The right of appeal is a statutory right, and the legislature is competent to impose conditions for exercising such right.

JUDGMENT

T.S. Sivagnanam, J. - These intra court appeals filed by the dealers who were registered under the provisions of the West Bengal Value added Tax, act 2003 (the act) are directed against the judgment and order dated March 30, 2017 in M/s. Vatech Wabag Limited Versus Deputy Commissioner, Commercial Taxes, Midnapore Charge and Others 69 Sales Tax advisors 120. The appellants had filed the writ petitions seeking varied prayers and essentially in all the cases, the writ petitioners had challenged the vires of the second proviso to Section 84 (1) of the act. The Learned Single Bench by judgment dated March 30, 2017, dismissed all the writ petitions and upheld the vires of the second proviso to section 84 (1) of the act.

2. Mr. Bhattacharya, Learned advocate appearing for the appellant Vatech Wabag Limited, the lead case broadly raised five contentions:-

2.1. The first being that payment of 15 % of the disputed tax under Section 84 is a compulsory extraction and partakes the colour of a separate levy/tax hence unauthorized by law. Secondly, it was contended that under certain circumstances the act gives an opportunity to file appeal without prepayment which the revenue does not accept. Thirdly, the right to appeal is a substantive right which cannot be taken away, once the lis has started. Fourthly, the impugned provision is hit by the general principles of arbitrariness and unreasonableness, and, lastly the impugned provision infringes the fundamental rights guaranteed under article 19(1)(g) as the restriction contained in the impugned provision is far from being reasonable and realistic.

2.2. Elaborating his submission, on the first contention, it is submitted that the word used in Section 84 is 'payment' and not 'deposit'. The impugned proviso to Section 84 (1) nowhere specifically mentions that the amount has to be returned to the dealer and even Section 62 of the act which deals with refunds does not specifically mention that the prepayment made in terms of the impugned provision has to be returned. Reference was made to the P. Ramanatha, advance Law Lexicon to state that the payment is defined to be act of paying or that which is paid; discharge of a debt, obligations or duty; satisfaction of claim; recompense; the fulfillment of a promise or the performance of an agreement; the discharge in money of a sum due. Further it is submitted that the payment has no narrow technical legal meaning restricted to payment of money, as it signifies satisfaction of a claim. With regard to the meaning of the word 'deposit', it is submitted that the advance Law Lexicon explains deposit to mean that there must be a liability to return it to the party by whom it is made, it is not a sum lent but a sum deposited. Relying upon the decision of the Hon'ble Supreme Court in Commissioner of Income Tax. U.P - II Versus Bazpur Co-operative Sugar Factory Limited (1988) 172 ITR 321, it is submitted that it has been clearly held that essence of deposit is a liability to return. Referring to the decision of the Hon'ble Full Bench of this Court in Secretary, West Bengal Council of H.S. Education Versus Soumyadeep Banerjee aIR 2010 CaL 161 (FB), it is submitted that the 'deposit' cannot be synonymous with 'payment'. It is submitted that insisting upon payment of 15 % of the disputed tax in terms of the impugned proviso is in the nature of a compulsory extraction and therefore it has to be in the nature of a tax however, the WBVaT has no provision to tax the right to appeal of an aggrieved dealer.

2.3. With regard to the second contention, it is submitted that Section 2(45) of the act defines the term 'tax', Section 2(46) defines 'tax due' and Section 2(49) defines 'tax payable'. It is submitted that the 'tax payable' is defined as tax payable under the act on the sales or purchases but does not include tax due. 'Tax due' is defined as the amount which becomes due as per any notice of demand, but after the date mentioned therein. It is submitted 'tax due'