JUDGMENT :

R.D. Dhanuka, J.

1. The Division Bench of this Court at Mumbai by its order dated 14th October 2019 passed in this appeal found it difficult to reconcile the conflicting views of this Court in Ansul Impex Pvt. Ltd. Vs. State of Maharashtra and as such formulated three questions for consideration by Larger Bench. Accordingly Larger Bench is constituted pursuant to the Administrative Order passed by the learned Chief Justice.

2. The Division Bench has referred the following questions of law to the full bench :-

(a) Whether the State of Maharashtra has legislative competence to enact the Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 2017 and the Maharashtra Tax Laws (Amendment and Validation) Act, 2019 to amend the provisions of the Maharashtra Value Added Tax Act, 2002 to incorporate mandatory pre-deposit for filing appeals against the assessment orders pertaining to all the goods after 16th September 2016 that is post 101 Constitutional Amendment Act, 2016 ?

(b) Whether Explanation to Section 26 of the MVAT Act introduced with effect from 15th April 2017 by the Maharashtra Tax Laws (Amendment and Validation) Act, 2019 takes away the right of the assessee to file an appeal without statutory deposit in respect of orders passed for the assessment years prior to 15th April 2017 and whether the Explanation nullifies the decision of the Division Bench of this Court (Nagpur Bench) in the case of Anshul Impex Pvt. Ltd. Vs. State of Maharashtra in Sales Tax Appeal No.2/2018?

(c) Whether the decision of the Division bench in the case of Anshul Impex Pvt. Ltd. Vs. State of Maharashtra laying down that right of filing appeal accrues on the date of order of assessment and requirement of mandatory pre-deposit introduced by way of amendment does not apply to the orders passed in the assessment years prior to 15th April 2017, is a correct proposition since the right of appeal can be made conditional by the Legislature with express indication and, therefore, the decision in the case of Anshul Impex Pvt. Ltd. Vs. State of Maharashtra requires reconsideration by the Larger Bench ?

Facts and submissions in Writ Petition No. 2883 of 2018

3. The petitioners filed first quarterly returns for the period 2013-2014, under the Maharashtra VALUE ADDED TAX ACT , 2002 (hereinafter referred to as ‘the MVAT Act , 2002’) on 24th July 2013. On 18th July, 2016, the assessment proceedings were initiated by the Deputy Commissioner of Sales Tax, Issue Base Audit, Mumbai. On 13th October 2017, the assessing officer passed an assessment order for the period 2013-2014 under the MVAT Act , 2002. On 10th July 2018 , the petitioner filed a stay application in Form No. 311 of the MVAT, Act. 2002 before the Joint Commissioner of State Tax, (Appeals) Mumbai. It being the First Appellate Authority. The petitioners also filed appeal in Form No. 301 before the State First Appellate Authority.

4. The Joint Commissioner of State Tax (Appeals) II addressed a letter to the petitioners on 10th August, 2018, inviting attention to Section 26 (6A) of the MVAT Act , 2002 and stated that until a part payment towards the tax liability is made, as per the said provisions of the MVAT Act , 2002, the document submitted by the petitioners cannot be called as an appeal.

5. The MVAT Act , 2002 came into force w.e.f. 1st March 2005 to consolidate and amend the Laws regarding levies and collection of tax on sales and purchase of certain goods in the State of Maharashtra. The said Act was amended from time to time. Section 2(12) of the MVAT Act , 2002 defines “goods’’ as all kinds of movable property not being the properties mentioned in the said sub-section such as newspaper, actionable claims, money, stock, share etc. Section 2(24) defines ‘Sale’ as sale of goods within the State for cash or deferred payment or other valuable consideration excluding the categories listed therein. The incidence of tax is provided in Section 3 and certain goods on which tax was not leviable were r