The right of appeal is a mere creature of statute and the legislature which confers such a right can equally take it away or prescribe conditions for the exercise of this right.

S.S.Sodhi, J.

1. The matter here concerns proceedings under the law relating to sales tax and pertains to the assessment year 1972-73.

2. The Punjab General Sales Tax Act, 1948 (hereinafter referred to as the Punjab Act), was repealed by the Haryana General Sales Tax Act, 1973 (hereinafter referred to as the Haryana Act). There was a provision for appeal under the Punjab Act which has been retained in the Haryana Act but such appeal can now be entertained only on payment of admitted or assessed tax in terms of Section 39(5) thereof which reads as under :

No appeal shall be entertained unless it is filed within sixty days from the date of the order appealed against and the appellate authority is satisfied that the amount of tax assessed on, and the penalty and interest, if any, recoverable from the person has been paid : Provided that the said authority, if satisfied that the dealer is unable to pay the whole of the amount of tax assessed or the penalty imposed or the interest due, he may, if the amount of tax or interest admitted by the appellant to be due has been paid, for reasons to be recorded in writing, entertain the appeal subject to the furnishing" of a bank guarantee or adequate security for the payment of the amount finally determined to be due.

3. On 14th November, 1974, an ex parte assessment was framed on "best judgment" basis by the Assessing Authority, Kalka, respondent No. 3 (annexure P-1), whereby the petitioner-firm was taxed to the extent of Rs. 16,800 and was also imposed upon a penalty of Rs, 2,400. Besides this a penalty of Rs. 500 was imposed upon the petitioner under Section 9(3) of the Central Sales Tax Act, 1956, read with Section 10(6) of the Punjab Act. Appeals were filed against both these orders which were dismissed by the appellate authority, the Deputy Excise and Taxation Commissioner, Ambala, by his orders of 20th January, 1975 (annexures P-2 and P-3). A further appeal was then filed before the Sales Tax Tribunal which was dismissed on 22nd April, 1975 (annexure P-5), on the ground that it could not be entertained in view of the non-compliance with the provisions of Section 39(5) of the Haryana Act as no tax had been deposited as was required thereunder. It is this order which is challenged in this writ petition.

4. The point sought to be urged by the counsel for the petitioner was that as the assessment in this case related to a period prior to the coming into being of the Haryana Act, and one appeal having already been filed and decided under the Punjab Act, the appeal to the Sales Tax Tribunal was also governed by the provisions of the Punjab Act. The counsel in this behalf adverted to the proviso to Sub-section (1) of Section 65 of the Haryana Act, which is in the following terms :

65. (1) The Punjab General Sales Tax Act, 1948 (hereinafter referred to as the repealed Act), is hereby repealed : Provided that such repeal shall not affect the previous operation of the repealed Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken, shall 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 under the repealed Act at the commencement of this Act, may be recovered as if they had accrued under this Act.

5. The counsel for the petitioner contended that as it was specifically provided in the above proviso that, any right already acquired under the Punjab Act would not be affected by the Haryana Act, the right of appeal being such a right, could not be said to have been intended to be fettered by the provisions of Section 39(5) thereof. The argument being that the condition regarding deposit of tax and penalty prior to the entertainment of the appeal was so onerous in nature that it virtually took away the right of