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TMI Blog2009 (3) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration for hearing i.e. for consideration on merit. State of Haryana v. Maruti Udyog Ltd. and Ors.[ 2000 (9) TMI 946 - SUPREME COURT] . In CIT, Bombay v. Filmistan Limited [ 1961 (2) TMI 2 - SUPREME COURT] , the Supreme Court examined a case where appeal under the provisions of Income Tax Act, 1922 was filed within limitation without meeting requirement of pre-deposit condition. However, tax was paid after the period of limitation prescribed for presenting the appeal. The provisions read that no appeal shall lie in view of the proviso to Section 30(1) of the Income Tax Act it mean that appeal could not be held have been properly filed until tax was paid any memorandum of appeal could not be presented. In view of the above, law can be summarised that if a condition of pre-deposit is imposed, a party while filing the appeal is bound to meet the requirement of the pre-deposit condition. However, it will depend upon the language of statutory provisions particularly the words use therein as to whether the memo of appeal can be presented/filed or instituted without meeting the pre-deposit condition. In case entertaining the appeal is not permissible, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed Diesel lubricants from Vishakhapatnam to its customer South Eastern Railways of various destinations in the State of Orissa. Opposite Party No. 3 issued notices on 21st January, 2002 (Annex.-2 series) asking the Petitioner to show cause as to why it should not pay entry tax on the scheduled goods i.e. High Speed Diesel imported from outside the State of Orissa. Petitioner filed its reply to the said show cause on 5th February, 2002 (Annex.-3) explaining that sale of said goods was made in the course of inter state trade. Hence liability of payment of entry tax would be on South Eastern Railway i.e. the purchaser. Opposite Party No. 2 issued a circular dated 23rd December, 2002 (Annex.-4) expressing his opinion that entry tax can be imposed on the Union of India also. However, after having the proceedings under Section 7 (4) of the Orissa Entry Tax Act, 1999 (hereinafter called the 'Act') the assessment Order Dated 16th March, 2002 (Annex.-5 series) was passed levying entry tax on the Petitioner, holding that Petitioner was liable to entry tax amounting to ₹ 45,83,574, ₹ 1,51,41,280 ₹ 1, 07,97,094 for the period December 1999 to March, 2000, April 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. 7. Further, there can be no quarrel to the settled legal proposition that right of appeal may not be absolute. The legislature can put conditions for maintaining the same. In Vijay Prakash D. Mehta Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay AIR 1988 SC 2010, the Hon'ble Apex Court held as under: Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial or quasi-judicial adjudications. The right to appeal is a statutory right it can be circumscribed by the conditions in the grant... If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of these conditions that he right becomes vested exercisable to the Appellant...The purpose of the Section is to act in terrorism to make the people comply with the provisions of law. 8. Similar view has been reiterated by the Hon'ble Apex Court in Anant M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be construed strictly (vide Manish Maheshwari v. Asst. Commissioner of Income Tax and Ors. AIR 2007 SC 1696; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector ETIO and Ors. AIR 2007 SC 1984; Bhavya Apparels (P) Ltd. and Anr. v. Union of India and Anr. (2007) 10 SCC 129). 13. In view of the above, it becomes evident that the appeal is a statutory right, which can be created only by the Legislature it does not lie by acquiescence I consent of the parties or even the Writ Court is not competent to create the Appellate forum if not provided under the Statute. If legislature in its wisdom has imposed certain conditions, like pre-deposit for the purpose of filing or hearing of the appeal, the Courts are supposed to give strict adherence to the statutory provisions. The purpose of imposing the pre-deposit condition is that right of appeal may not be abused by any recalcitrant party there may not be any difficulty in enforcing the order appealed against if ultimately it is dismissed. There must be speedy recovery of the amount of tax due to the authority. 14. In Lakshmi Rattan Engineering Works Ltd. v. Asst. Commissioner of Sales Tax, Kanpur and Anr. AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary implication or expressly the appeal is to be decided without enforcing the pre-deposit condition. The right of appeal under the old Act 1939 would not be dislodged by the proviso to Section 173 of the Act, 1988. 18. Hoosein Kasam Dada (India) Ltd. v. State of M.P. AIR 1953 SC 221; State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980; Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax AIR 1967 SC 344, the Apex Court had taken a view that unless the new Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystallize for the Appellant in the institution of the application in the Tribunal that vested right of appeal would not be dislodged by the enactment of the new Act. 19. In Rajendra Kumar v. Kalyan (dead) by LRs. AIR 2000 SC 3335, the Apex Court considered the application for amendment of the C.P.C. in 1976 in explanation VIII to Section 11 held that in absence of any express ban on its retrospectivity, a statute dealing with matters of procedure is normally retrospective. 20. In K. Kapen Chako v. Provident Investment Company (P) Ltd. AIR 1976 SC 2610, a similar vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulate the procedure of appeal. Therefore, in such an eventuality, where there is no prohibition for filing the memorandum of appeal without meeting the pre-deposit condition, the appeal can be heard only after meeting it. 23. The Apex Court time again held that right of appeal is a substantive right, but how the appeal is to be decided is a matter of procedure. The rules of procedure are intended to advance justice not to defeat it. Procedural law is intended to facilitate not to obstruct the course of substantive justice. (vide Hoosein Kasam Dada (India) Ltd. v. State of M.P. AIR 1953 SC 221; Garikapati Veeraya v. N. Subbiah Choudhry AIR 1957 SC 540; Ganesh Trading Co. v. Moji Ram AIR 1978 SC 484; Harcharan v. State of Haryana AIR 1983 SC 43; Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors. AIR 2003 SC 2434). 24. In the instant case, as the provision of the pre-deposit condition for entertaining the appeal has been deleted prior to entertaining the appeal being a procedural matter, the amendment would apply retrospectively. The instant case is squarely covered by the Judgment of the Hon'ble Supreme Court in Lakshmi Rattan Engineer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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