9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2004 (3) TMI 720 - HC - VAT and Sales TaxApplicability of the Haryana Value Added Tax Act, 2003 (HVAT Act) to appeals filed under the Haryana General Sales Tax Act, 1973 (HGST Act) - Interpretation of Section 61(2) of the HVAT Act and Section 4 of the Punjab General Clauses Act, 1898 - Whether the condition of pre-deposit of tax under the HGST Act applies to appeals pending after the enactment of the HVAT Act - HELD THAT - On the reading of section 61(2) of the HVAT Act, 2003 it is concluded that section 61(2) of the HVAT Act does not give any retrospective effect to the provisions of the aforesaid Act either expressly or by necessary implication. Sub-section (2) of section 61 of the HVAT Act, 2003, contemplates transfer of pending proceedings pertaining to application, appeal, revision or other proceedings to the authorities constituted under the HVAT Act, 2003 and to be disposed of by the authorities so constituted. Such authorities constituted under the HVAT Act has been given deemed fiction to be in existence for the purpose of such application, appeal, revision or such other proceedings so as to be in force on the date such application, appeal, revision or other proceedings have been made or preferred. Since expressly or by necessary intendment, no retrospective effect is sought to be given, therefore, the effect of repeal of the HGST Act is required to be examined with reference to section 4 of the Punjab General Clauses Act, 1898 (as applicable to the State of Haryana). 35.. Section 4 of the Punjab General Clauses Act, 1898 (as applicable to the State of Haryana) is the relevant provision of law in such a situation where the subsequent Act while repealing the old Act has not provided for any retrospective operation of the new Act either expressly or by implication. Section 4 of the Punjab General Clauses Act contemplates that in the absence of any contrary intention expressly or impliedly, any right, privilege, liability or obligation under the old law will continue to be governed under the old law. The assessee has a right to file appeal under the HGST Act with a liability or obligation to pre-deposit the amount of tax, interest and penalty. Such obligation or liability confers a right in favour of the State to insist upon pre-deposit of tax, interest or penalty. From the judgments of the honourable Supreme Court in Hoosein Kasam Dada's case 1953 (2) TMI 35 - SUPREME COURT and Garikapati Veeraya's case 1957 (2) TMI 54 - SUPREME COURT , it is apparent that the right of appeal is a vested right and accrues to the litigant and exists as on and from the date the lis commences. Such right is actually exercised when the adverse judgment is pronounced. Such right is to be governed by the law prevailing on the date of the institution of the suit or proceeding and not by the law that prevails on the date of its decision or at the date of the filing of the appeal. In civil proceedings, lis commences on the presentation of the plaint or in cases claiming compensation under the Motor Vehicles Act on filing claim application. The question is when lis can be said to commence under the taxation laws. Section 25 of the HGST Act enjoins a duty upon an assessee to file quarterly return and deposit tax thereon. If such returns are accepted, there is no lis. Consequently, there would be no occasion for the parties to file an appeal. However if such returns are not accepted, the cause of action which arise on the date when returns are required to be filed. The cause of action can be said to be arisen also when an assessee is called upon to furnish return on his failure to do so in terms of the provisions of the old Act. In fact, that is the relevant date as in Vitthalbhai Naranbhai Patel's case 1960 (9) TMI 84 - SUPREME COURT . Conclusion The court concluded that the right of appeal is a vested right and is governed by the law prevailing on the date of the institution of the suit or proceeding. The provisions of Section 39(5) of the HGST Act, which require the pre-deposit of tax assessed, continue to govern the right of appeal vested in the petitioner. The writ petitions were dismissed, and the petitioners were granted four weeks to comply with the conditions of Section 39(5) of the HGST Act.
Issues Involved:
1. Applicability of the Haryana Value Added Tax Act, 2003 (HVAT Act) to appeals filed under the Haryana General Sales Tax Act, 1973 (HGST Act). 2. Whether the condition of pre-deposit of tax under the HGST Act applies to appeals pending after the enactment of the HVAT Act. 3. Interpretation of Section 61(2) of the HVAT Act and Section 4 of the Punjab General Clauses Act, 1898. Summary: 1. Applicability of the HVAT Act to Appeals Filed Under the HGST Act: The petitioner, a registered dealer under the HGST Act, challenged the appellate authority's order requiring the pre-deposit of tax assessed as a condition precedent for hearing the appeal. The petitioner argued that under the HVAT Act, which repealed the HGST Act, no such pre-deposit condition exists, and thus, the appeal should be heard without pre-deposit. 2. Condition of Pre-Deposit of Tax: The court examined whether the condition of pre-deposit of tax under Section 39(5) of the HGST Act applies to appeals pending after the HVAT Act came into force. The court noted that the right of appeal is a substantive right and is governed by the law as it existed when the lis commenced. The court held that the right of appeal vested in the petitioner when the proceedings were initiated under the HGST Act, and this right includes the obligation to pre-deposit the tax assessed. 3. Interpretation of Section 61(2) of the HVAT Act and Section 4 of the Punjab General Clauses Act: The court interpreted Section 61(2) of the HVAT Act, which deals with the transfer and disposal of pending appeals, applications, revisions, or other proceedings under the old Act by the authorities constituted under the new Act. The court held that Section 61(2) does not give retrospective effect to the provisions of the HVAT Act. Therefore, the appeals pending at the commencement of the HVAT Act are to be disposed of in accordance with the provisions of the HGST Act. The court also referred to Section 4 of the Punjab General Clauses Act, which states that the repeal of an Act does not affect any right, privilege, obligation, or liability acquired under the repealed Act unless a different intention appears. Conclusion: The court concluded that the right of appeal is a vested right and is governed by the law prevailing on the date of the institution of the suit or proceeding. The provisions of Section 39(5) of the HGST Act, which require the pre-deposit of tax assessed, continue to govern the right of appeal vested in the petitioner. The writ petitions were dismissed, and the petitioners were granted four weeks to comply with the conditions of Section 39(5) of the HGST Act.
|
