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TMI Blog2013 (5) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... Badar Durrez Ahmed, J (Oral) 1. These writ petitions raise common issues and are, therefore, being decided together. We shall refer to the facts of the W.P.(C) No.2763/2013. The petitioner has challenged the order dated 21.03.2013 whereby the Special Commissioner has directed the petitioner to deposit a sum of ₹ 25 lacs as a condition precedent for hearing the objections. While doing so, the said Special Commissioner invoked the provisions of the 3rd proviso to Section 74(1) of the Delhi Value Added Tax Act, 2004 (hereinafter referred to as the said Act ). The said 3rd proviso was introduced with effect from 01.10.2011 by virtue of the Delhi Value Added Tax (Second Amendment) Act, 2011. 2. In respect of W.P.(C) No.2763/2013, the relevant period is the financial year 2010-2011 whereas in W.P.(C) No.2766/2013, the relevant period is the financial year 2008-2009. In so far as W.P.(C) No.2763/2013 is concerned, the petitioner had filed returns on a monthly basis under the assessment procedure provided in Section 31 of the said Act. Subsequently, the Value Added Tax Officer passed 12 separate default assessment orders for each month of the financial year 2010-2011 on 26.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced by the learned counsel for the petitioners, the learned counsel appearing on behalf of the respondents, first of all, submitted that there was nothing new which was introduced by virtue of the insertion of the 3rd proviso to Section 74(1) of the said Act. It was contended that Section 35(2) permitted the enforcement of recovery of the assessed tax and penalty even before the objections were disposed of or resolved by the Objection Hearing Authority. It was submitted that although the language of sub-section 2 of Section 35 of the said Act is couched in the negative, in the sense that, it has been provided that the Commissioner may not enforce the payment of any amount in dispute under an assessment until the objection is resolved by the Commissioner, it did not mean that the Commissioner could not enforce the payment of the assessed tax and penalty before the objections were resolved. It was contended that even under Section 35(2), the Commissioner could ask for payment of the assessed tax and penalty. Therefore, according to the learned counsel for the respondents, nothing new as such has been added by the insertion of the 3rd proviso to Section 74(1) of the said Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount in dispute under that assessment until the objection is resolved by the Commissioner. (3) Nothing in this section shall stay any proceedings by the Commissioner or before a court for the recovery of (a) any amounts due under this Act that are not the subject of a dispute before the Commissioner; or (b) any amounts due under this Act where the person has made an appeal to the Appellate Tribunal. (4) xxxx xxxx xxxx 74. Objections (1) Any person who is dis-satisfied with (a) an assessment made under this Act (including an assessment under section 33 of this Act); or (b) any other order or decision made under this Act, may make an objection against such assessment, or order or decision, as the case may be, to the Commissioner: PROVIDED that no objection may be made against a non-appealable order as defined in section 79 of this Act: PROVIDED FURTHER that no objection against an assessment shall be entertained unless the amount of tax, interest or penalty assessed that is not in dispute has been paid failing which the objection shall be deemed to have not been filed: PROVIDED ALSO that the Commissioner may, after giving to the dealer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicate that the said proviso was applicable retrospectively by implication. 10. In this background, it would be pertinent, at this juncture, to examine the decisions referred to by the learned counsel for the parties. In Hoosein Kasam Dada (supra) the Supreme Court held that a right of appeal was not merely a matter of procedure but that it was a substantive right. It further held that the right of appeal from a decision of an inferior Tribunal to a superior Tribunal becomes vested when the proceedings are first initiated in and before a decision is given by a inferior court/Tribunal. 11. It was also observed by the Supreme Court that a provision which is calculated to deprive the appellant of a vested settled right of appeal cannot be regarded as a mere alteration in procedure. The Supreme Court, inter alia, observed as under:- Finally, Sri Ganapathy Iyer 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision or at the date of the filing of the appeal. The court held as under:- 37. In view of the above discussion, we hold that right of appeal is a vested right as if exists on the date of commencement of lis. The lis can be said to commence under the HGST Act on the date when return is filed or is required to be filed. Therefore, the provisions of section 39(5) of the HGST Act would continue to govern the right of appeal vested in the petitioner which is saved in terms of section 4 of the Punjab General Clauses Act (as applicable to State of Haryana). 14. It is obvious that the Punjab and Haryana High Court took the view that the lis in that case had commenced on the date when the return was filed or was required to be filed. 15. In Vitthalbhai Naranbhai Patel (supra) a Constitution Bench of the Supreme Court noticed its earlier decision in Hoosein Kasam Dada (supra) and approvingly noted that the decision in Hoosein Kasam Dada s case proceeded on the ground that when a lis commences, all rights get crystallized and no clog upon a likely appeal can be put, unless the law was made retrospective expressly or by clear implication. However, on the facts of the case before i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at interference can only be done by an expressly retrospective amendment or by an amendment which is clearly retrospective by implication. In the present case, we find that there is no express retrospectivity insofar as the 3rd proviso to Section 74(1) is concerned nor can any retrospectivity be read into the said provision by implication. Therefore, in view of the above decisions, the law applicable would be the one that obtained on the date when the returns were filed. In the present writ petitions, the returns were filed much prior to the introduction of the 3rd proviso of Section 74(1) and therefore, the said proviso would have no applicability. Consequently, the Commissioner could not have insisted on the petitioners making a pre-deposit as a condition for having their objections heard. 18. As regards the submissions made by learned counsel for the respondents that nothing new was introduced by the 3rd proviso to Section 74(1) inasmuch as similar provisions were contained in Section 35(2) of the said Act, we fail to see how this can be an argument at all. This is so because the provisions of the Section 35(2) and the 3rd proviso of Section 74(1) of the said Act operate in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with lightly. Therefore, all the decisions referred to by the learned counsel for the petitioners and which have been taken note of by us, would be equally applicable to the objections under Section 74 of the said Act. 21. Even the decision cited by the learned counsel for the respondents in the case of Sales Tax Bar Association (supra) does not tend to support any of the contentions raised by her. On the contrary, it would tend to support the submissions made on behalf of the petitioner. This would be apparent from the following extract from the said decision:- 21 .. Section 35(2) again provides that where objections have been preferred, the demand under Sections 32 and 33 may not be enforced until the objection is resolved. A conjoint reading of the said provisions clearly shows that enforcement of the demand under Sections 32 and 33 if made the subject matter of objection, is dependent upon the outcome of the objections and till the objections are decided, the disputed demand under Sections 32 and 33 is not to be enforced. Though undoubtedly the third proviso to Section 74(1) has now given a power to the Objection Hearing Authority to direct the disputed tax or penalty or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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