1976 (7) TMI 161 - HC - VAT and Sales Tax

Summary

Issues:
Interpretation of section 9(1)(b) as amended in 1970 and its applicability to the case of the assessee.

Analysis:
The judgment of the Allahabad High Court, delivered by Justice Sahai, addressed the issue of whether section 9(1)(b) as amended in 1970 was applicable to the case of the assessee. The facts revealed that proceedings under section 21 were initiated in 1966, leading to an ex parte assessment order. Upon appeal, the case was remanded for reassessment, resulting in a fresh order in 1970. The appeal was dismissed by the Assistant Commissioner due to non-deposit of 20% of the tax assessed, as required by the amendment in section 9. The assessee argued that since the proceedings began before 1970, the right to appeal under the unamended section 9 should apply. The court considered precedents emphasizing that the right of appeal is substantive, not procedural. Citing the Supreme Court's decision in Hoosein Kasam Dada's case, the court concluded that the amendment imposing the deposit requirement affected the assessee's right of appeal.

The court further analyzed the decision in Hardeodas v. Assam State, which involved initiation of proceedings in 1957 before an amendment in 1958. The Supreme Court in that case held that the amendment applied to assessments completed after its enactment. The court found no conflict between the two Supreme Court decisions and applied the principles of Hoosein Kasam Dada's case to the present matter. The court rejected the department's argument, ruling in favor of the assessee based on the timing of the initiation of proceedings post-amendment. Consequently, the court answered the reference in the negative against the Commissioner and in favor of the assessee, granting costs to the assessee.

In conclusion, the judgment clarified the application of the amended section 9(1)(b) to the assessee's case, emphasizing the substantive nature of the right to appeal and the impact of amendments on such rights. By aligning with established legal principles and precedents, the court upheld the assessee's entitlement to appeal without the deposit requirement based on the timing of the initiation of proceedings post-amendment.