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Nathulal Chhotelal Shellac, Factory Vs. the Deputy Commissioner of Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 339 of 1961
Judge
Reported inAIR1962MP287; 1962MPLJ653; [1962]13STC853(MP)
ActsMadhya Pradesh General Sales Tax Act, 1959 - Sections 52, 52(1) and 52(3), ; Central Provinces and Berar Sales Tax Act, 1947 - Sections 22(5)
AppellantNathulal Chhotelal Shellac, Factory
RespondentThe Deputy Commissioner of Sales Tax and anr.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateH.L. Khaskalam, Govt. Adv.
DispositionPetition allowed
Cases ReferredState of Bombay v. Supreme General Films Exchange Ltd.
Excerpt:
.....an intention so to do has been expressed clearly or by necessary implication. to disturb an exist 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 can not be presumed unless such intention be clearly manifested by express words or necessary intendment: 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. 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..........and action taken to regard to second appeals are given in the following table :period of assessmentdatedate of order infirst appealdate of second appealand action taken1.19-10-1932to6-11-195322-9-19561-4-196120-10-1961 returned2.7-11-1953 to 26-10-195429-12-19561-4-196120-10-1961 returned3.27-10-1954 to 14-11-195524- 4-195810-1-1959.... transmitted to the board of revenue4.15-11-1955 to 2-11-195631-8-196027-12-19604-10-1961 returned3. prior to the commencement of the madhya pradesh general sales tax act, 1959 (hereinafter called the act on 1 april 1959, the assessees 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 tiled on a court-fee stamp of rs......
Judgment:

Pandey, J.

1. 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 assess-taewt 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 to regard to second appeals are given in the following table :

Period of assessment

Date

Date of order infirst appeal

Date of second appealand action taken

1.

19-10-1932

to

6-11-1953

22-9-1956

1-4-1961

20-10-1961 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 assessees 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 tiled 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 assesses require the Board to refer to the High Court questions of law arising out ot that order. Under the scheme of the Act, which is in force, a second appeal, which can 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 assessee 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.

4. The short question for consideration, in this case is whether if 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. It 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 lyer faintly urges that until actual assessment there can be no 'lis' ands 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 assess-ee files his return, a 'lis' may not immediately arise, for under Section 11 (1) the authority may accept the return as correct and complete. But if 'the authority is not satisfied as to the correctness of the return and calls for 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 the decision itsett.' (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 each case was taken away by the provisions of the Act

5. 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 exist 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 can not 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).

6. 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 Saks 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 in 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 licence) 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-section (1), any second appeal, application for revision, review or reference to the High Court (hereinafter called the proceeding's), 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.'

7. In 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 cawfela. Even without that enactment, the position would not be different. We were particularly referred to Sub-section (2), which merely provide tkat stay 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'.

In the first place, Sub-section (2) does not deal, with second appeals at all. Secondly, it does not apply to all first appeal 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 firt 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 mot enact that such first appeals shall be deemed to be, and disposed of as, first appeals under the Act. What appears to have beeb done is that the forum of pending first appeals has been changed without taking away or impairing the vested remedial right.

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 Section116 of the Pepsu Judicature Ordinance 10 of Smt. 2005, there was a change over of proceedings from one set of Courts 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 no: withstanding the new set-up, and that they would he 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.'

8. 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.

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 assessment proceedings. Two of the thr.ee Judges, who beard the case, answered that question in the affirmatives 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 Section 12 (2) and obtains an order from him, even if it be one of declining to interfere, he cannot exercise his right of having his case referred to the High Court on questions of law. Thus the assessment proceedings, an appeal under Section 1.1 % a revision under Section 12 (2) and a reference under Section 13 are all inter-connected steps 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. Sub-biah Choudhury, 1957 SCR 488 : ((S) AIR 195T 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 could not be taken away or impaired save by earpress words or necessary implication.

9. 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 puting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only. It impairs or imperils substantive right and an enactment which does so is not retrospective unless. it says so expressly or by necessary intendment.

10. In the view We have taken, this petitionsucceeds and is allowed. The orders of the DeputyCommissioner of Sales Tax, Jabalpur, dated 14thJune, 1960, 9th September, 1960, 20th October,1961 and 6th November, 1961 in relation to thefour second appeals mentioned in paragraph 2 ofthis order are quashed and he is directed to receiveand dispose of those appeals in accordance withlaw. In the special circumstances of this case, wedirect the parties to bear their own costs. TheSecurity amount deposited by the petitioners shallbe refunded..


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