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Allied Exports and Imports, Gudur Nellore District Vs. State of Andhra Pradesh, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberTax Revn. Case No. 25 of 1966
Judge
Reported inAIR1971AP218; [1971]28STC175(AP)
ActsIncome Tax Act, 1922 - Sections 34; Andhara Pradesh General Sales Tax Act, 1957 - Sections 14(4A) and 41
AppellantAllied Exports and Imports, Gudur Nellore District
RespondentState of Andhra Pradesh, Hyderabad
Appellant AdvocateS. Dasaratha Rami Reddy, Adv.
Respondent AdvocateVenkatarami Reddy, Adv. and ;D.V. Sastry, Govt Pleader
Excerpt:
sales tax - escaped turnover - section 34 of income tax act, 1922 and sections 14 (4a) and 41 of andhra pradesh general sales tax act, 1957 - petitioner assessed to sales tax - subsequently assessing authority assessed the firm on additional turnover as escaped turnover - meantime limitation period for assessment on escaped turnover altered to six years with retrospective effect instead of original three years - assessment on escaped turnover done after three years although within six years - whether such assessment time barred - no person has vested right in procedure - where time for pleading is shortened or lengthened it is not open for parties to challenge such change - amendment made in procedural law does not in any manner affect vested right - amendment effective retrospectively -.....g.r. ekbote, j.1. the petitioner firm is a registered dealer and deals in mica. for the year 1957-57 the firm was assessed to sales tax on a turnover of rs 4.94.315-6. by an assessment order d/- 30-9-1958.2. 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 d/- 31-3-1963. 3. aggrieved by that order the petitioner firm preferred an appeal to the assistant commissioner. the appellate authority though that the escaped turnover is more than what has been found by the assessing authority . the appellate authority therefore by its order d/- 28-9-1964 remanded the case to the assessing authority with a direction to proceed on the lines suggested in the order.4. the firm further carried an.....
Judgment:

G.R. Ekbote, J.

1. The petitioner firm is a registered dealer and deals in mica. For the year 1957-57 the firm was assessed to sales tax on a turnover of Rs 4.94.315-6. by an assessment order D/- 30-9-1958.

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 D/- 31-3-1963.

3. Aggrieved by that order the petitioner firm preferred an appeal to the Assistant Commissioner. The appellate authority though that the escaped turnover is more than what has been found by the assessing authority . The appellate authority therefore by its order D/- 28-9-1964 remanded the case to the assessing authority with a direction to proceed on the lines suggested in the order.

4. The firm further carried an appeal to the Sales Tax Appellate Tribunal. The Tribunal by its order D/ 9-3-1966 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 afresh assessment in the light of the observations made in that order. It is against the said in that order. It is against the said order of the Appellate Tribunal that the Tax Revision Case has been filed in his Court.

5. The revision first came before our learned brother Oubl Reedi and Madhavareddy JJ. The learned Judge felt;

'The view taken by the Division Bench of this Court, in TRC No.45 of 1965 (AP) is in conflict with the view expressed by another Division Bench of this Court in S.L Ramanathan v. Commr. of Commercial Taxes A.P. 1969 23 STC 249 (A).'

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(4A) of the Andhra Pradesh General Sales Tax 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 31-357 before the repealing Act came into force on 15-6-1957 it was the Madras General Sales Tax, 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 there-assessment. The contention was that the petitioner had a right not to be assessed in respect of turnover that had escaped the 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 the argument it is necessary to state argument it is necessary to state that under Rule 17 of the Rules made under the repealed Act , it for any reasons 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 next succeeding that to which the tax relates, determine the turnover which has escaped assessment and assess the tax 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 15-6-1957. This repeal, however, however would not have put an end to Rule 17 if S. 14 (4) of the repealing act had not provided a period of four years for re-assessment 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 escaping 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 Amendment Act of 1961. Section 14(4) was amended with retrospective effect as per Section. 1 (2) of the said Act from 15-6-1957, Under the said amended section the re-assessment 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 the 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 XIV of 1963. According to this substituted sub-section 14 (4A) 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 Acts in so far as it is relevant, reads as under.

The Madras General Sales Tax Act, 19939 (Madras Act IX of 1939) are hereby repealed:

'Provided that such repeal shall not affect the previous operation of the said Acts of section 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, police, 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 to 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 proceedings made or preferred to any officer or authority under the said acts or section and pending at the 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 proceedings under this Act, if it has been in force on the date on which such application, appeal., revision or other proceedings 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 re-assessment in regard to the escaped turnover could have been made on or before 31-3-1960. But before this period had expired, the repealing Act came into force on 15-6-157, 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 15-6-1957 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 therefore arises for our consideration is whether the petitioner had acquired as is argued any right to be re-assessed only with three years under Rule 17 made under the repealed Act in other words it had acquired any right not to be re-assessed after the expiry of period prescribed in Rule 17.

15. It is necessary in order to determine this controversy to bear in mind the 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 to exact nature of the distinction between a substantive law and the law of procedure. Still the distinction is marked and well-known. 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 and relates not to the process of litigation. but to its purposes and subject matter. In 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 be 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 are remedies for the enforcement of a right and these remedies are equally substantive rights though remedial in nature. The law it must be understood, makes a clear distinction between rules of law which in any way those which a litigant has to comply with for availing himself of those remedial rights. The letter 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 regarded 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 the pending cases but also applies to causes of action which has 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 difficult in appreciating the axiom that there is a material differences 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 it may be quite reasonable to regulate and alter even if such alternation has been disadvantageous to one of the parties. It will be a mistake to mix up those 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 maters have to be understood as distinctly separate.

Thus a law which merely alters the procedure may with a perfect property 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 sues, and if an Act of Parliament alters that mode of procedure he has no other right than to proceed 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 or 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 gainsay such a change, the only right thus interfered with being that of delaying or defeating justice. a right little worthy of respect. See Maxwell-wee page 216. See also Craies on Statute Law page 400.

18. In the Full Bench decision in Ganga Sahai v. Kishen Sahai, (1884) ILR 6 All 262 the distinction between the substantive right and there lief on 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 fore-closure of a mortgage by conditional sale executed on 3-7-1877 when Regulation 17 of 1806 was in force, instituted after the Transfer of Property Act came into force which act repealed the said Regulation. Under Section 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 right or liability arising out of a legal relation, constituted before the 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 provisions 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 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. (1886) ILR 12 Cal 583 a similar question arose for consideration. It was observed at o., 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 are the same under the Transfer of Property Act as they were before. A different procedure for enforcing such rights and obtaining such relief his however been adopted. The procedure for enforcing a right is no portion of that right, nor does it alter or affect it.'

20. In Ramakrishna Chetty v. Subbaraya Iyer. ILR 38 Mad 101 : AIR 1916 Mad 607 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 latter Full Bench decision in Rajah of Pittapur v. Venkata Subba Row, ILR 39 Mad 645 : AIR 1916 Mad 912.

22. In Ramanathan Chettiar v. Kandappa Goundan : AIR1951Mad314 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. Babbu, : AIR1953All747 .

24. In Ramprasad v. Vijayakumar. : AIR1967SC278 it is laid down that 'The respondents had 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 of 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 abridgment 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 provisions which is in pari materia with Section 14 (4-A) of the Act with which we are concerned. In S.C. Prasher v. Vasant Sen : [1963]49ITR1(SC) 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 indicated under Section 34 as periods of limitation, the expiry of which grant prescriptive title to defaulting Tax-payers. It may be said that an assessment once made it final and conclusive except for the provisions of Sections 34 and 35 but it is quite a difference matter to say that a 'vested right' arises in the assesses. On the expiry of the period the assessment. 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 not it to prevent harassment of assesses 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 bee 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.'

Again at p. 1392 the learned Judge observed:

'Before dealing with this question we wish to say a few words but 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 case in which this genera principle has been firmly established. We do not refer to these cases because in our opinion it is some what inapt to describe 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. Theses periods are occasionally readjusted to cover some cases which would otherwise he left out and hence these amendments. An assessment can be said to become final and conclusive if no action can tough it buy 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 these periods of limitation which confer not only immunity but also give title by the passage of time'.

the other learned judges are of the same opinion in so far as this proposition of law is concerned, although some of them differ in regard to the question as to whether greater retrospectively. could be given to the relevant provisions which fell for their consideration or not. We are not concerned with that aspect in this case.

26. In S.S. Gadgil v. Lal & Co., : [1964]53ITR231(SC) 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 of fetter upon the power of the Income-tax Officer to bring to tax escaped income. Their Lordships approved of the decision in Ahmedabad ., v. S.G. Metha, Income Tax Officer, : [1963]48ITR154(SC) and quoted a passage from page 171 (of ITR) = (at p. 1446 of AIR) 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 tax payer is brought within the jurisdiction o f the said machinery by reason of new power.'

This High Court has taken a similar view in the following cases.

27. In Munga Peraiah v. State of Andhra Pradesh, Chandrareddy, C.J. and Jaganmohan Reddy, J.. (as he then was) were concerned with a similar argument. The contention was that S. 14(4) of the repealing Act has no application as the assessment in question was sought to be brought within the scope of R. 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 (1) has 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 re-assess 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.

28. To the same effect is the judgment of Satyanarayanaraju and Venkatesam, JJ. in Ramakrishniah v. State of Andhra Pradesh, .

29. In K. Kanniah v. Dy. Commercial Tax Officer decided by Chandra Reddy, C.J. and Gopalrao 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 acquired, accrued or incurred there under appearing in the proviso to S. 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 to tax. But the declaration of liability implies the liability to pay. The specific purpose of the proviso to S. 41 is to keep alive rights acquired and the liabilities incurred under the repealed Act.

30 Jaganmohan Reddy, C. J., and Kumarayya J. (as he then was) had occasion in Khadar Mohiuddin 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 notwitstanding 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 determines the liability of the assessee. Thirdly it was held that as in these case 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 right in making additional assessments within the enlarged period of six years next succeeding the assessment year prescribed by Section 14 (4-A).

31. The last case which took the same view is Raghavareddy v. State of Andhra Pradesh, 1970 1 A WR 393. Gopal Rao Ekbote and Parthasarathi, JJ. held that there was a fetter on the power of 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 is that the power of 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 provide for four years for the assessment, the new provision would apply. The bench for years for the reassessment, the new provisions would apply. the bench also considered Section 41 of the Act, and held that no one has a bested right in the period of limitation or call it a fetter placed on the exercise of jurisdiction.

32. What follows from the above said discussion is that since the assessment year was 1956-57 ending by 13-3-1957 under Rule 17 made under the repealed Act with then was prevalent the assessing authority could have 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 15-6-1957, according to Section 14(4) of which four years period for reopening the assessment was substituted. The said sub-section was substituted by Amending Act of 1962 which was given retrospective effect from 15-6-1967 when the principal Act had come into force. Section 14 (4-A) provided six years period for a re-assessment 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 time since the enactment of the principal Act as the Legislature has given a clear retrospective operation to the amended Section 14 as form the date on which the principal Act came into operation. Consequently the correctness of the notice of reassessment issued on 24-2-1961 and the order of reassessment dt. 31-3-63 will, have to be adjudged in the light of the amended Section 14 (4-A) of the Art 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 this assessing authority.. We are therefore satisfied that to they present case the new provisions of Section 14 (4-A) was rightly applied and it was correctly held by the Sales Tax authorities that the re-assessment order was not vitiated because of lack of jurisdiction on the part of the assessing authority.

33. 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 he assessing authority to reassess by Rule 17 made under the repealed Act to the effect that the reassessment must be made within three years of the assessment year and not beyond. 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 jurisdiction or power of the assessing authority to reassess. But that hardly makes and 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 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 creates any sort of bested 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 form Lalitabai v. Dominion of India, AIR 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 rights should be determined by the old procedure. But it is clear that the proviso to Art. 225 only deals with jurisdiction and not with any rights. That is a matter of procedure and as no party has a bested right to a particular forum, Art 225 applied to a suit even though the constitution had not come into force when the suit was instituted.'

34. It is to be noted that Art, 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 trial of a suit, it was held as above.

35. It was then contended that S. 14 (4-A) is a part of the repealing Act. Amending Act which it is only an prescribed for reassessment before the original period fixed has expired 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 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.

36. The terminology of repels and amendments, it is true, 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 provisions 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 legislature labels the Act accomplishing this result as a repeal. It is however, recongnised that any attempt to make distinction between repeal and amendments is futile. Any such distinction would be arbitrary it is well recognized 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 which we are concerned. where the old law is repealed and the new one is enactment 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 law which merely profess to amend. If it is extensive, it repeals the law and re-enacts it. That this is so seen from N.S. Dal. Mill v. Firm Sheo Prasad. : AIR1958All404 . We do not therefore consider that merely because Section 14(4-A) appears in a repealing Act it alters position in regard to a question of fetter or limitation on the jurisdiction as discussed above.

37. 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, which would have the effect of affection the petitioner's said vested right. In support of this contention, strong reliance was placed on an observation appearing in Sales Tax Officer v. Hanuman Prasad, : [1967]1SCR831 and also on the following decisions of this court as well as of other High Courts: Swastik Oil Mils Ltd., v. H.B. Munshi. : [1968]2SCR492 ; Kishanlal Oil Mils v. State of Andhra Pradesh, (1970) 24 STC 304 (AP). Suryaprakasarao v. State, ILR (1970) A P 793; Gian Chand Mehta v. Commr. of Sales Tax, : AIR1968MP145 ; Ratanala Hukumchand v. Addl. Commr. of Sales Tax,. ; Dy. Commr, of Commercial Taxes v. Ramiah Chetty and Co. (1968) 22 STC 217 (Mad) and Arya Vaidya Pharmacy Ltd. v. State of Kerala (1918) 21 STC 357 (Ker).

38. 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.

39. The proviso can conveniently be divided into three parts The first part declares that such repeal shall not affect (a) the previous operation o the said Acts: (b) any right, title, obligation or liability already acquired, accrued or incurred thereunder. 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 hall 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 on force on the date on which such thing was done or action was taken and 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.'

40. Sub-section (2) lays down that notwithstanding anything contained in sub-section (1) any application, appeal, revision or other proceedings 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 has been in force on the date on which such application etc., was made or preferred.

41. 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 under the repealed Act. Such actions taken or things done are validated by treating them as 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 released Act and directs that they may be recovered as if they had accured under the repealing Act. Sub-section (2) fourthly directs that all pending cases shall be transferred to an 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 no force when the pending action were instituted.

42. 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 included the restriction put on the powers of the assessing authority to reopen the assessment is not a portion of the accrued or acquired right.

43. 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 person 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 effect a vested right but it remains enforceable without regard to the repeal. In order to become vested the right must be a contractual right property rights, 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 legislature interference. Since the vested first 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.

44. Craies on Statute Law at page 398 quotes 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.'

45. It will have thus be plain that a substantive right which originates in contract property or a statute becomes vestes when it is complete and not inchoate. It is thus a right which is considered as property and it 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 restriction or the provisions relation 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 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.

46. 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 aright 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 tax by adopting the prescribed procedure may determine the quantum of liability. Nevertheless the liability is accrued or the right is accrued to tax on the completion of a taxable transaction. it is 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 taking statute. The procedure thus prescribed and the time limit placed on the substantive right created by the statute. That this conclusion is right is seen from the various decisions which we have already considered.

47. 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 it is 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 (sic). We have already held that the procedure prescribed to enforce a substantive right is not a part of substantive right. What remains to be considered, therefore is what the meaning of the term 'subject thereto' is.

48. This very phrase occurring in the repealed Act, fell for consideration of the Supreme Court in Balakirshna and Sons v. State of Madras, AIR 196 SC 1152. It is observed:

'On a proper interpretation of the section it only means that the examination under the license is conditional upon the observance of the conditional upon the and upon the restrictions which are imposed by and under the Act whether in the rules or in the licence itself; i.e. a licence and not that he is entitled to exemption whether the conditions upon which the licence is given are fulfilled or not. The use of the words 'subject to' has reference to effectuating the intention in our opinion. is 'conditional upon'.

The same term was considered by a Division Bench of the Bombay High Court in Simon Reguben v. Haji Shaikh Mohd. Shustary. AIR 1922 Bom 404. 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.'

49. 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 provides 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 commencement of the repealing Act the question of what procedure thereafter should be adopted to enforce such subsisting 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 provision, cannot be enforced . It merely preserves vested right or liability which is yet to be enforced.

If the interpretation sough 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 proviso validates all actions taken or things done dates 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 from of repeal and saving clause.

Ordinarily when an Act is repealed, without anything more, the provisions of Section 8 of the Andhra Pradesh General Section 8 of the Andhra Pradesh General Clauses Act would apply and in such accuse 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 action taken or things done but auithorises 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 shall 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 thing of the repealed Act as if it was under the new Act and sets the a machinery of the repealing Act in the place of the repealed Act to complete the proceedings.

50. 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 is so can be from State of Bombay v.Panduranga, : 1953CriLJ1049 and L.T. Commr. v. Taja Singh : [1959]35ITR408(SC) .

51. We have therefore no hesitation in rejecting the contention of petitioner, Our conclusion in regard to the interpretation of Sec. 41 of the repealing Act is well supported by a decision of the Supreme Court in Indira Sohanlal v. Custodian of Evacuee Property, 1959 SCJ 171 : AIR 1959 SC 77.

52. In that case a somewhat similar provision came up for consideration of the Supreme Court, Section 40 of the East Punjab Act (XIV of 1947) was replaced by Central Ordinance No. XII of 1949. Section 40 therefore which repealed and 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 things was done, action taken penalty incurred or proceeding commence.' The said ordinance in turn was repealed by Central Ordinance 27 of 199949. 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, the repealing provision thereof, was as follows:

'58. (1) The Administration of Evacuee Property Ordinance 1994 (XXVII of 1949) us hereby repealed.

(2) xxx xxx

(3) The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) ........... shall not affect the previous operation thereto. anything done or any action taken in the exercise of any power conferred by order that Ordinance shall be deemed to have been done or taken in the exercise of the power conferred by or under this Act, as if this Act, were in force on the day on which such things was done or action was taken.'

It was observed that his kind of provisions in a repealing Act appeared rather unusual. It was held;

'Therefore where, as in this case the repealing section which purports to indicate the effect with purports to indicate the effect if 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 provisions 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 his case.'

53. 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 re-opening of the assessment was well within the prescribed limit of time and within the power of the assessing authority.

54. Let us then examine the cases relied upon by the learned advocate for the petitioner.

55. Strong reliance was placed on : [1967]1SCR831 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 March 10, 1959, Subsequently on 23-5-1959 the respondent was assessed to tax under the repealed Act. on 1-4-59 Madhya Pradesh General Sales Tax Act (2 of 1959) came into force. On October , 23, 1962 the Sales Tax Officer issued notice under Section 19(1) of the new Act for reassessment. The respondent 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.

56. 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 transactions chargeable to tax 'under this Act' has escaped assessment ,he may within five years from the expiry of such years re-assess the tax payable.

57. The proviso to the sanction is more emphatic when it says that in the cases 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,'

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

59. It is in these circumstances stated it was held that although the assessment made on 23-5-1959 shortly after the new Act came into force, since the assessment was made under the repealed Act the proviso to Sec. 1991)of the new Act was applicable to the case of the respondent. As a result of that proviso the period of re-assessment 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 23-10-1962 was found to be beyond the period of limitation.

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

61. 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 the right of the respondent and on this ground also, the sales Tax Officer was not competent to issue the notice for reassessment after that period of limitation had expired.'

62. The contention was that the proviso to Section 52 of the Madhya Pradesh Act is in pari material 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.

63. If the above said observation is read our of context it is perhaps likely to give the impression that their assessment 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.

64. 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 of liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sakes effected during the time when the Act was in force. The repealed Act laid down what turnover was tax able 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 dealer Those rights and liabilities were thus preserved by Section 52 of the new Act.

65. 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 K Lordships when it is stated what turnover was taxable. how it was to be computed and at what rate the tax had to be charged. They did not include any right in procedural law prescribed for giving effect to such a right.

66. This should be enough to dispel any doubt. It is clear that their Lordships never consider the procedure 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 raising 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 provisions of a law could not leave any one in doubt .

67. 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(11) of the repealed Act prescribing three year's time for re-assessment in case of assessment made under the old Act. The observation is obviously made in view of that facts 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.

68. 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 provisions 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 make the altered period applicable to there-assessment made under the old was well as the new Act after it came into force. Section 52 of the Madhya Pradesh Act. Section 52 does not seem to have a parallel provisions as in sub-section (2) of Sec, 41 it has in fact no parallel provisions to the third part of the proviso to Section 41. Merely because the proviso to Section 32 is somewhat parallel to the first and second parts of the proviso to section 41, it would be in correct to apply the interpretation placed on Sec. 52 to the interpretation of Section 41. The scheme for 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(4A) and the widely worded Section 41 of the repealing Act. While the intention of the Madhya Pradesh Legislature in enacting Section 52 red 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 new Act. In our case all the pending case have been taken over the new Act. The recovery of tax due has to be made under the repealing Act. The substantive rights and liabilities are enforced according to the repealing Act. We are therefore satisfied that the two situations materially differed 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 23-10-1962 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 other 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 received such a lost right to be enforced under the new 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 rights 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.

69. We are therefore clear in our mind that the 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 what so ever 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.

70. The second cases relied on is 21 STC 382 ; AIR 1968 SC 943. 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 1-4-1948 and 31-3-1950 Rejecting certain claims of the assessee, the assessment order was made on 2-1-1954. The appellate authority however by its order dt. 29-10-56 allowed the claims of the assessee in part and reduced the tax. The assessee filed the revision which was pending.

71. During the pendency of the revision, a notice of reassessment was issued on 7-1-1963. 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 was 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 7 of the Bombay General Clauses Act which provision is similar to section 3 of the Andhra Pradesh General clauses Act. Clauses (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.

72. 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. On the other hand it expresses a different intention and evolves its own scheme there by making the application of Section 8 impossible.

73. The next case to be considered in (1988) 21 STC 357 (Ker) a decision of the Kerala High Court. In that case on 1-4-1963 the new Act repealing the old one came into force. Notice of reassessment was issued on 8-10-1963. 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 law as if the repealing Act had not been passed. The contention that Section 61 of the repealing Act expressed a different intention was repelled . The provisions extracted in the judgment would indicate that the repealing and saving section is parallel only to be first and second parts of the proviso to Section 41 of the repealing Act. It has 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 therefore is not of must 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 conferred .

74. The case reported in : AIR1968MP145 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 than the law with which we are concerned. The conclusion in that case was drawn relying upon the decision of the Supreme Court in : [1967]1SCR831 . We have already considered that decisions in detail and do not therefore feel the necessity of commenting any further on the said decision of the Madhya Pradesh High Court.

75. The other decisions in that volume is of the Madras High Court reported in(1968) 22 STC 217 (Mad). It is true that in that case the proviso to Section 61 of the 19599 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 necessary to consider whether the facts of that case and the law with which their Lordships were concerned really fell within the ratio of : [1967]1SCR831 . The Madras High Court seems to have though that the provisions of the Madhya Pradesh Act were more or less like the proviso to section 61. They relied on the Supreme Court decision in : [1967]1SCR831 (supra) . We have already considered that decision. The Madras decision also turned upon the question whether the Asst. 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 X of 1963 by then had come 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 had not been passed. We do not therefore think that there is any relevance between that case and the one before us.

76. In a Bench of this court was concerned with a case in which Section 15 of the Hyderabad General Sales Tax Acts fell for consideration. The facts were that the assessee submitted his return for the year ending 31-3-1957 under the Hyderabad Act . On 15-6-1957 the Andhra Pradesh General Sales Tax Act came into force repealing the Hyderabad Act, On 14-3-1958 notice was issued and on 17-3-1958 the assessment order was made applying the rates under the Hyderabad Act. On 10-9-1963 the Commissioner of Commercial Taxes proposed to revise the assessment on certain grounds. The assessment 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 benefit of the provisions of the repealed Act which are advantageous to him and at the same time disown down the liability of being reassessed 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, successfully set up the repealing Act , to evade his liability, which is saved. It was argued that it was not doubted 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.

77. 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 had not prescribed any limitation for the exercise of revisional powers, a period of limitation for the first time had been fixed by the new Act and persuaded the court to consider that question. That is why this aspect was not considered or decide. In these circumstances it cannot be said that the said decisions decides any thing which is in consistent with what we have said in this judgment.

78. Similar is the case with regard to another decision of this court reported in (1970) 24 STC 304 (AP). In that case the question of limitation was expressly given up the dealer before the Sales Tax Appellate Tribunal. It was therefore held that it cannot be agitated in revision before the High Court.

79. In that case the assessment years were 1943-54 and 1954-55. The returns were filed in 1954. The assessments however were completed in 1959 after the Hyderabad Act was repealed. It was in these circumstances following the earlier decision of this court reported in 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 the substantive right . The distinction between the two was not canvassed before the Bench. The said decision is solvent in this respect and it cannot therefore be urged that the said decision decides anything contrary to that 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 a in substantive right.

80. The decision in ILR (170) AP 783, does not help the petitioner. In fact to an extent it goes quite contrary to the petitioner's submission when it held that though inrespect 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 the 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. 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 assess cannot be subject to any penal consequences byway of levy of interest of penalty if there is 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 contrary to what we have said in our judgment.

81. What must follow from the above and discussion is that since the period prescribed for the exercise of the power to re-assess under Rule 17 of the Rules 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 i.e. to say Section 14 (4-A) that would apply to the present case. Section 41 preserves the subsisting rights and liabilities arising out of the repealed Act. but prescribed procedure and limitation for their enforcement under the new Act. From that point of view also, it is the period prescribed under Secion 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.

82. The tax revision case in dismissed with costs. Advocate's fee Rs. 250/-.

83. Revision dismissed.


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