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TMI Blog2004 (3) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of law consequent to enactment of the Haryana Value Added Tax Act, 2003, w.e.f. April 1, 2003. However, for facility of reference, the facts are being taken from Civil Writ Petition No. 17178 of 2003. 2.. The petitioner is a registered dealer under the Haryana General Sales Tax Act, 1973 (for short the HGST Act ) and is engaged in the business of purchase of paddy. For the assessment year 1998-99, the Assessing Authority framed the assessment under the HGST Act and raised an additional demand on account of purchase tax calculated under section 6 of the HGST Act. The petitioner filed appeal along with an application under section 39(5) of the HGST Act for entertaining the appeal without prior payment of tax on account of financial hardship on March 3, 2003. However, before the appeal filed by the petitioner could be entertained by the learned Appellate Authority, the HGST Act was repealed by virtue of section 61(1) of the Haryana Value Added Tax Act, 2003 (for short the HVAT Act ). It was then alleged that under the HVAT Act, the appeal filed by the petitioner is required to be entertained without any condition of pre-deposit of tax assessed, therefore, the appeal filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973, the Haryana Value Added Tax Act, 2003 and the Punjab General Clauses Act, 1898 (as applicable to the State of Haryana): Haryana General Sales Tax Act, 1973: Section 25. Submission of returns and payment of tax.-(1) Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals, as may be prescribed. (2) Such dealer as may be required so to do by the assessing authority by notice served in the prescribed manner, and a dealer who has applied for the grant of registration certificate and no final decision in that behalf has been taken, and every registered dealer shall furnish such correct returns by such dates and to such authority as may be prescribed. (2A) to (5)................ Rule 17. Payment of tax and submission of returns [Section 25].-(1) Every registered dealer or a dealer on whom a notice in form ST-8 has been served under sub-section (2) of section 25 in the State or a dealer who has applied for the grant of registration certificate and no final decision in that behalf has been taken in the State shall furnish return to the appropriate assessing authority in form ST-9 or in form ST 10 or both, as the case may be, for each quarter of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication, appeal, revision or other proceedings made or preferred to any authority under the said Act, and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceedings under this Act as if it had been in force on the date on which such application, appeal, revision or other proceedings was made or preferred. Punjab General Clauses Act, 1898: Section 4. Effect of repeal.-Where this Act or any Punjab Act repeals any enactment, then, unless a different intention appears, the repeal shall not- (a) and (b) . (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed. 5.. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax, West Bengal [1967] 66 ITR 680 (SC); AIR 1968 SC 162. 8.. Mr. B.K. Jhingan, learned counsel for the petitioners in connected writ petitions has relied upon the following decisions: (i) Manphul Singh Sharma v. Smt. Ahmedi Begum (since deceased) through her legal representatives/successors, Judgments Today (1994) 5 JT 49 (SC); (ii) Hardeodas Jagannath v. State of Assam [1970] 26 STC 10 (SC). (iii) Gajraj Singh v. State Transport Appellate Tribunal (1996) 8 JT 356 (SC); and (iv) Shiv Shakti Co-operative Housing Society, Nagpur v. Swaraj Developers (2003) 6 SCC 659. 9.. Learned single Judge of this Court in the case of Haryana Spun Pipe Construction Co. [1983] 53 STC 112 has held that right of appeal is a mere creature of the statute and the Legislature which confers such a right can equally take it away or prescribe conditions for the exercise of the right which may be onerous or otherwise. The Legislature would be perfectly within its right to regulate the right of appeal conferred by it while imposing conditions or restrictions on its exercise, including the requirement of the deposit of a tax or penalty before the entertainment of the appeal. This Court held as under: It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Act, 1922, because in section 297(2), the Parliament has clearly evidenced a contrary intention by express provisions. It was held that in view of the provisions of section 297(2) of the Income-tax Act, 1961 the contrary intention would not be available. In the said case, it was held that the Commissioner had the jurisdiction to issue notice under section 33B of the Income-tax Act, 1922 even in 1963 in respect of assessment under 1922 Act. 12.. In Manphul Singh Sharma's case (1994) 5 JT 49 (SC), the honourable Supreme Court was considering the matter where the Delhi and Ajmer Rent Control Act, 1952, was repealed by the Delhi Rent Control Act, 1958. Sub-section (2) of section 57 of the Delhi Rent Control Act, 1958, contemplated that notwithstanding such repeal, all suits and other proceedings under the said Act pending at the commencement of the 1958 Act before any Court or other authority shall be continued and disposed of in accordance with the provisions of the said Act as if the said Act had continued in force and this Act had not been passed. It was contended that when a repeal is accompanied by a fresh legislation on the same subject, the provisions of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile it was existing law. The petitioner has relied upon the following observations made by the Supreme Court in the above case: Section 6 of the GC Act enumerates, inter alia, that where the Act repeals any enactment, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed of anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced. In India Tabacco Co. Ltd. v. Commercial Tax Officer, Bhavanipore [1975] 35 STC 95 at 100 (SC); (1975) 3 SCC 512 at 517 in paras 6 and 11, a Bench of three-Judge had held that repeal connotes abrogation and obliteration of one statute by another from the statute book as completely as if it had never been passed. When an Act is repealed, it must be considered, except as to transactions past and closed, as if it had never existed. Repeal is not a matter of mere form but is of substance, depending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e substituted the provisions of the HGST Act with retrospective effect. In the absence of an express enactment, the provisions of the new Act cannot apply to the proceedings pending on the date when the new Act came into force. Reliance was placed upon judgment of the Supreme Court in the case of Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114, wherein it has been held that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. The right of appeal vested in a party when proceedings are first initiated in, and before a decision is given by the inferior Court. Such pre-existing right of appeal is not destroyed by an amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that pre-existing right of appeal continues to exist must necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. The old Act continues to exist for the purpose of supporting the pre-existing right of appeal. The said case arose out of the Central Provinces and Berar Sales Tax Act, 1947, wherein originally right of appeal was given on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal. In either case there is an interference with existing rights contrary to the wellknown general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. 21.. A division Bench judgment of the Calcutta High Court in the case Nagendra Nath Bose v. Mon Mohan Singha Roy reported as AIR 1931 Cal 100, while considering the imposition of onerous condition in exercise of right or appeal held as under: We think the contention of the petitioner is well-founded and must prevail. That a right of appeal is a substantive right cannot now be seriously disputed. It is not a mere matter of procedure. Prior to the amendment of 1928 there was an appeal against an order refusing to set aside a sale for that is the effect also where the application to set aside the sale is dismissed for default under the provisions of order 43, rule 1 of the Code of Civil Procedure. That right was unhampered by any restriction of the kind now imposed by section 174(5), proviso. The court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right. The argument that the authority has no option or jurisdiction to admit the appeal unless it be accompanied by the deposit of the assessed tax as required by the amended proviso to section 22(1) of the Act overlooks the fact of existence of the old law for the purpose of supporting the pre-existing right and really amounts to begging the question. The new proviso is wholly inapplicable in such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist. The argument of Sri Ganapathy Aiyar on this point, therefore, cannot be accepted. 23.. Another argument which was dealt by the court was that no lis arises until actual assessment is made and, therefore, no right or appeal can accrue before that event. It was held that whenever there is a proposition by one party and an opposition to that proposition by another a lis arises. It was conceded, though not deciding it, that when the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3] 4 STC 114 (SC) and held that in the suit instituted on April 22, 1949, the right of appeal vested in the parties thereto on that date and is to be governed by the law as it prevailed on that date, that is to say, on that date the parties acquired the right, if unsuccessful to go up in appeal from the sub-court to the High Court and from the High Court to the Federal Court. Constitution Bench in an elaborate judgment concluded to the following effect: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kin, C.J., that the litigant cannot go from Court A to Court B or from Court B to Court C unless and until an adverse order actually is made but the right to go upto Court C vests, not at the date of the adverse judgment or the date of the filing of the appeal but, at the date of the institution of the original proceedings . 26.. Subsequently, in the case of Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, Madhya Pradesh [1961] 12 STC 219; AIR 1967 SC 344, another Constitution Bench of the Supreme Court was again seized of a matter pertaining to the Central Provinces and Berar Sales Tax Act, 1947, with the proposition as to when lis commences. The matter was being considered by the Supreme Court on a leave to appeal granted by the High Court. The court found that since the date of filing of return is not available in the records of the case, therefore, on facts it could not be concluded when the lis commenced. It was held by the Supreme Court as under: That leaves over for consideration the question whether Hoosein Kasam Dada's case [1953] 4 STC 114 (SC); [1953] SCR 987; AIR 1953 SC 221, should be applied. That also presents some difficulty to us. We have before us the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various cases, the illustrative though not exhaustive, principles which emerge with regard to the ambit and scope of an amending Act and its retrospective operation may be culled out as follows: '(i) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature. (iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates a new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier Constitution Bench judgments in Garikapati Veeraya's case AIR 1957 SC 540 and Vitthalbhai Naranbhai Patel's case [1961] 12 STC 219; AIR 1967 SC 344, were not brought to the notice of the court. The issue was debated exhaustively in Garikapati Veeraya's case AIR 1957 SC 540 quoting Hoosein Kasam Dada's case [1953] 4 STC 114 (SC), with approval. In view of the earlier binding principles having not brought to the notice of the court in Hardeodas Jagannath's case [1970] 26 STC 10 (SC), we are faced with difficulty how to resolve the conflicting judgments of co-ordinate Benches of the honourable Supreme Court. The matter was considered by a Full Bench of this Court in Indo Swiss Time Limited, Dundahera v. Umrao (1981) 83 PLR 335, wherein it has been held that in the event of two directly conflicting judgments of the superior Court and of equal authority, the judgment which appears to lay down the law more elaborately and accurately is required to be followed. It was held as under: When judgments of the superior Court are of co-equal Benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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