B.J. Divan, C.J.
1. The same question has been referred to us in both these matters and the question is-
Whether the provision of a statute by which a right of appeal is conferred on a higher authority subject to the condition that the appeal shall not lie unless the assessee first pays the tax demanded by the authority of the first instance is violative of Article 14 of the constitution on the ground that it discriminates between those who pay the tax demanded and those who do not.
At the time when these two matters were referred to the mil bench, the position was not clarified so far as the Supreme Court is concerned and so far as this High Court was concerned, the matter rested with the decision of this High Court in Anant Mills v. State of Gujarat : (1973)14GLR826 . The Division Bench before which Special Civil Application No. 1106 of 1970 came up for hearing and final disposal, by its order dated July 30 1973 referred the matter to a larger bench because it was unable to agree with the conclusion of the Division Bench that had decided An ant Mills v. State of Gujarat : (1973)14GLR826 and hence this question was referred to the Larger Bench. In one of these Special Civil Applications, the matter arises under the provisions of the Bombay Sales Tax Act, 1959, and in the other the question arises under the provisions of the Gujarat Sales Tax Act, 1969, but the question is the same in both the matters.
2. We now find that the Supreme Court in Anant Mills v. State of Gujarat : 3SCR220 has reversed the decision of the Gujarat High Court on appeal and has now been held that such a provision is not ultra vires or violative of Article 14 of the Constitution. Khanna J. Delivering the judgment of the Supreme Court has observed at page 1249-
The bar created by Section 406(2)(e) to the entertainment of the appeal by person who has not deposited the amount of tax due from him and who is not able to show to the appellate Judge that the deposit of the amount would cause him undue hardship arises out of his own omission and default. The above provision, in our opinion, has not the effect of making invidious distinction or creating two classes with the object of meting out differential treatment to them, it only spells out the consequences flowing from the omission and default of a person who despite the fact that the deposit of the amount found due from him would cause him no hardship, declines of his own volition to deposit that amount. The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal v shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute book in Section 30 of the Indian Income Tax Act, 1922....
Any requirement for the discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern no contravention of Article 14 in it. A disability or disadvantage arising out of a party's own default or omission cannot be taken to be tantamount to the creation of two classes offensive to Article 14 of the constitution, especially when that disability or disadvantage operates upon all persons when make the default or omission.
3. In view of this decision of the Supreme Court it is now clear that the view taken by the Gujarat High Court in the same matter against which the appeal was taken to Supreme Court no longer survives and hence the question referred to us must be answered in the following manner-
The provisions of the relevant Sales Tax Act by which a condition is imposed upon the appellant that he should deposit the amount of the tax assessed before the appeal can be entertained is not violative of Article 14 of the constitution and is not ultra vires.
4. The matter will now go back before the Division Bench for disposal according to law. There will be no order as to costs before the Full Bench.