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SUPREME COURT OF INDIA
25th February 1953
MAHAJAN AND S.R. DAS, JJ.
Messrs. Hoosein Kasam Dada (India) Ltd. Appellant
Versus
The State of M.P. and others - Respondents.
Appeal No. 182 of 1952.
Advocates appeared
Shri N. C. Chatterjee, Senior Advocate, (Shri R. M. Hajarnavis, Advocate, with him), instructed by Shri Rajinder Narain, Agent - for Appellant; Shri R. Ganapnthy Iyer, Advocate, instructed by Shri G. H. Rajadhyaksha, Agent - for Respondent No. 1 (The State of Madhya Pradesh).
Appeal-Right to appeal-Whether v~sted right-When right vests.
Being aggrieved by the order of assessment the assessee on the 10th May, 1950, preferred an appeal to the Sales Tax Commissioner, Madhya Pradesh, under S. 22(1) of the Central Provinces and Berar Sales Tax Act, 1947. The appeal not having been accompained by any proof of the payment of the tax in respect of which the appeal had been preferred, the authorities, after giving the assessee several adjourments, declined to admit the appeal. The assessee moved the Board of Revenue, Madhya Pradesh, by a revision application against• the order of the Sales Tax Commissioner contending that his appeal was not governed by the proviso to section 22 (1) of the Act as amended on the 25th November 1949, by the Central Provinces and Berar SaleS Tax (Second Amendment) Act (LVII of 194•9) but was governed by the proviso to section 22(1) of the Act as it stood when the assessment proceedings were started i.e. before the said amendment.1 The Board of Revenue took the view that as the order of assessment was made after the amendment of the section and appeal was filed thereafter such appeal must be governed by the provisions of law as it existed at the time the appeal was actually filcd and that the law as it existed before the filing of the appeal could not apply to the case. An application for writ to the High Court by the assessee was also dismissed. There was further appeal to the Supreme Court.
1. Section 22(1) of the Act was originally expressed in the following terms :-
"22. (I) Any dealer aggrieved by an ord(r under this Act may, in the prescribed manner, appeal to the prescribed authority against the order:
Provided that no appeal against an order of assessment, with or without penalty. shall be entertained by the said authority unless it is satisfied that such amount of tax or penalty or both as the appellant may admit to be due from him, has been paid,"
The relevant portion of section 22 an amended runs as follows ;-
"22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order:
Provided that no appeal against an order of assessment, with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with penahy, if any, in respect of which the appeal haB Qcen preferred," Held: (allowing the appeal): A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. To disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. For the purposes of the accrual of the right of appeal the critical and relevant date is the date of initiating of the proceedings and not the decision itself. The appeal could not therefore be rejected ~or non-payment of the tax in respect of which the appeal was preferred.}
Judgement
S. R. DAS, J. - On 28-11-1947, the appellant Hoosein Kasam Dada (India) Ltd., (hereinafter referred to as the assessee) submitted to the Sales Tax Officer, Akola, a Sales Tax return in Form IV for the first quarter. Notice in Form XI calling upon the assessee to produce evidence in support of the said return having been issued by the Sales Tax Officer, the assessee produced is account books. Not being satisfied by the inspection of the account books as to the correctness of the return and being of opinion that the taxable turnover exceeded rupees two lacs the Sales Tax officer submitted the case to the Assistant Commissioner Sales Tax, Amravati, for assessment. On 25-1-1949 the Assistant Commissioner issued a fresh notice in Form XI under S. 11 and fixed the case for disposal on 5-2-1949. After various adjournments and proceedings to which it is not necessary to refer the hearing commenced on 9-6-1949 when an agent of the assessee appeared with books of account of the Akola Branch. Eventually after various further proceedings the Assistant Commissioner on 8-4-1950 assessed the assessee, to the best of his judgment, in the sum of Rs. 58,657-14-0 and a copy of the order in Form XIV was sent to the assessee. Being aggrieved by the order of assessment the assessee on 10-5-1950 preferred an appeal to the Sales Tax Commissioner, Madhya Pradesh, under S. 22 (1), Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Act). The appeal not having been accompanied by any proof of the payment of the tax in respect of which the appeal had been preferred the authorities, after giving the assessee several adjournments, declined to admit the appeal. The assessee moved the Board of Revenue, Madhya Pradesh, by a revision application against the order of the Sales Tax commissioner contending that his appeal was not governed by the proviso to S. 22 (1) of the Act as amended on 25-11-1949 by the Central Provinces and Berar Sales Tax (Second Amendment) Act (Act 57 of 1949) but was governed by the proviso to S. 22 (1) of the Act as it stood when the assessment proceedings were started, i.e., before the said amendment. The Board of Revenue took the view that as the order of assessment was made after the amendment of the section and the appeal was filed thereafter such appeal must be governed by the provisions of law as it existed at the time the appeal was actually filed and that the law as it existed before the filing of the appeal could not apply to the case.
The assessee thereupon moved the High Court of Madhya Pradesh under Arts. 226 and 227 of the Constitution of India praying, amongst other things, for a writ of mandamus or an appropriate order directing the sales Tax Commissioner to admit and hear the appeal without demanding payment of the amount of sales Tax assessed by the Assistant Commissioner of sales Tax. The High Court dismissed the application on 2-8-1951. The assessee applied to the High Court for leave to appeal to this Court which was also dismissed by the High Court on 14-3-1952. The assessee thereupon applied to this Court for special leave to appeal on 12-5-1952. This Court granted special leave to appeal, but such leave was, by the order granting such leave, limited to the question of the effect of the amendment to S. 22 of the Act on the petitioner s appeal to the sales Tax Commissioner, Madhya Pradesh. This Court took the view that the other questions sought to be raised by the assessee would have to be decided by the sales Tax Commissioner in case the appeal succeeded. The appeal has now come up for final disposal before us and in this appeal we are concerned only with the limited question of the effect of the amendment to S. 22 of the Act.
2. Section 22 (1) of the Act was originally express in the following terms:
22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal, to the prescribed authority against the order:
Provided that no appeal against an order
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