealing Act. It is obvious that unless and until the rights created under the repealed Act or the liability incurred under it subsists and is alive on the date of the commencement of the repealing Act, the question of what procedure thereafter should be adopted to enforce such subsisting right or liability could not arise. If the right or liability has ceased under the repealed Act before the repealing Act came into force, it is plain that such a right or liability not being revived by the first part of the poviso, it cannot be enforced. It merely preserves vested right or liability which is yet to be enforced If the interpretation sought to be placed on the term “subject thereto” is to be accepted, then the rest of the proviso and sub-section (2) would become otiose. When the second part of the proviso validates all actions taken or things done under the repealed Act and says that they shall be deemed to have been done or taken under the repealing Act, and when the third part of the proviso says that the tax due at the commencement of the repealing Act may be recovered as if the tax has accrued under the repealing Act, it only means that the proviso after preserving the vested and subsisting rights and liabilities and validating the actions so far taken or things done applies the procedure of the new Act to complete the proceedings of not only the imposition of tax but also for its recovery. If it is once remembered that this is a case of repeal and re-enactment, then it will not be difficult to appreciate as to why section 41 provides this unusual form of repeal and saving clause. Ordinarily when an Act is repealed, without anything more, the provisions of section 8 of the Andhra Pradesh General Clauses Act would apply and in such case it may perhaps be argued that the old rights have to be worked out according to the old law if they are saved. But it must be remembered that section 4 of the said Act says that Chapter 2 shall apply to all State Acts after the commencement of the State Act but enjoins that “unless a contrary intention appears in such Acts”. It becomes therefore necessary to first examine whether the repealing Act expressed any contrary or different intention and if it does it is obvious that section 8, which is a part of Chapter 2, shall not apply. In our judgment, section 41 expresses such a contrary or different intention manifestly. It, as stated earlier, saves rights and liabilities arising under the repealed Act. It not only validates the actions taken or things done but authorises the proceedings etc. to be transferred to the authorities under the repealing Act with a view to complete them under the provisions of the repealing Act. It further directs that the tax and other money due under the repealed Act should be recovered under the repealing Act. In all such cases a deeming provision to the effect that as if the new Act were then in force, has been introduced. It thus takes over everything of the repealed Act as if it was under the new Act and sets the machinery of the repealing Act in the place of the repealed Act to complete the proceedings.

55. And it cannot be in doubt that when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and in fact bound to ascertain for what purpose and between what persons the statutory fiction is intended to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. That this it so can be seen from State of Bombay v., Panduranga and Income-tax Conmissoner v. Teja Singh.

56. We have, therefore, no hesitation in rejecting the contention of the petitioner. Our conclusion in regard to the interpretation of section 41 of the repealing Act is well supported by a decision of the Supreme Court in. Indira Sohanlal v. Custodian Of Evacuee Property, Delhi & Others Property.

57. In that case a somewhat similar provision came up for consideration of the Supreme Court. Section 40 of the East Punjab Act 14 of 1947 was replaced by Central Ordinance No. 12 of 1949. Section 40, therefore, which repealed the previous Act provided that action taken or thing done, penalty incurred or proceedings commenced under the repealed Act shall be deemed to have been taken, done, incurred or commenced under the new Act, “as if this Ordinance were in force when such thing was done, action taken, penalty incurred or proceeding commenced”. The said Ordinance in turn was repealed, by Central Ordinance 27 of 1949. The repealing section 55 was almost on the same lines. The said Ordinance in its turn was repealed by Central Act 31 of 1950. Section 58 of the repealing provision thereof was as follows:

“58(1) The Administration of Evacuee Property Ordinance, 1949 (27 of 1949) is hereby repealed.

(2) ***

(3) The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (27 of 1949)………….shall not affect the pervious operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance 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 day on which such thing was done or action was taken.”

58. It was observed that this kind of provision in a repealing Act appeared father unusual. It was held:

“Therefore, where as in this case, the repealing section, which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of section 6 of the General Clauses Act. We are. therefore, of the opinion that the said section cannot be called in aid in this case”

59. This conclusion of ours in regard to the interpretation of section 41 strengthens our conclusion that section 14 (4-A) is applicable to the present case, and consequently the reopening of the assessment was well within the prescribed limit of time and within the power of the assessing authority.

60. Let us then examine the cases relied upon by the learned Advocate for the petitioner.

61. Strong reliance was placed on Sales Tax Officer, Circle-I, Jabalpur v. Hanuman Prasad, a decision of the Supreme Court. Since the argument was mainly based upon an observation made in this judgment, we consider it necessary to carefully read the decision. The facts were that the respondent filed his return for the period from 3rd November, 1956, to 23rd October, 1957. The Sales Tax Officer, however, issued notice on 10th March, 1959. Subsequently on 23rd May, 1959, the respondent was assessed to tax under the repealed Act. On 1st April, 1959, the Madhya Pradesh General Sales Tax Act (2 of 1959) came into force. On 23rd October, 1962, the Sales Tax Officer issued notice under section 19(1) of the new Act for reassessment. The respondent raised a preliminary objection that since he was assessed under the old Act under which three years period was prescribed for reassessment, which period was over, there was no right of reassessment. The objection was rejected. The respondent then went to the High Court in writ petition. The High Court held that the period which governed the assessment was under the old Act and as a result the proceedings were barred by time. On appeal to the Supreme Court, the contention was that the new Act governs the proceedings and not the old one.

62. Section 19(1).of the new Act categorically stated that where an assessment has been made “under this Act” and the Commissioner is satisfied that the transaction chargeable to tax “under this Act” has escaped assessment, he may within five years from the expiry of such year reassess the tax payable.

63. The proviso to the section is more emphatic when it says that in the case of an assessment made under the repealed Act, the period of reassessment of an escaped turnover shall be as provided “in such Act notwithstanding the repeal thereof”.

64. Section 11-A(1) had provided three years period for reassessment.

65. It is in these circumstances stated it was held that although the assessment was made on 23rd May, 1959, shortly after the new Act came into force, Since the assessment was made under the repealed Act, the proviso to section 19(1) of the new Act was applicable to the case of the respondent. As a result of that proviso the period of reassessment was as provided in section 11-A(1) of the repealed Act, i. e. 3 years and not five years, as is provided in the new Act. Consequently the notice dated 23rd October, 1962, was found to be beyond the period of limitation.

66. In so far as this portion goes there can be little doubt that the conclusion is in accordance with section 19(1) in general and the proviso in particular.

67. The Supreme Court, however, made the following observation in reaching the same conclusion on an alternative ground:

“In the alternative this question may be examined in another aspect. Section 11-A (1) of the repealed Act itself created a right in favour of the respondent not to be assessed in respect of turnover that was under-assessed or had escaped assessment after the expiry of the period prescribed in that sub-section. The proviso to section 52 of the new Act preserved this right of the respondent, and on this ground also, the Sales Tax Officer was not competent to issue the notice for reassessment after the period of limitation had expired.”

68. The contention was that the proviso to section 52 of the Madhya Pradesh Act is in pari materia with the, proviso to section 41 of the repealing Act and therefore we should hold that the first part of the proviso not only preserves the substantive right but along with it the right to be assessed within three years is also saved.

69. If the above said observation is readout of context, it is perhaps likely to give the impression that the reassessment within a prescribed period as a whole is a substantive right which can be said to have been preserved; by section 52 of the Madhya Pradesh Act. But on a closer examination it will be clear that any such impression is wholly unwarranted and unjustified. Earlier to the said observation their Lordships expressly defined as to what are the rights and liabilities which are preserved by the proviso to section 52.

“The rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force. The repealed Act laid down what turnover was taxable, how it was to be computed, and at what rate the tax was to be charged. These provisions clearly created rights as well as liabilities of dealers. Those rights and liabilities were thus preserved by section 52 of the new Act.”

70. These observations make it abundantly clear that the right to be assessed in accordance with the provisions of the repealed Act was paraphrased by their Lordships when it is stated what turnover was taxable, how it was to be computed and at what rate the tax has to be charged. They did not include any right in procedural law prescribed for giving effect to such a right.

71. This should be enough to dispel any doubt. It is clear that their Lordships never considered the procedural law prescribed for the enforcement of the right to be part of the right to collect the tax which can be said to have been saved If it is remembered that under section 19(1) and particularly the proviso to it the period prescribed under the old law for reassessment was made expressly applicable to the reassessment to be made under the old law and the new law was made applicable to cases of assessment or reassessment arising after the new Act came into force, it would not be difficult to correctly appreciate the meaning and implication of the above-said observation. The whole case really turned on the proviso and language of section 19 of the new Act which provision of law could not leave anyone in doubt.

72. The observation that section 11-A(1) of the repealed Act itself created a right in favour of the respondent not to be assessed in respect of turnover that was under-assessed or had escaped assessment after the expiry of the period prescribed in that sub-section has therefore to be understood in the light of the position of law laid down in section 19 of the new Act, the proviso of which attracted the provisions of Section 11-A (1) of the repealed Act prescribing three years' time for reassessment in case of assessment made under the old Act. The observation is obviously made in view of the fact that it is section 11-A(1) that was applicable to the case before their Lordships and because three years had elapsed when the notice was issued.

73. Moreover section 52 cannot be said to be identical in terms with section 41 of the repealing Act, Apart from the fact that in the Act with which we are concerned there is no provision on the lines of section 19 of the Madhya Pradesh Act, in fact section 14 (4-A) of the repealing Act provides otherwise. It alters the period of assessment prescribed under the old Act and makes the altered period applicable to the reassessment made under the old as well as the new Act after it came in to force. Section 41 is wider in its scope than section 52 of the Madhya Pradesh Act. Section 52 does not seem to have a parallel provision as in sub section (2) of section 41. It has in fact no parallel provision to the third part of the proviso to section 41. Merely because the proviso to section 52 is somewhat parallel to the first and second parts of the proviso to section 41, it would incorrect to apply the interpretation placed on section 52 to the interpretation of section 41. The schemes of the Madhya Pradesh Act and that of the repealing Act in this respect materially differ. In the Madhya Pradesh case, the question of alteration of period by a new Act could not have arisen for debate because of the clear language of section 19. The question of the application of the old procedure on the other hand cannot arise in our case because of the clear language, of section 14(4-A) and the widely worded section 41 of the repealing Act. While the intention of the Madhya Pradesh Legislature in enacting section 52 read with section 19 appears to be clear that the old reassessment should be made under the old Act and the new assessment and reassessment should be made under the new Act, in our case all the pending cases have been taken over by the new Act. The recovery of tax due has to be made under the repealing Act the substantive right and liabilities are enforced according to the repealing Act. We are, therefore, satisfied that the two situations materially differ and therefore the observation of the Supreme Court relied on cannot be applied to the present case. Firstly, the import of the said observation is not appreciated correctly and secondly, the observation has to be necessarily read in the context of the facts of that case. The said observation is made because on 23rd October, 1962, when the notice for reassessment was issued, it was completely time-barred because the proviso to section 19(1) had made the period prescribed under section 11-A(1) applicable to that case. When the department's right to tax or the liability of the assessee to pay had ceased after three years, there was no occasion for the assessing authority to reassess under the law on the day when the notice was given. It is to this aspect of the case that reference is made in the said observation. The new Act had not revived such a lost light to be enforced under the Act. In view of the clear language of the provisions referred to above, the Supreme Court has made the said observation. It would be incorrect to infer from such observation that the procedure prescribed to enforce accrued right or incurred liabilities is considered as a portion of that right or liability and is thus preserved. Any such inference would be contrary to the earlier observation to which we have made reference and would be quite contrary to the principles of interpretation of statute and would go against the earlier decisions of the Supreme Court and of the High Courts to which we have already made reference. We are, therefore, clear in our mind that the said observation has to be understood in the context of the facts and the provisions of the law involved in that case. It has no bearing whatsoever on the present case. It does not go contrary to what we have stated in regard to section 41 as the two provisions substantially differ and are enacted to effectuate different schemes.

74. The second case relied on is Swastik Oil Mills v. H.B Munshi. That case also can easily be distinguished. It would be evident that it has no relevance to the facts of the present case. In that case the assessment related to a period between 1st April, 1948, and 31st March, Rejecting certain claims of the assessee, the assessment order was made on 2nd January, 1954. The appellate authority, however, by its order dated 29th October, 1956, allowed the claims of the assessee in part and reduced the tax. The assessee filed the revision which was pending.

75. During the pendency of the revision, a notice of reassessment was issued on 7th January, 1963. The contention was that on the day of the notice the Act of 1959 had come into force and as a result the 1953 Act was repealed and therefore the revisional jurisdiction could be exercised only under the 1959 Act. The contention war repelled. After considering section 77 of the 1959 Act, it was held that its effect was to continue in force the two earlier Acts of 1953 and 1946. Section 77(3) applied the provisions of section 7 of the Bombay General Clauses Act which provision is similar to section 8 of the Andhra Pradesh General Clauses Act, clause (e) of which saved the pending proceedings which would be continued under the repealed Act as if the repealing Act had not come into force.

76. It is immediately plain that section 41 of the repealing Act does not make the provisions of section 8 of the General Clauses Act applicable.

77. On the other hand it expresses a different intention and evolves its own scheme thereby making the application of section 8 impossible.

78. The next case to be considered is Arya Vaidya Pharmacy Ltd., Palghat v. State Of Kerala, a decision of the Kerala High Court. In that case on 1st April, 1963, the new Act repealing the old one came into force. Notice of reassessment was issued on 8th October, 1963. The assessment year was 1960–61, The High Court held that by virtue of section 4 of the General Clauses Act, which section is equal to section 8 of the Andhra Pradesh General Clauses Act, the liability which was saved could be enforced under the old laws are if the repealing Act had not been passed. The contention that section 16 of the repealing Act expressed a different intention was repelled. The provision extracted in the judgment would indicate that the repealing and saving section is parallel only to the first and second parts of the proviso to section 41 of the repealing Act. It has no provision on the lines of the third part of the proviso and that of sub section (2). The observation was made on the basis of agreement of parties that the opening portion of the proviso saves the rights and liabilities arising under the old Act and that “the remaining portion of the proviso is subject to the opening portion and therefore cannot control the saving effected thereby.” On an interpretation of section 61, it was held that there is nothing which can be construed as manifesting a different intention and that is why the provisions of the General Clauses Act were considered to be applicable. Even otherwise, in that case the period of three years prescribed by the repealed Act had not expired on the day when the new Act came into force. That decision, is not of much use to the petitioner. The Act made clear provisions for applying the old law to the old reassessment, a case different from the one with which we are concerned.

79. The case reported in Giant Chand Mehta v. Commissioner of Sales Tax is of the Madhya Pradesh High Court. We have already referred in detail to the position of law existing in that State and held that it is different from the law with which we are concerned. The conclusion in that case was drawn relying upon the decision of the Supreme Court in Sales Tax Officer v. Hanumm Prasad. we have already considered that decision in detail and do not therefore feel the necessity of commenting any further on the said decision of the Madhya Pradesh High Court.

80. The other decision in that volume is of the Madras High Court reported as Deputy Commissioner of Commercial Taxes v. Ramiah Chetty & Co. It is true that in that case the proviso to section 61 of the 1959 Act was somewhat similar to the proviso to section 41. It is not, however, clear from the judgment whether there is a parallel provisions to sub section (2). It is unnecessary to consider whether the facts of that case and the law with which their Lordships were concerned really fell within the ratio of Sales Tax Officer, Circle-I, Jabalpur v. Hanuman Prasad. The Madras High Court seems to have thought that the provisions of the Madhya Pradesh Act were more or less like the provision to section 61. They relied on the Supreme Court decision in Sales Tax Officer, Circle-I, Jabalpur v. Hanuman Prasad. We have already considered that decision. The Madras decision also turned upon the question whether the Assistant Commercial Tax Officer had jurisdiction as an original authority to make the order which he did, a proposition with which we are not concerned in this case. It is relevant to note that Madras Act 10 of 1963 by then had com; into force with retrospective effect. Their Lordships considered that the Act would not alter the position as the new Act directs that any right acquired or liability incurred and any legal proceedings instituted etc. in respect of it shall be viewed as if the amending Act has not been passed. We do not therefore think that there is any relevance between that case and the case before us.

81. In S.L Ramanatham v. Commissioner of Commercial Taxes, a Bench of this court was concerned with a case in which section 15 of the Hyderabad General Sales Tax Act fell for consideration. The facts were that the assessee submitted his return for the year ending 31st March, 1957, under the Hyderabad Act. On 15th June, 1957, the Andhra Pradesh General Sales Tax Act came into force repealing the Hyderabad Act. On 14th March, 1958, notice was issued and on 17th March, 1958, the assessment order was made applying the rates under the Hyderabad Act. on 10th September, 1963, the Commissioner of Commercial Taxes proposed to revise the assessment on certain grounds. The assessee filed a petition for the issue of a writ of prohibition contending that as the assessment was made under the new Act, the proposed revision was time-barred under section 20(3) of that Act which prescribed four years period, whereas under section 15 of the Hyderabad Act, no period of limitation was prescribed for exercising powers of revision. It is in those circumstances that it was held that the assessee cannot claim the benefits of the provisions of the repealed Act which are advantageous to him and at the same time disown the liability of being reasessee in exercise of the powers under the repealed Act. Although the assessment order was made subsequently, the proceedings were initiated under the old Act and therefore the petitioner cannot, it was held, succesessfully set up the repealing Act, to evade his liability, which is saved. It was argued that it was not doubled that the right of revision is a remedy just like a right of action or appeal which is saved and it is in that context that the decision was given.

82. No argument on the interpretation of section 41 seems to have been advanced although there is a passing reference to section 41. The question in regard to the limitation was not canvassed urging that although the repealed Act bad not prescribed any limitation for the exercise of revisional powers, a period of limitation for the first time has been fixed by the new Act and persuaded the court to consider that question. That is why this aspect was not considered or decided. In these circumstances, it cannot be said that the said decision decides anything which is inconsistent with what we have said in this judgment. Similar is the case with regard to another decision of this court reported in Kishanlal Oil Mills v. State of Andhra Pradesh. In that case the question of limitation was expressly given up by the dealer before the Sales Tax Appellate Tribunal. It was, therefore, held that it cannot be agitated in revision before the High Court.

83. In that case the assessment years were 1953–54 and 1954–55. The returns were filed in 1954. The assessments were, however, completed in 1959 after the Hyderabad Act was repealed. It was in these circumstances, following the earlier decision of this court reported in. S.L Ramanatham v. Commissioner of Commercial Taxes,. held that since there was no time-limit for completing the original assessment under the Hyderabad Act and as section 41 of the Andhra Pradesh General Sales Tax Act saved the right of the department to assess without time-limit and the liability of the dealer to be so assessed, the assessments were valid in law. No argument as was advanced in this case seems to have been advanced before the Bench that the right accrued does not include the procedural law prescribed for the enforcement of such a right, and consequently this aspect was not considered and decided. It was not laid down that a person has a vested right in the procedure or limitation prescribed for enforcement of (he substantive right. The distinction between the two was not canvassed before the Bench. The said decision is silent in this respect and it cannot therefore be urged that the said; decision decides anything contrary to what we are laying down. In so far as the interpretation of section 41 is concerned, the said decision therefore or for that matter the earlier decision on which it placed reliance cannot be said to be an authority for the proposition that the right accrued includes the right to a particular procedure or a limitation prescribed for the purpose of enforcement of such right. In other words, the procedure or limitation is a portion of the main substantive right.

84. The decision in Suryaprakasa Rao v. State, does not help the petitioner. In fact to an extent it goes quite contrary to the petitioner's submission when it held that though in respect of recovery of tax, the procedure prescribed under the new Act is applicable under the second part of the first proviso to section 41. The main proposition laid down in that case that the assessee having been assessed under the old Act has a right to insist that Whatever liabilities have been incurred by them cannot be altered or effected to their disadvantage does not call for any examination in this case. In that case the question was whether the penalty can be levied in regard to an assessment made under the old Act. It was held that “the assessee cannot be subjected to any penal consequences by way of levy of interest or penalty if there is no express provision which provides for such an action.” We are not concerned with any such proposition in the present case. Nothing else was pointed out to us from the said decision which can be said to be contrary to what we have said in our judgment.

85. What must follow from the above-said discussion is that since the period prescribed for the exercise of the power to reassess under rule 17 of the Rules made under the repealed Act had not expired on the date when the repealing Act came into force, and since the right to tax and liability to pay were subsisting and were saved and as section 14(4-A) enlarged the period of limitation, it is the new Act, that is to say section 4(4-A), that would apply to the present case. Section 41 preserves the subsisting rights and liabilities arising out of the repealed Act, but prescribes procedure and limitation for their enforcement under the new Act. From that point of view also, it is the period prescribed under section 14(4-A) that would govern the instant case. As seen above it was conceded that if section 14(4-A) applies, then the jurisdiction of the assessing authority could not be said to have been barred on the relevant dates. The assessing authority therefore was well within its jurisdiction in initiating and concluding the proceedings of reassessment within the time prescribed by section 14(4-A). The order of the Sales Tax Appellate Tribunal, therefore, cannot be said to be bad in law.

86. The tax revision case is dismissed with costs. Advocate's fee Rs. 250.

87. Petition dismissed.