2006 (11) TMI 562 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Nature of the amendment to section 22(3) of the KST Act and section 14(3) of the Entry Tax Act-procedural or substantive.
2. Commencement of the lis-whether it starts on the date of filing the return or when required to be filed.
3. Impact of the amendment on the substantive right of appeal under the un-amended provisions.

Detailed Analysis:

1. Nature of the Amendment:
The primary issue was whether the amendment to section 22(3) of the KST Act and section 14(3) of the Entry Tax Act is procedural or substantive. The court held that the amendment is substantive in nature. This conclusion was drawn from precedents such as Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh and Garikapati Veeraya v. N. Subbiah Choudhury, which established that the right of appeal is a substantive right. The court emphasized that the right of appeal is vested from the date the lis commences and is governed by the law prevailing at that time.

2. Commencement of the Lis:
The court deliberated on when the lis commences-whether it is on the date of filing the return or when the return is required to be filed. The judgment referred to Khazan Chand Nathi Ram v. State of Haryana and Deputy Commercial Tax Officer v. Cameo Exports, concluding that the lis commences on the date the return is filed or is required to be filed. This interpretation aligns with the principle that the right of appeal is vested from the initiation of the proceedings, not from the date of the decision.

3. Impact on Substantive Right of Appeal:
The court considered whether the amendment whittles down the substantive right of appeal acquired under the un-amended law. The court ruled that the amendment does not take away the right of appeal but only imposes a condition of pre-deposit for maintaining the appeal. This condition does not impair the right of appeal but is a statutory requirement that must be fulfilled. The court cited Commercial Tax Officer v. Swathi Traders and Gokak Mills v. Commissioner for Women's Compensation to support the view that the right of appeal is subject to legislative conditions, which can include pre-deposit requirements.

Conclusion:
The court concluded that the amendment to section 22(3) of the KST Act and section 14(3) of the Entry Tax Act is substantive and applies to appeals filed after the amendment, even if the returns were filed before the amendment. The lis commences on the date of filing the return, and the right of appeal is vested from that date. The amendment does not take away the substantive right of appeal but imposes a pre-deposit condition, which is a valid legislative requirement. The court directed the Tribunal to accept the appeals if the assessees comply with the pre-deposit condition within four weeks.

The questions of law were answered in favor of the Revenue, and the appeals were accepted with the condition that the assessees comply with the relevant pre-deposit provisions.