1958 (4) TMI 105 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Whether the remedy under section 12(2) of the Sales Tax Act is a right vested in the assessee.
2. If it is a right, whether the amendment introduced by section 6 of Amendment Act, No. 11 of 1955, requiring the assessee to pay the tax referable to the revision petition, applies to petitions against orders of assessment passed prior to the date of amendment.

Issue-wise Detailed Analysis:

Issue 1: Whether the remedy under section 12(2) of the Sales Tax Act is a right vested in the assessee.
The primary contention revolves around whether section 12(2) of the Madhya Bharat Sales Tax Act confers a vested right to the assessee to file a revision petition. The assessee argued that the legislative intent was to provide two alternative remedies: an appeal under section 11(1) within sixty days or a revision petition under section 12(2) within six months. The assessee's counsel cited several cases, including Shah Khimji Shamji v. State of Bombay, A. V. Sreenivasalu Naidu v. Commissioner of Income-tax, Madras, and Hanuman Prasad Agarwalla v. Rabindralal Barua and Another, to support the view that the right of appeal or revision is a vested right that cannot be affected by subsequent amendments unless explicitly stated.

The court examined the provisions of sections 11 and 12 of the Act. Section 11 provides for an appeal against an order of assessment, refund, or penalty, while section 12(1) empowers the Commissioner to revise any order suo motu or upon being moved by the assessing authority. Section 12(2) allows the Commissioner to revise an order at the instance of a dealer within six months from the date of the order. The court noted that the remedy by way of revision is available to an assessee as an alternative remedy and there are no limitations prescribed by the Act upon the powers of the Commissioner while acting in exercise of his revisional jurisdiction for correcting errors. Therefore, the court concluded that the remedy by way of revision is a right vested in the assessee.

Issue 2: If it is a right, whether the amendment introduced by section 6 of Amendment Act, No. 11 of 1955, requiring the assessee to pay the tax referable to the revision petition, applies to petitions against orders of assessment passed prior to the date of amendment.
The court then considered whether the amendment to section 12(2), which introduced a requirement for the assessee to pay the full tax before a revision petition could be entertained, applied to cases where the assessment order was passed before the amendment. The assessee argued that the right to file a revision petition without prepayment of tax was a vested right and could not be taken away by a subsequent amendment. The court referred to the case of Messrs Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh, where the Supreme Court held that an amendment imposing a new burden on the right of appeal could not affect the vested right of appeal from decisions in assessment proceedings initiated before the amendment.

The court also considered the decision in Hanuman Prasad Agarwalla v. Rabindralal Barua and Another, where the Assam High Court held that the right to file a revision petition was a vested right and could not be affected by a subsequent amendment. The court concluded that the amendment requiring prepayment of tax as a condition precedent to the entertainment of a revision petition could not apply to petitions against orders of assessment passed prior to the date of the amendment.

Conclusion:
The court allowed the petition, setting aside the Commissioner's order refusing to entertain the revision petition on the ground that it was unaccompanied by proof of tax payment. The Commissioner was directed to hear the revision petition. The court answered the questions referred in favor of the petitioner, establishing that the remedy by way of revision under section 12(2) is a vested right and the amendment requiring prepayment of tax does not apply to cases where the assessment order was passed before the amendment.