1. Both these petitions are filed under Article 226 of the Constitution by the same petitioner. The prayer in Writ Petition No. 1091 of 1962 is for the issue of a writ of mandamus restraining the Sales Tax Appellate Tribunal, Hyderabad, the 1st respondent from insisting upon the proof of payment of tax in pursuance of its memo, Appeal Registration No. 814 of 1962 dated 24th October, 1962, and to entertain the appeal unaccompanied by the proof of payment of tax. The prayer in Writ Petition No. 1092 of 1962 is also for a writ of mandamus in respect of similar proceedings issued by the Sales Tax Appellate Tribunal dated 24th October, 1962. The facts in both the writ petitions are the same, except that Writ Petition No. 1091 of 1962 relates to the assessment year 1954-55, while Writ Petition No. 1092 of 1962 pertains to 1955-56.
2. The petitioner, who is the dealer in cotton yarn other than hand-spun yarn, contends that he was the second dealer in the State of Andhra Pradesh and, therefore, not liable to pay the tax.
3. For the year 1954-55 the Commercial Tax Officer, Chittoor, issued the notice G. I. No. 4123 of 1954-55 dated 14th March, 1957, and for the year 1955-56 he issued the notice G. I. No. 4123 of 1955-56 dated 14th March, 1957, calling upon the petitioner to show cause why he should not be assessed on the turnover mentioned in those notices treating him as the dealer in the State. The assessee submitted his objections, but the assessment order was passed for both the years on 25th March, 1957. Against those assessment orders, appeals were preferred to the Assistant Commissioner of Commercial Taxes, Anantapur, who by his order dated 9th April, 1962, confirmed the assessments made by the Commercial Tax Officer. Against the order of the Assistant Commissioner, the petitioner preferred appeals to the Sales Tax Appellate Tribunal, Hyderabad, which issued the two impugned notices calling upon the petitioner to pay the tax as a condition precedent to the appeals being numbered.
4. Sri Ranganathachari, the learned counsel for the petitioner submits that these notices issued by the Appellate Tribunal are illegal, and without jurisdiction. His argument is that the proceedings relate to the years 1954-55 and 1955-56 and they originated by reason of the notices of the Commercial Tax Officer dated 14th March, 1957. On that date, the Act in force was the Madras General Sales Tax Act, 1939, with its amendments. Section 12-A of this Act provides for an appeal to the Sales Tax Appellate Tribunal against the orders passed by the Commercial Tax Officer on appeal under Section 11, and by the Deputy Commissioner of Commercial Taxes, whether on appeal under Section 11 or suo motu under Section 12. Sub-section (2) of Section 12-A requires that the appeal should be filed within 60 days, unless the Tribunal is satisfied that there was sufficient cause for not preferring the appeal within that period, and that the appeal memo shall be accompanied by such fee not exceeding Rs. 100 as may be prescribed, and Sub-section (4) requires that the Appellate Tribunal should, after giving both parties reasonable opportunity of being heard, pass such orders as it thinks fit.
5. It is manifest from Section 12-A that it is not incumbent on an appellant to pay the tax levied as a condition precedent to the appeal being registered. The Andhra Pradesh General Sales Tax Act, 1957, which came into force on 15th June, 1957, altered the law in this regard and Section 21(6) of that Act is in the following terms :
No appeal shall be entertained under Sub-section (1) unless it is accompanied by satisfactory proof of the payment of the tax and the penalty, if any, as determined in any appeal under Section 19, or in revision under Section 20, or of such instalments thereof as have become payable.
6. The notices in question were issued by the Appellate Tribunal under Section 21(6).
7. The argument of Sri Ranganathachari is that the crucial date in this case being 14th March, 1957, both the appeals are governed by the law in force on that date, namely, the Madras General Sales Tax Act, as the right of appeal is a substantive right, and not a matter of mere procedure. That being so, the Tribunal has no jurisdiction to call upon the petitioner to pay the tax as a prerequisite for entertaining the appeal.
8. This very question was considered by the Supreme Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Ors.  4 S.T.C. 114. That was a case in which the Supreme Court had to consider the effect of a proviso to Section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947, as amended on 25th November, 1949, by the Central Provinces and Berar Sales Tax Act (57 of 1949), which is in pari materia with Section 21(6) of the Andhra Pradesh General Sales Tax Act, and required proof of payment of tax as a condition precedent to the appeal being entertained. Two questions arose for consideration in that case.
(1) What was the crucial date for determining the law applicable to the appeal ?
(2) Is the condition requiring payment of tax a matter of procedure which can be given retrospective operation ?
9. Adverting to these two questions. Justice Das who spoke for the Court held that for the purposes of the accrual of the right of appeal the crucial and relevant date is the date of initiation of the proceedings and not the decision itself.' As regards the second question, his Lordship held that a pre-existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment, and the fact that the preexisting right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right, and that there can be no question of the amended provision preventing the exercise of that right. It was, therefore, held that the new proviso was wholly inapplicable in such a situation, and the jurisdiction of the authority had to be exercised under the old law which so continued to exist. It was also observed that the requirement of payment of tax is an onerous condition which may, in a given case, prevent the exercise of the right of appeal, for the assessee may not be in a position to find the necessary money in time. It was held that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right, and that the right that the amended section gives is certainly less than the right which was available before. To quote in the language of the learned Judge :
A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellant's pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure.
10. Applying this decision to the facts of the case the crucial date is 15th March, 1957, when the law in force was the Madras General Sales Tax Act. As already stated, Section 12-A of that Act did not make it incumbent on an assessee to pay the tax before his appeal could be entertained. That onerous condition was imposed only by the Andhra Pradesh General Sales Tax Act, 1957. As per the decision of the Supreme Court, that Act has no application on the crucial date.
11. I, therefore, hold that the Sales Tax Appellate Tribunal, Hyderabad, acted beyond its jurisdiction in calling upon the petitioner (assessee) to pay the tax before his appeals could be entertained. The writ petitions are, therefore, allowed, and the writs will issue as prayed for. Since the contention on which the petitioner now succeeds is one which was not raised in the petition but raised only now, I do not think it just to grant him costs. I, therefore, make no order as to costs in both these writ petitions.