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TMI Blog1953 (2) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... t books. Not being satisfied by the inspection of the account, books as to the correctness of the return and being of opinion that the taxable turnover exceeded rupees two lacs the Sales Tax Officer submitted the case to the Assistant Commissioner, Sales Tax, Amravati, for assessment. On the 25th January, 1949, the Assistant Commissioner issued a fresh notice in Form XI under Section 11 and fixed the case for disposal on the 5th February, 1949. After various adjournments and proceedings to which it is not necessary to refer the hearing commenced on the 9th June, 1949, when an agent of the assesse appeared with books of account of the Akola Branch. Eventually after various further proceedings the Assistant Commissioner on the 8th April, 1950, assessed the assessee, to the best of his judgment, in the sum of ₹ 58,657-14-0 and a copy of the order in Form XIV was sent to the assessee. Being aggrieved by the order of assessment the assessee on the 10th May, 1950, preferred an appeal to the Sales Tax Commissioner, Madhya Pradesh, under Section 22 (1) of the Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Act). The appeal not having been accompanied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no appeal against an order of assessment, with or without penalty, shall be entertained by the said authority unless it is satisfied that such amount of tax or penalty or both as the appellant may admit to be due from him, has been paid. The relevant portion of Section 22 as amended runs as follows;- 22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order: 22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order: Provided that no appeal against an order of assessment, with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the See [1952] 3 S.T.C. 289. tax, with penalty, if any, in respect of which the appeal has been preferred. It is clear from the language used in the proviso to Section 22(1) as it stood prior to the amendment that an aggrieved assessee had only to pay such amount of tax as he might admit to be due from him, whereas under the proviso to Section 22(1) as amended the appeal has to be accompanied by sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] A.C. 369. to the Privy Council the respondents filed a petition taking the preliminary point that no appeal lay to the Privy Council and praying that the appeal be dismissed. In dismissing that application Lord Macnaghten who delivered the judgment of the Privy Council said: As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well-founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure. It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was in existence prior to the date of the amendment. The appellants claimed that on the 7th October, 1920, when the suit was filed they had vested in them by the existing law a substantive right to a Letters Patent appeal from the decision of a Single Judge and that an intention to interfere with it, to clog it with a new condition or to impair or imperil it could not be presumed unless it was clearly manifested by express words or necessary intendment. In giving effect to the contentions of the appellants Rankin, C.J., observed at page 518: Now the reasoning of the Judicial Committee in The Colonial Sugar Refining Company's (1) [1905] A.C. 369. Case is a conclusive authority to show that rights of appeal are not matters of procedure, and that the right to enter the superior court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior court. If the latter proposition be accepted, I can see no intermediate point at which to resist the conclusion that the right arises at the date of the suit. It was held that the new clause could not be given retrospective effect and accordingly the date of presentation of the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral in Council (1952) A.I.R. 1952 Punjab 103 (F. B.). The case of Nagendra Nath Bose v. Mon Mohan Singha Roy (1930) 34 C.W.N. 1009. is indeed very much to the point. In that case the plaintiffs instituted a suit for rent valued at ₹ 1,306-15-0 and obtained a decree. In execution of that decree the defaulting tenure was sold on the 20th November, 1928, for ₹ 1,600. On the 19 th December, 1928, an application was made, under Order 21, Rule 90, of the Code of Civil Procedure by the present petitioner, who was one of the judgment-debtors, for setting aside the sale. That application having been dismissed for default of his appearance the petitioner preferred an appeal to the District judge of Hoogly who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to Section 174, clause (c), of the Bengal Tenancy Act as amended by an amending Act in 1928. The contention of the petitioner was that the amended provision which came into force on the 21st February, 1929, could not affect the right of appeal from a decision on an application made on the 19th December, 1928, for setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of Section 22(1) as amended clearly makes the section retrospective. The new proviso, it is pointed out, peremptorily requires the authority not to admit the appeal unless it be accompanied by a satisfactory proof of the payment of the tax in respect of which the appeal is preferred and this duty the authority must discharge at the time the appeal is actually preferred before him. The argument is that after the amendment the authority has no option in the matter and he has no jurisdiction to admit any appeal unless the assessed tax be deposited. It follows, therefore, by necessary implication, according to the learned Advocate, that the amended provision applies to an appeal from an assessment order made before the date of amendment as well as to an appeal from an order made after that date. A similar argument was urged before the Calcutta Special Bench in Sardar Ali v. Dalimuddin (1929) I.L.R. 56 Cal. 512., namely, that after the amendment the Court had no authority to entertain an appeal without a certificate from the Single Judge. Rankin, C.J., repelled this argument with the remark at page 520: Unless the contrary can be shown, the provision which takes away jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohan Singha (1930) 34 C.W.N. 1009.. No cogent argument has been adduced before us to show that that decision is not correct. There can be no doubt that the new requirement touches the substantive right of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellant's pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure. Finally, Sri Ganapathy Aiyar faintly urges that until actual assessment there can be no lis and, therefore, no right of appeal can accrue before that event. There are two answers to this plea. Whenever there is a proposition by one party and an opposition to that proposition by another a lis arises. It may be conceded, though not deciding it, that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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