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TMI Blog2024 (6) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... UPREME COURT ]. The said judgment was later on affirmed by a Constitution Bench of the Hon ble Supreme Court in Garikapati Veeraya [ 1957 (2) TMI 54 - SUPREME COURT ]. In Messrs. Hoosein Kasam Dada, the Hon ble Supreme Court has held ' the appellant s appeal should not have been rejected on the ground that it was not accompanied by satisfactory proof of the payment of the assessed tax. As the appellant did not admit that any amount was due by it, it was under the section as it stood previously entitled to file its appeal without depositing any sum of money. We, therefore, allow this appeal and direct that the appeal be admitted by the Commissioner and be decided in accordance with law.' Thus, the appeals filed by the petitioner against the impugned assessment orders are required to be considered under Section 33 of the AGST Act, 1993 instead of Section 79 of the VAT Act, 2003 because lis arose in the matter with filing of returns by the petitioner, i.e. in the year 2002-2004, which is admittedly prior to coming into force of the VAT Act, 2003. Perusal of the order dated 29.07.2013 passed by the respondent No. 3, it is clear that the request made by the petitioner for waiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the M/s. P.G. Oil Traders was not aware about the said assessment orders. However, he came to know about the same when certain proceedings were initiated against him for recovery of the alleged dues. On enquiry, the petitioner came to know that the assessments have been concluded for the aforesaid assessment years and proceedings were initiated for recovery of the due tax amount. 6. The petitioner had, therefore, obtained certified copies of the assessment orders of the aforesaid years in the year December, 2012 and had preferred an appeal before the Deputy Commissioner of Taxes (Appeals), Jorhat/respondent No. 3. Along with the said appeal, the petitioner has also preferred stay application as well as condonation of delay application. 7. In those appeals, the date of hearing was fixed as 19.02.2013. However, the petitioner was asked to deposit 25% of the disputed tax. The petitioner had opposed the same and also prayed for waiver of requirement of deposit of 25% of the disputed tax. However, the Deputy Commissioner of Taxes (Appeals), Jorhat/respondent No. 3, dismissed the appeals filed on behalf of the petitioner vide impugned order dated 29.07.2013 while holding that the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner filed a writ petition, being WP(C) No. 6769/2014, before this Court. The said writ petition was allowed and the order passed by the Assam Board of Revenue dated 08.04.2014 was set aside and the matter was remanded to the Assam Board of Revenue for disposal afresh after hearing the petitioner. 10. On remand, the Assam Board of Revenue has taken up the matter and has dismissed the appeals vide order dated 16.07.2015, which reads as under: This appeal had been received by Registered Post. Neither the appellant nor his counsel had appeared to present his case. As there is a provision in the Act for giving congnizance to appeals are received by post, the matter had been taken up for examination and had been disposed by an order dated 27/03/14. The appellant approached the Hon ble High Court with the plea that the said order has been passed without affording him an opportunity of being heard. The Hon ble High Court remanded the matter to the Board with the direction to dispose it after hearing the appellant. The learned counsel for the appellant has been heard. This is an appeal against an order of the Deputy Commissioner of Taxes (Appeals), Jorhat dated 29.07.2013 wherein he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to be dismissed and even after remanding the matter by this Court vide order dated 06.01.2015, has dismissed the appeal while observing that the Deputy Commissioner has the power to waive it in his discretion if he feels that the case falls within certain parameters. 13. Learned counsel for the petitioner has submitted that the Assam Board of Revenue has not taken into consideration that the respondent No. 3 while dismissing the appeal filed by the petitioner has not even considered the request of the petitioner for waiver of the condition of pre-deposit of 25% of tax amount. It is contended that the order of the Assam Board of Revenue is contrary to the facts of the case and therefore, is liable to be set aside. 14. Learned counsel for the petitioner has submitted that it is settled position of law that the right of appeal is a vested and substantive right and it cannot be taken away without an express provision in the law of this effect either expressly or by necessary intendment. 15. It is contended that the dispute in relation to the assessment orders relates to the period, i.e. prior to introduction of the VAT Act, 2003, therefore, the appeal filed by the petitioner before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. (9) Sri Ganapathy Aiyar urges that the language of S. 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 any appeal from an order made after that date. A similar argument was urged before the Calcutta Special Bench in Sardar Ali v. Dolimuddin (E) (Supra), namely, that after the amendment the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal for the assessee may not be in a position to find the necessary money in time further this argument cannot prevail in view of the decision of the Calcutta High Court in Nagendra Nath v. Mon Mohan Singha (N) (supra). 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. (11) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) The vested right of appeal can be taken away only by a subsequent enactment, if it so proves expressly or by necessary intendment and not otherwise. 21. The Hon ble Supreme Court in a recent decision rendered in ECGC Limited Vs. Mokul Shriram EPC JV (supra), has relied upon the aforesaid decisions. In view of the above posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be noticed that the Assam Board of Revenue, without considering the said fact, has passed the impugned order dated 16.07.2015 while assuming that the Appellate Authority has considered the request of the petitioner for waiver of the condition of pre-deposit of 25% of the disputed tax and rejected the same when found the case to be unfit for such consideration. From the above, it is clear that the Assam Board of Revenue has not applied its mind while passing the impugned order dated 16.07.2015. 25. In view of above discussion, the instant revision petition is allowed. Consequently, the order dated 29.07.2013 passed by the respondent No. 3 and the order dated 16.07.2015 passed by the Assam Board of Revenue are set aside. The matter is remanded back to the Appellate Authority to consider and decide the appeal/appeals filed by the petitioner as per the provisions of Section 33 of the AGST Act, 1993. The Appellate Authority shall also consider the request of the petitioner for waiver of the condition of pre-deposit of 25% of the disputed amount as per the proviso to Section 33 (6) of the AGST Act, 1993 after providing due opportunity of hearing to the petitioner. 26. The dispute regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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