9911796707
TMI Blog1999 (11) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent, after considering the petitioner's objection. Aggrieved by the said assessment orders, the petitioner filed appeals before the second respondent. The second respondent returned the papers mentioning that unless the petitioner pays the 25 per cent of the difference of tax assessed by the assessing authority, the Appeals could not be entertained. Hence, the petitioner has filed the above writ petitions, challenging the said return of papers by the second respondent/appellate authority. 3.. Prior to the amendment under the Act No. 14 of 1999, there is no such condition that the 25 per cent of the difference of tax assessed by the Assessing Authority, should be paid, as a pre-condi- tion to entertain the Appeal. For the first time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lis commences, even though the litigant ex- ercised his right to file appeal against the order pronounced against him. The apex Court in Garikapati Veeraya v. N. Subbiah Chowdhry AIR 1957 SC 540, formulated the principles, from the decisions in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114 (SC); AIR 1953 SC 221, Ganpat Rai Hiralal v. Aggarwal Chamber of Commerce Ltd. AIR 1952 SC 409, R.M. Seshadri v. Prov- ince of Madras AIR 1954 Mad. 543, In Re Reference under section 5, Date of coming into force is 10-6-1999-See [1999] 114 STC Statutes 48. Court Fees Act AIR 1955 Bom. 287 and in Sawaldas Madhavdas v. Arati Cotton Mills Ltd. AIR 1955 Bom. 332, and has held as follows: "From the decisions cited above, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition which was made in the High Court, and we cannot allow that petition to be amended. That petition does not mention the dates on which the return was filed, so that we could apply the dictum of this Court in Hoosein Kasam Dada's case [1953] 4 STC 114; (1953) SCR 687. Dr. Barlingay deduces the date of the filing of the return from the dates on the challans accompanying the payment of tax in the treasury, and argues that this was prior to the amendment. He contends that this is sufficient for the application of the principle in the said case. The decision in Hoosein Kasam Dada's case [1953] 4 STC 114; [1953] SCR 687 proceeded on the ground that when a lis commences, all rights get crystallised and no clog upon a likely appeal can be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee under the old Act to file an appeal and a further appeal; and he can pursue this remedy, as if the Madras General Sales Tax Act, 1959, had not been passed. The words in the amending Act as if this Act had not been passed appear to us to be decisive. The remedy is preserved and can be continued as if the new Act (the 1959 Act) had not been passed, and that means, for purposes of preserving and prosecuting that remedy, the 1959 Act should be ignored. That we think is the effect of the words 'as if this Act had not been passed'. The remedy so preserved for the assessee is related to the appellate powers as contemplated by the 1939 Act. We are not, in this case, called upon to decide the effect of dropping the Commercial Tax Officer and brin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be so, submits the learned Government Pleader, the said incidental power is clearly taken away with retrospective effect. We find it difficult to agree. The retrospective effect must be given either by express language, or must arise by necessary impli- cation. We are not satisfied that any such intention is evidenced by the Amendment Act. We can illustrate our view by giving an example. Take a situation where the very right of appeal has been taken away by the Amendment Act. In such a situation, it cannot be disputed that in the case of assessment years falling prior to the Amendment Act, the right of appeal would be saved, and would be available. If the right of appeal remains available, the incidental/ ancillary power to grant stay pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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