1999 (11) TMI 855 - HC - VAT and Sales Tax

Summary

Issues:
Challenge to order rejecting appeals for non-payment of tax difference, applicability of amendment to petitioner's case, right of appeal as a substantive right.

Analysis:

1. The petitioner challenged the order rejecting its appeals due to non-payment of 25% of the tax difference assessed by the authority. The assessment orders for 1986-87, 1987-88, and 1988-89 were passed, leading to the appeals. The second respondent refused to entertain the appeals without the required payment, prompting the petitioner to file writ petitions against this decision.

2. The key issue was the applicability of the amendment introduced under Act No. 14 of 1999, which required the payment of 25% tax difference as a condition to entertain appeals. The petitioner argued that since the lis had commenced before the amendment, the amended provision could not be applied unless made retrospective. The court emphasized that the right of appeal is substantive and exists from the date the lis commences, as established in various legal precedents.

3. Citing decisions such as Garikapati Veeraya v. N. Subbiah Chowdhry and Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, the court reiterated that the right of appeal is vested and can only be taken away by a subsequent enactment expressly or by necessary implication. The Division Bench's ruling in State of Madras v. Latheef Hameed & Co. further supported the preservation of the right to file an appeal under the earlier Act despite subsequent amendments.

4. Additionally, the court referred to the judgment in State of Andhra Pradesh v. Hindustan Shipyard Limited, emphasizing that the substantive power to entertain and hear appeals remains undisturbed, and any incidental or ancillary powers flow from this substantive right. The court concluded that the appellate authority erred in returning the appeal papers based on non-compliance with the amended provisions, directing the authority to consider the appeals based on the pre-amendment provisions.

5. In light of the established legal principles and the fact that the lis had commenced before the amendment, the court set aside the decision of the appellate authority and directed them to handle the appeals and stay petitions in accordance with the provisions before the amendment. The writ petitions were allowed, with no costs incurred by the petitioner.