1. In all these writ petitions, the validity of the first proviso to sub-section (1) of Section 19 as well as sub-section (2) of Section 21 of the Andhra Pradesh General Sales Tax Act, 1957 as substituted by Act No. 8 of 1997 with effect from 4-1-1997 is questioned on various grounds.

2. Since a common issue is raised in all these writ petitions, they are being disposed of by the following common order.

3. Sections 19 and 21 of the Andhra Pradesh General Sales Tax Act, 1957 (for short "the Act") deal with the provisions of appeal before appropriate authorities.

4. Section 19 (1) and the First Proviso thereto of the Act provides thus:

(1) Any dealer objecting to any order passed or proceeding recorded by any authority under the provisions of this Act other than an order passed or proceeding recorded by an Additional Commissioner, Joint Commissioner, Deputy Commissioner under sub-section (4-C) of Section 14 may within 30 days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed :

" Provided that the Appellate Authority may within a further period of thirty days admit the appeal preferred after a period of thirty days if he is satisfied that the dealer had sufficient cause for not preferring the appeal within that period."

Likewise, Section 21 and Sub-section (2) thereto of the Act provides thus :

(1)Any dealer objecting to an order passed or proceeding recorded-

(a) by any prescribed authority on appeal under Section 19, or

(b) By the Additional Commissioner, or Joint Commissioner or Deputy Commissioner under Section 14 or under sub-section (2) of Section 20 may appeal to the Appellate Tribunal within 60 days from the date on which the order or proceeding was served on him.

(2) The Appellate Tribunal may within a further period of sixty days admit the appeal preferred after the period of sixty days specified in sub-section (1), if it is satisfied that the dealer had sufficient cause for not preferring the appeal within that period.

5. The First Proviso to Section 19 of the Act was amended by Act No. 22 of 1995 with effect from 1-4-1995 and again the abovementioned First Proviso was substituted by Act No. 8 of 1997 with effect from 4-1-1997. Insofar as sub-section 2 of Section 21 of the Act is concerned, amendment is brought to this section by act no. 8 of 1997 which came into effect from 4-1-1997.

6. Prior to the amendment, the First Proviso to sub-section (1) of Section 19 of the Act, stood thus :

"Provided that the appellate authority may admit an appeal preferred after a period of 30 days aforesaid, if he is satisfied that the dealer had sufficient cause for not preferring the appeal within that period."

7. Likewise, sub-section 2 of Section 21 of the Act prior to the Amendment by Act No. 8 of 1997, stood thus :

"The Appellate Tribunal may admit the appeal preferred after the period of 60 days mentioned in sub-section (1) if he is satisfied that the dealer had sufficient cause for not preferring the appeal within that period."

8. The main grievances of all the learned counsel appearing on behalf of these petitioners are that Section 19 of the Act provides for filing an appeal by the Dealer objecting to any order passed or proceeding recorded by any authority, and the time stipulated is 30 days from the date of service of the order or proceeding on him. However, before the impugned amendment, under the First Proviso to sub-section (1) of Section 19 of the Act, the Appellate Authority had discretion to admit an appeal preferred after expiry of 30 days period if there are justifying reasons shown by the dealer to the appellate authority. It is the complaint of all the counsel that by virtue of the amendment brought to First Proviso to sub-section (1) of Section 19 initially in the year 1995 which came into force from 1-4-1995 and later by the impugned amendment No. 8 of 1997 came into force from 4-1-1997, the discretionary power of certain authorities to condone the delay of any period is restricted to 30 days only. Likewise, Section 21 of the Act provides preferring an appeal before the Appellate Tribunal and under sub-section (2) of Section 21 of the Act, the Appellate Tribunal had the discretion to condone the delay of any period over and above the statutory period of 60 days in preferring the appeal if the dealer assigns satisfying reasons in filing the appeal belatedly. However, by virtue of the impugned Amendment No.8 of 1997 brought to sub-section (2) of Section 21 which came into force with effect from 4-1-1997, the discretion available to the Appellate Tribunal to condone the delay of any period is now restricted to 60 days only.

9. Learned counsel appearing voice their grievances contending that the impugned amendments brought to the First Proviso to Section 19 and sub-section (2) of Section 21 are in the nature of offending Articles 14 and 19(1)(g) of the Constitution of India as it discriminates between the categories of appellate authorities and stated that the impugned amendment has to be declared as ultra-vires the provisions of the A.P.G.S.T. Act. Counsel also submitted that a right of an appeal is not merely a matter of procedure but is a substantial right and the said right vested in the petitioners when their returns are submitted to the first respondent. Elaborating further on this aspect, learned counsel stated that the returns were submitted to the appropriate authority prior to the impugned amendment and as such, the legal position governing prior to the impugned amendment is available to the petitioners i.e., petitioners have a right to get the appeal admitted beyond the stipulated period of 30 days before the First Appellate Authority and beyond the stipulated period of 60 days before the Appellate Tribunal. It is further submitted that the vested right accrued to the petitioners cannot be curtailed by the impugned amendments. It is also contended that the impugned amendments brought to Sections 19 and 21 of the Act are only prospective in nature and cannot have retrospective operation unless it is specifically indicated in clear terms that such amendment shall have retrospective effect. Counsel stated, in the absence of the Legislature indicating that the amendments brought to these sections shall have retrospective effect, the appellate authorities could not have applied the impugned amendments retrospectively thereby denying these petitioners the benefit which was available to them prior to the impugned amendment to condone the delay of any period if sufficient reasons are assigned. In support of their contentions, learned counsel cited the following decisions reported in K. BALAKRISHNAIAH Vs. COMMERCIAL TAX OFFICER, MAHABOOBNAGAR AND OTHERS, VOLUME 29 STC 328 HOOSEIN KASAM DADA (INDIA) LTD. Vs. THE STATE OF MADHYA PRADESH, VOLUME 4 STC 114 K.M.S. LAKSHMANIER & SONS (P) LTD., Vs. THE SALES TAX APPELLATE TRIBUNAL, HYDERABAD, VOLUME 20 STC 103 STATE OF ANDHRA PRADESH Vs. HINDUSTAN SHIPYARD LIMITED AND OTHERS, VOLUME 68 STC 220 and in HUGS ADVERTISING INDUSTRIES AND OTHERS Vs. COMMERCIAL TAX OFFICER, VADAPALANI ASSESSMENT CIRCLE, CHENNAI, VOLUME 119 STC 591.

10. On behalf of the respondents, the learned Government Pleader submitted that the right to appeal though is a substantive right, but such right to appeal is not taken away by the impugned amendment. According to the learned Government Pleader, the initial period of 30 days in preferring an appeal under Section 19 and the 60 days period in preferring an appeal under Section 21 of the Act are not done away with, but the unlimited and unfettered discretionary power to condone the delay of any period conferred on the first appellate authority and Sales Tax Appellate Tribunal alone is restricted to 30 and 60 days, respectively. Learned Government Pleader stated that as provided under Sections 19 and 21, the dealer after service of order on him by the Department is entitled to prefer an appeal before the first and second appellate authority, as the case may be, within 30 and 60 days respectively. The appellate authorities are entitled to condone further delay of 30 and 60 days respectively if an appeal is filed under Sections 19 and 21 as the case may be, if the appellate authority is satisfied that there are sufficient reasons to condone the delay.. Prior to amendment the unlimited discretionary power was available to these authorities prior to condone the delay. However, such exercise of unlimited discretionary power was found to be not in the interest of the Revenue as these authorities were condoning the abnormal delays, resulting in prolonged litigation and as such, it was thought it fit that such unlimited discretionary power be restricted and accordingly, the impugned amendment has been inserted which came into force from 1-4-1997. Learned Government Pleader submitted that though the right to appeal is a statutory right, the provisions relating to condonation of delay are procedural in nature and as such, when a time limit is prescribed through the impugned amendment for condonation of delay, there cannot be any grievances by the petitioners as if their right to prefer an appeal is taken away or curtailed. Learned Government Pleader submitted that the decisions cited on behalf of the petitioners are not directly related to the questions raised in these writ petitions and as such they are of no avail to them. Learned Government Pleader also submitted that challenge to a provision of the Act could be made by an aggrieved party before the Constitutional Courts exercising jurisdiction under Articles 226 and 227 of the Constitution of India only if the Legislature had lacked the competency and if such provision affects fundamental rights. In support of his varied contentions, learned Government Pleader placed reliance on the decisions reported in STATE OF ANDHRA PRADESH Vs. McDOWELL AND CO. AND OTHERS, STATE OF ANDHRA PRADESH Vs. KOTHURI VENKATESWARLU AND SONS, VOLUME 85 STC 334 HARDEODAS JAGANNATH Vs. THE STATE OF ASSAM AND OTHERS, VOLUME 26 STC 10 and in VINOD GURUDAS RAIKAR Vs. NATIONAL INSURANCE CO.LTD, .

11. In the light of these submissions, we shall now proceed to examine the correctness or otherwise of the submissions made on behalf of the petitioners in these writ petitions who seek a Writ or direction declaring the First Proviso to sub-section (1) of Section 19 and sub-section (2) of Section 21 of the APGST Act as redundant to the provisions of Articles 14, 19(1)(g) of the Constitution of India and consequently, to quash the proceedings of the second respondent impugned in these writ petitions.

12. In order to decide the common issue raised in all these writ petitions, it would be appropriate to narrate facts of one writ petition so that the correctness of the challenge to the impugned amendment could be appreciated. For this purpose, we record the facts relating to Writ Petition No. 2372 of 1999.

13. Petitioner in this Writ Petition is engaged in the business of firewood and is an assessee on the rolls of the first respondent. The first respondent by proceedings dated 27-2-1998 for the assessment years 1993-94 and 1994-95, made best judgment assessments on a Gross and Net Turnover of Rs.9,19,793/- and Rs.10,88,178/-. The said assessment orders were served on the petitioner on 3-3-1998. Petitioner filed appeal before the second respondent-Appellate Deputy Commissioner, Guntur on 3-8-1998 along with stay petition seeking stay on collection of disputed tax. Since there was a delay in preferring the appeal within the statutory period of 30 days provided under the Scheme of the Act, petitioner filed a petition for condonation of delay of four months and enclosed a medical certificate. The second respondent by his proceedings dated 19-9-1998 rejected the petition filed for condonation of delay of four months, on the ground that the discretion available to him as per the amendment brought to the first proviso to sub-section (1) of Section 19 of the Act is only 30 days and as such, recorded the reasons that he cannot stretch his discretion beyond 30 days. Though a second appeal is available to the petitioner to the Sales Tax Appellate Tribunal under Section 21 of the Act, against the order passed by the first appellate authority, it would appear that since the Sales Tax Appellate Tribunal had already taken a view, refusing to condone the delay of beyond 60 days in case of SRI LAKSHMI ROJA OIL PRODUCERS Vs. STATE OF ANDHRA PRADESH in TMP No. 55 of 1997 in A.R. No. 164/97 dated 24-11-1997 holding that it could exercise its discretion to condone the delay only upto 60 days as per the amendment to sub-section (2) of Section 21 of the Act in terms of the amendment act no. 8 of 1997.Petitioner having known about the view taken by the Sales Tax Appellate Tribunal in the said proceedings, felt that it would be an exercise in futility to approach the Tribunal by way of a second appeal, has chosen to approach this Court invoking Article 226 of the Constitution of India challenging the impugned amendment brought to Sections 19 and 21 of the Act. Incidentally, petitioner has also sought a consequential relief of quashing the order of rejection made in the condone-delay petition by the first appellate authority-2nd respondent.

14. Firstly, we shall proceed to answer the ground taken by the petitioners that the amendment brought by the Legislature to Sections 19 and 21 of the Act is violative of Article 14 of the Constitution of India.

15. Sri S. Krishna Murty, counsel for the petitioner in Writ Petition No. 2327 of 1999 in an effort to convince us that the impugned amendment affects the rights guaranteed to the petitioners under Article 14 of the Constitution of India, placed reliance on a decision in K. BALAKRISHNAIAH's case (1 supra).

16. Article 14 enjoins upon the State not to deny to any person equality before law or equal protection of laws within the territory of India. The question which fell for consideration in the said case was whether the provisions under Section 21(6) of the Act, 1957 which insisted on satisfactory proof of payment of tax as a condition precedent for the entertain ability of the appeals specified in section 21(6) offended Article 14 of the Constitution of India. It was contended by the State that appeals provided under the Act were particularly classified into two categories, viz., appeals from original orders or proceedings and appeals from appellate orders or proceedings and that Section 21(6) was attracted only in cases of latter category of appeals and that the classification had nexus with the objects sought to be achieved under the Act, i.e., to facilitate collection of tax and discourage frivolous appeals. In that context, a Division Bench of this Court held that the classification, besides being unreasonable and discriminatory, had absolutely no connection with the object sought to be achieved by the Act and that Section 21(6) was violative of Article 14 of the Constitution.

17. As discussed, the facts obtaining in these writ petitions are otherwise. In this case, there is no classification of appellate forums into two categories and providing certain powers to one appellate forum and denying such powers to another. What is curtailed is the unlimited discretionary power which was available to these authorities to condone the delay of any period. By the impugned amendment, right to appeal is not taken away. Even the discretionary power to condone delay in filing appeals is also not taken away totally. Only the unlimited discretionary power to condone the delay of any period which was available to the first and second appellate authorities was restricted to 30 and 60 days respectively.

18. Right to file an appeal is a substantive right vested in the party and whereas filing a petition for condonation of delay is procedural in nature. It cannot, therefore, be said that the impugned amendment offends the rights of the petitioners under Article 14 of the Constitution of India. We, therefore, reject the contention of the petitioners in this regard.

19. We shall now examine the other decisions cited on behalf of the petitioners on the question whether the impugned amendment is retrospective or prospective in operation ?

20. In support of their claim that the impugned amendment is only prospective in effect and not retrospective, learned counsel appearing on behalf of the petitioners placed reliance on the decisions cited (2 to 5) supra. In all these cases, we must say without any hesitation, the question involved is right of an appeal by the assesses and the effect of withdrawing the ancillary powers available to the appellate authority while granting stay. We shall now refer to the facts of each case and the proposition laid down therein, in order to ascertain whether the ratio laid down therein could be made applicable to the cases on hand.

21. In HOOSEIN KASAM DADA (INDIA) LIMITED's case (2 supra), the Supreme Court held that a right to appeal is not merely a matter of procedure but it is a matter of substantive right, a pre-existing right of appeal is not destroyed by an amendment if the amendment is not made retrospective by express words or necessary intendment. It was further held that a provision which is calculated to deprive an assessee of the unfettered right of appeal cannot be regarded as a mere alteration of procedure.

22. In HINDUSTAN SHIPYARD's case (4 supra), a Division Bench of this Court while considering the powers of the Tribunals to grant stay of recovery of tax pending appeal, held that the substantive powers given to the Appellate Tribunal to entertain and hear appeals flows the ancillary or incidental power to grant stay of collection of tax pending disposal of appeals by it. This ancillary power is not merely a procedural one and is not separable from the substantive power of hearing appeal. Therefore, when the Andhra Pradesh General Sales Tax (Amendment) Act, 1985 was brought by the introduction of sub-sections (6) and (6-A) to Section 21 of the Act with effect from 1-7-1985 depriving the Tribunals altogether the power of granting stay of collection of tax pending an appeal, the amendment cannot be taken to have retrospective effect. The power of the Tribunals to grant stay is preserved in respect of all appeals relating to assessment years falling prior to 1-7-1985 and in respect of provisional assessment proceedings falling prior to 1-7-1985.

23. In HUGS ADVERTISING INDUSTRIES case (5 supra), a Full Bench of the Tamil Nadu Taxation Special Tribunal while examining the provisions under the Tamil Nadu General Sales Tax (Fourth Amendment) Act, 1999 which amended sections 31, 31-A, and 36 of Tamil Nadu General Sales Tax Act, 1959 making payment of 25 per cent of the disputed tax a condition for entertaining appeals there under, while referring to various decisions of the Supreme Court as well as other High Courts including that of the decision in 4 STC 114 (cited 2 supra) held that the right of appeal inheres in a dealer/assessee the very moment when he files a return under the Tamil Nadu General Sales Tax Act or when he is obliged to file a return within the dates prescribed under the Tamil Nadu General Sales Tax Rules, whichever is earlier. Therefore, it is held that in all cases where the date of the return or when the return became due under the Act and the Rules whichever is earlier was prior to Tamil Nadu Act 14 of 1999, it will not apply. It was further held that Act 14 of 1999 cannot apply to assessment proceedings relating to such returns filed beyond the dates prescribed in the returns for filing such returns, whichever is earlier.

24. A reading of all these decisions, in our considered view, rests upon the impairment of right to appeal provided under the Statute to the assessee. We may say, in the subsequent decision of the Supreme Court in HARDEODAS JAGANNATH's case (8 supra), a larger Bench of the Supreme Court while referring to the amendment brought to Section 30 of Assam Sales Tax Act, 1947 and its implication, held thus :

"It was contended that the amendment came into force with effect from April 1, 1958 and it cannot be given retrospective effect so as to apply to assessment periods ending on September, 30, 1956, March, 31, 1957, and September, 30, 1957. We are unable to accept this argument as correct because the assessment of these three periods were completed after the amending Act came into force i.e., after April 1, 1958.The appeals against the assessments were also filed after the amendment. It is therefore not correct to say that the amending Act has been given a retrospective effect and the Assistant Commissioner of Taxes was therefore right in asking the appellant to comply with the provisions of the amended section 30 of the Act before dealing with the appeals."

25. This observation of the Supreme Court, in our considered view leaves no room for any doubt about the question whether the amendment is prospective or retrospective in operation. Of course, the point in issue, in these writ petitions is not on the curtailment of ancillary powers to grant stay of collection of tax while entertaining and hearing appeals but purely on the question of condoning the delay in filing appeals. On the basis of the ratio laid down by the Supreme Court in this decision, we may say, it is not the date of filing the return or the due date for filing return but the date of passing an order by the competent authority which is to be taken before the appellate authority, in an appeal, which matters and that aspect has to be taken note of, while examining the prospective or retrospective effect of an amended provision of an act.

26. In VINOD GURUDAS RAIKAR's case (9 supra), the Supreme Court was considering the provisions of Sections 217(1) and 166(3) of the Motor Vehicles Act, 1988 relating to filing of claim petition and the limitation within which they are to be filed. At para-7, the Supreme Court held thus :

"It is true that the appellant earlier could file an application even more than six months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired. The answer is in the negative. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly enforceable as a right. So far the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature and has to be governed by the new Act - subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is whether the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it unpractical for him to avail of the remedy......."

27. It is further held at para-8 of the said judgment thus :

"The learned counsel strenuously contended that the present case must be considered as one where an accrued right has been affected, because the option to move an application for condonation of delay belatedly filed should be treated as a right. This cannot be accepted. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege."

28. Thus, from the pronouncement of the Supreme Court in the above decision, a distinction has to be drawn as to whether a right of appeal which is a substantial right has been impaired by the subsequent amendment.

29. Admittedly, in this case, as indicated above, the right of appeal under Sections 19 and 21 of the Act has not been disturbed by the impugned amendment. What is restricted is the unlimited and unfettered discretionary power which was available to the appellate authorities for condoning the delay of any period in preferring appeal. Thus, there is a vital difference between filing an appeal before the appropriate authority and a prayer to condone the delay in filing such an appeal. The first being a substantive right vested in the assessee/dealer and the second being a procedural aspect for preferring that appeal within a stipulated period. Thus, putting some embargo on the discretionary power of the authorities for condoning the delay in preferring appeals , cannot be equated with that of a right to appeal which is a substantive right.

30. Admittedly, the orders passed by these authorities which are subject matter of appeal are prior to the amendment brought to the First Proviso to sub-section (1) of Section 19 and sub-section (2) of Section 21 of the APGST Act. There is no curtailment in the right to prefer an appeal even after the amendment has come into effect. However, the effect of the amendment is only on the question of exercise of unfettered discretionary powers by the appellate authorities to condone delay of any period, on being satisfied, which is now is restricted to 30 and 60 days respectively. We are therefore, not inclined to accept the submissions made on behalf of the petitioners that a substantive right is taken away by virtue of the impugned amendment act no. 8 of 1997 which came into effect from 1-4-1997.

31. We may at this stage think it appropriate to indicate that challenge to a provision of any enactment made either by Parliament or State Legislature could be made only on two grounds, viz., i) lack of legislative competence; and ii) violation of fundamental rights or other constitutional provisions. The Hon'ble Supreme Court in McDOWELL's case (6 supra) while dealing with a case arising out of imposition of prohibition on the manufacture and sale of liquor within the State of Andhra Pradesh, held thus :

"A law made by the Parliament or the Legislature can be struck down by Courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. There is no third ground. If an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the Clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. An enactment cannot be struck down by applying the principle of proportionality when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. The two rules stated above for striking down of enactments are however confined to an Act made by the Legislature.

32. Thus, as laid down by the Hon'ble Supreme Court in the above decision, an Act made by the Legislature could be struck down only on two grounds viz., 1) lack of legislative competence and 2) violative of fundamental rights guaranteed under Part-III of the Constitution or on any other constitutional provisions. In this case, the petitioners have not placed any material, to hold that the Legislature lacked competence to bring about the impugned amendment or such amendment has affected their fundamental rights guaranteed under Part-III of the Constitution or any other constitutional provisions. Therefore, we reject the contentions advanced on behalf of the petitioners in this regard.

33. For the foregoing reasons, we find no merits in the contentions advanced on behalf of the petitioners. The writ petitions are accordingly dismissed. No costs.