2000 (6) TMI 789 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Applicability of the amendment to Section 35 of the Kerala General Sales Tax Act, 1963, to orders passed before the amendment date.
2. Whether the right of revision under Section 35 is a substantive right or merely a procedural right.
3. The impact of the amendment on the assessee's right to approach the Deputy Commissioner for revision.

Issue-wise Detailed Analysis:

1. Applicability of the Amendment to Section 35:
The primary question for consideration was whether the amendment to Section 35 of the Kerala General Sales Tax Act, 1963, effective from April 1, 1993, applies to orders passed before that date. The court noted that before the amendment, the Deputy Commissioner had the authority to call for and examine any order passed under the Act and pass orders as deemed fit. Post-amendment, this power could only be exercised if the order was prejudicial to the Revenue. The court concluded that the amendment does not apply retrospectively and does not affect orders passed before the amendment date.

2. Nature of the Right of Revision:
The court discussed whether the right of revision under Section 35 is a substantive right or merely a procedural right. The Revenue argued that the right of revision is procedural, and procedural amendments apply to pending proceedings. However, the court, referencing various judgments, including those from the Supreme Court and other High Courts, held that the right of revision is not merely procedural but a substantive right conferred by the statute. The court emphasized that a substantive right cannot be taken away without explicit retrospective effect.

3. Impact of the Amendment on the Assessee's Right:
The court analyzed the impact of the amendment on the assessee's right to approach the Deputy Commissioner for revision. It was observed that before the amendment, the assessee could bring any illegality or error in the order to the Deputy Commissioner's notice within four years from the date of the order. The court held that the amendment, which restricts the Deputy Commissioner's power to cases prejudicial to the Revenue, affects the substantive rights of the assessee. The court cited several precedents to support the view that statutory rights of appeal or revision, once conferred, are vested rights and cannot be impaired by subsequent amendments unless explicitly stated.

Conclusion:
The court concluded that the amendment to Section 35 of the Act does not apply to orders passed before the amendment date. It held that the right of revision under Section 35 is a substantive right, and the amendment affects this substantive right. Consequently, the tax revision cases were dismissed, and the Deputy Commissioner was directed to consider and dispose of the revision petitions filed by the assessee on merits. The writ appeal was allowed, setting aside the judgment of the learned single Judge, and the orders impugned by the assessee were quashed.

Judgment:
Petitions dismissed and appeal allowed.