K.S Hegde, J.— These are appeals by certificate. The respondent has not put in his appearance. Civil Appeal No. 2277 of 1969 relates to the assessment of sales tax on the respondent for Assessment Year 1957-58 and Civil Appeal No. 2278 of 1969 relates to his assessment for Assessment Year 1958-59. Those assessments were made under the Madras General Sales Tax Act, 1939, read with the Rules framed thereunder. The 1939 Act was replaced by the Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959). The assessments in question were made after 1959 Act came into force. Before the High Court the case proceeded on the basis that in respect of both the years the assessments were reopened under Section 16 of the 1959 Act. Mr P. Ram Reddy appearing for the revenue contended that in regard to the assessment for the year 1958-59 there was no reopening at all. No such contention appears to have been taken before the High Court and hence it is not permissible for the appellant to take up that contention in this Court for the purpose of these appeals we shall proceed on the basis that the assessments in respect of both the years had been reopened.
2. The assessments were reopened by the assessing authority himself purporting to do so in exercise of his powers under Section 16 of the 1959 Act. The High Court came to the conclusion that the assessing authority could not have reopened the assessments as the assessments were made under the repealed Act. Under Rule 17 of the rules framed, if an assessment made by the assessing authority was taken up in appeal to the Appellate Authority and the Appellate Authority had either confirmed or modified or reversed the assessment order, the reopening of such an assessment could be made only by the Appellate Authority. Hence the assessing authority was not competent to reopen the assessments. This conclusion was challenged in this appeal.
3. If the provisions of the 1939 Rules governed the assessment proceedings, there can be no doubt that the assessing authority had no right to reopen the assessments as the assessments in question were the subject-matter of an appeal. In that event the only authority which could have reopened the assessment was the Appellate Authority. If, on the other hand, the assessments in question were either wholly or partly governed by the provisions of the 1959 Act then we have to decide whether the provisions of the 1959 Act empowered the assessing authority to reopen the assessments. The Madras High Court in Deputy Commissioner of Commercial Taxes, Madras Division v.R.V Ramiah Chetty and Co. (1968) 22 STC 217 took the view that in cases where the assessments were made under the 1939 Act and Rules, the provision relating to reopening is Rule 17. The correctness of that decision was challenged before us.
4. The decision in Ramiah Chetty case is a decision bearing on a State Act and Rules framed thereunder. Further that decision relates to provisions which had been repealed as long back as 1959. Therefore, ordinarily this Court will not be inclined to interfere with such a decision. Further we agree with the High Court that in view of the proviso to sub-section (1) of Section 61 of the Madras General Sales Tax Act, 1959, the Appellate Authority alone could have revised the assessment in question. That proviso reads as follows:
“Provided that such repeal shall not affect the previous operation of the said Act 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, licence or permit in the exercise of any power conferred by or under the said Act 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.”
5. The question for decision is whether the jurisdiction to reopen is a question of procedure or power. Mr Ram Ready contended that it relates only to procedure and on that basis sought to seek support from the decision of this Court in State of Madras v. Lateef Hamid and Co. (1971) 3 SCC 560, (1971) 28 STC 690 (SC) We are unable to accept this contention. In Hamid case this Court was dealing with an alleged infraction of a provision dealing with procedure. Herein we are dealing with a question of power. The question for decision is as to who had the concerned jurisdiction to reopen the assessments. Such a question cannot be considered as a question of procedure. Under the old Rules the assessee had a right to have his assessments reopened only by the Appellate Authority. This was undoubtedly a right conferred on the assessee. It is a valuable right. That being so, the same is protected by the proviso quoted above.
6. In the result, these appeals fail and they are dismissed. No costs.