Nathulal Chhotelal Shellac v. Deputy Commissioner Of Sales Tax

Pandey, J.:— This petition under Articles 226 and 227 of the Constitution is directed against certain orders passed and action taken by the Deputy Commissioner of Sales Tax, Jabalpur, whereby he declined to entertain second appeals against orders of assessment of sales tax on the ground that, under the Madhya Pradesh General Sales Tax Act, 1959 (2 of 1959), the Board of Revenue, Madhya Pradesh, had jurisdiction to entertain, such appeals.

2. For brevity, the details of the various assessment orders, first appeals, second appeals and action taken in regard to second appeals are given in the following table:

Period of assessment Date Date of order in first appeal Date of second appeal and action taken 1. 19-10-1932 to 6-11-1953 22-9-1956 1-4-1961 20-10-1981 returned 2. 7-11-1953 to 26-10-1954 29-12-1956 1-4-1961 20-10-1961 returned 3. 27-10-1954 to 14-11-1955 24-4-1958 10-1-1959 …….. Transmitted to the Board of Revenue 4. 15-11-1955 to 2-11-1956 31-8-1960 27-12-1960 4-10-1961 returned

3. Prior to the commencement of the Madhya Pradesh General Sales Tax Act, 1959 hereinafter called the Act on 1 April 1959, the assesses had, under the Central Provinces and Berar Sales Tax Act, 1947, a right to file two successive appeals against any original Order of assessment of sales tax. Second appeals, which could be filed on a court fee stamp of Rs. 5/- lay to the Deputy Commissioner of Sales Tax. Against an Order passed in second appeal, a revision lay to the Board of Revenue. Only after an order was passed in revision could an assessee require the Board to refer to the High Court questions of law arising out of that order. Under the scheme of the Act, which is in force, a second appeal, which came be filed on a court-fee stamp of Rs. 25/-, lies to the Board. The further remedy of revision against an order passed in second appeal is not provided and, if the assesee is aggrieved, he may require the Board to refer to the High Court questions of law arising out of the order passed in second appeal. The short question for consideration in this case is whether the remedial rights available under the Central Provinces and Berar Sales Tax Act, 1947, in cases arising under that Act were abrogated by the provisions of the Act tax will be seen that the petitioners filed their returns in the four cases specified in paragraph 2 long prior to the commencement of the Act on 1 April 1959 and, so also, notices were issued to the petitioners before that date. In Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, 1953 SCR 987 : (AIR 1953 SC 221), S.R Das, J. observed:

“Finally, Sri Ganapathy Iyer faintly urges that until actual assessment there can be no ‘lis’ and) therefore, no right of appeal can accrue before that event. There are two answers to this plea. Whenever there is a proposition by one party and an opposition to that proposition by another a ‘lis’ arises. It may be conceded, though not deciding it, that when the assessee files his return, a ‘lis’ may not immediately arise, for under section 11(i) the authority may accept the return as correct and complete. But if the authority is not satisfied to the correctness of the return and calls to evidence, surely a controversy arises involving a proposition by the assessee and an opposition by the State. The circumstance that the authority who raises the dispute is himself the judge can make no difference, for the authority raises the dispute in the interest of the State and in so acting only represents the State. It will appear from the dates given above that in this case the ‘lis’ in the sense explained above arose before the date of amendment of the section. Further, even it the ‘lis’ is to be taken as arising only on the date of assessment there was a possibility of such a ‘Lis’ arising as soon as proceedings started with the filing of the return, or, at any rate, when the authority called for evidence and started the hearing and the right of appeal must be taken to have been in existence even at those dates. For the purposes of the accrual of the right of appeal the critical and relevant date is the date of initiation of the proceedings and not ‘he decision itself.” (Pages 999-1000 of SCR: (p. 225 of AIR)).

Therefore, in all these cases, ‘lis’ had arisen before the Act came into force. The precise question which we have to consider is whether the right to the remedy available to the petitioners under the repealed Act at the time when the ‘lis’ arose in each case was taken away by the provisions of the Act.

4. The general rule is that statutes are Presumably prospective in operation unless the contrary is very plainly and unequivocally expressed or necessarily implied. This is based on the principles that a retrospective Operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matters of procedure, unless an intention so to do has been expressed clearly or by necessary implication. This rule regarding vested rights is not confined to substantive rights but extends equally to remedial rights, their nature and content. An appeal is not a mere matter of procedure. To disturb an existing right of appeal is not a mere alteration in procedure and an intention to interfere with, or to impair or imperil, an existing right of appeal cannot be presumed unless such intention be clearly manifested by express words or necessary intendment: Janardhan Reddy v. State, 1950 SCR 940 : (AIR 1951 SC 124), Ganpat Rai Hira Lal v. Aggarwal Chamber of Commerce Ltd., 1953 SCR 752 : (AIR 1952 SC 409) and 1953 SCR 987 : (AIR 1953 SC 221) (supra).

5. It is, however, urged that section 52 of the Act has expressly abrogated the remedy available under the repealed Act. The section is in these terms:

“(1) The Central Provinces and Berar Sales Tax Act, 1947, the Madhya Bharat Sales Tax Act, Samvat 2007, the Central Provinces and Berar Sales Tax Act, 1947, as extended to Vindhya Pradesh and Bhopal regions and as in force in those regions immediately before the commencement of this Act, and the Rajasthan Sales Tax Act, 1954, as an force in Sironj region, are hereby repealed:

Provided that such repeal shall not affect the previous operation of the said Acts or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate or Emee) in the exercise of any power conferred by or under the said Acts shall, in so far as it is not inconsistent with the provisions of this Act, 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 first appeal preferred to any officer under any of the said Acts and pending at the commencement of this Act shall, after such commencement, be transferred to and disposed of by the officer, who would have had jurisdiction to entertain such appeal under this Act if it had been in force on the date on which such appeal was preferred.

(3) Notwithstanding the repeal of the Acts specified in sub-sec. (1), any second appeal, application for revision, review or reference to the High Court (hereinafter called the proceedings) preferred or made under any of the said Acts and pending at the commencement of this Act, shall continue to be governed by the provisions of the Act and the rules under which such proceedings were preferred and made and such proceedings shall be heard and decided in accordance with the provisions of the said Act and the rules, as in force on the date immediately before the commencement of this Act as if the said Act and the rules had not been repealed; and the right of reference to High Court, if any, arising out of any such proceedings shall not be affected by the said repeal and such reference shall be made and disposed of in accordance with the provisions of the said Act and rules.”

6. Im view of the principle referred to earlier, no express provision is necessary for saving a vested right of appeal. The proviso to sub-section (1) which saves all rights acquired, including a right of appeal, emphasises that there was no intention of abrogating or impairing such a right. Sub-section (3), which provides that any second appeal pending at the commencement of the Act shall continue to be governed by the provisions of the repealed Act, has been enacted ex abundanti cauiela. Even without that enactment, the position would not be different. We were particularly referred to sub-sec. (2), which merely provides that any first appeal pending on the date of commencement of the Act shall be transferred and disposed of by the officer “who would have jurisdiction to entertain such appeal under this Act if it had been in force on the date on which such appeal was preferred”.

7. In the first place, sub-section (2) does not deal with second appeals at all. Secondly, it does not apply to all first appeals including those filed after the commencement of the Act, but operates only on the first appeals pending on such commencement. Thirdly, it refers not to the time when the ‘lis’ arose but to the date of presentation of the first appeal and provides merely this that all pending first appeals shall be transferred to the officers who would have entertained them if the Act were in force on the dates of Presentation. The sub-section does not enact that such first appeals shall be deemed to be, and disposed of as, first appeals under the Act. What appears to have been done is that the forum of pending first appeals has been changed without taking away or impairing the vested remedial right.

8. In our view, the principle which applies to such a case, is the one laid down by the Supreme Court in 1953 SCR 752 : (AIR 1952 SC 409) (supra). In that case, by sec. 116 of the Pepsu Judicature Ordinance 10 of Smt. 2005, there was a change over of proceedings from one set of Court to another and the question arose whether a certificate necessary for a further appeal in the new set up applied to cases governed by the pre-existing law. The Supreme Court observed at pp. 757-8 (of SCR): (at p. 410 of AIR):

“The section obviously means that all rights which arose or are likely to arise in the future shall remain intact notwithstanding the new set-up, and that they would be dealt with by the Union Courts in place of the Courts of the Covenanting States. There is nothing in the section to justify the view that any taking away of a vested right of appeal retrospectively was intended. The decision in Colonial Sugar Refining Co v. Irving, 1905 AC 369, clearly applies to the facts, and the Order of the High Court that the appeals are not competent is, in our opinion, erroneous.”

9. It is also implicit in the view canvassed for our acceptance that there can be no revision against an order passed by the Board in second appeal. Under the pre-existing law, the assessees could not demand a reference to the High Court without first moving the Board in revision. It is not without significance that, under section 22(5) of the repealed Act, the Board was not merely empowered to revise am Order passed in Second appeal on an application made to it for the purpose. Before rejecting the application, the Board was bound to ‘consider it’ and to “record reasons for such rejection”. Also, under section 23 of the repealed Act only questions of law arising out of the order passed in revision could be referred to the High Court in this situation, it cannot be said that the Board had a discretion in the matter and it could pass any order it thought fit.

10. Apart from this, as shown, the two appeals, revision and reference, taken together, constituted one integrated remedy leading ultimately to the last stage, namely, a reference to the High Court. So, in a like case arising under the Madhya Bharat Sales Tax Act (30 of 1950), which contained similar provisions, the question was whether the right given to a dealer of moving the Commissioner to exercise his revisional power in respect of an order made against him was a vested right accruing to him on the date of initiation of the ??? proceedings. Two of the three judges, who ??? the case, answered that question in the ??? One of us (Dixit, J., as he then was), who heard the case on a difference between Nevaskar, J. and Samvatsar, J. stated:

It is thus plain that unless the dealer moves the Commissioner under S. 12(2) and obtains an order from him, even if it be one of declining to interfere, he cannot exercise his right of baying his case referred to the High Court on questions of law. Thus the assessment proceedings, an appeal under S. 1.1 Or a revision under S. 12(2) and a reference under S. 13 are all inter-connected step in one legal proceeding.” (Nazar Ali Mills Ltd. v. Commissioner of Sales Tax, AIR 1958 Madh Pra 282).

The case just mentioned is an example of application of one of the five principles laid down by the Supreme Court in Garikapatti Veeraya v. N. Subbiah Choudhury, 1957 SCR 488: ((S) AIR 1957 SC 540). Their Lordships stated;

“That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.”

In view of this position, we are of opinion that a right of revision under section 22(5) of the repealed Act was in the nature of a vested right which I could not be taken away or impaired save by ??? words or necessary implication.

11. There is yet another aspect of the matter. Unlike, the position under the repealed Act a higher court-fee is required to be paid for second appeals as provided by the Rules made under the new Act. As pointed out by the Supreme Court in State of Bombay v. Supreme General films Exchange Ltd., (1960) 3 SCR 640 : (AIR 1960 SC 980), such impairment of right of appeal by putting a new restriction thereon or imposing a more-onerous condition is not a matter of procedure only. It impairs or imperils substantive right and as enactment which does so is not retrospective unless it says so expressly or by necessary intendment.

12. In the view we have taken, this petition succeeds and is allowed. The orders of the Deputy Commissioner of Sales Tax, Jabalpur, dated 14th June, 1960, 9th September, 1960, 20th October, 1961 and 6th November, 1961 in relation to the four second appeals mentioned in paragraph 2 of this order are quashed and he is directed to receive and dispose of those appeals in accordance with law. In the special circumstances of this case, we direct the parties to bear their own costs.

13. The security amount deposited by the petitioner shall be refunded.

DF/V.B.B

14. Petitions allowed.