TMI Blog2009 (8) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi Sales Tax Act whether further appeal, after repeal of the Delhi Sales Tax Act, would lie under the provisions of Section 81 of the new Delhi VAT Act, 2004 or whether the appellants have to seek reference under Section 45(1) or 45(2) of the old Delhi Sales Tax Act. 2. The respondent contends that the present appeals are not maintainable under the Delhi VAT Act and the appellant contends that the appeals are maintainable. 3. At this stage, it is relevant to reproduce Section 106 of the Delhi VAT Act which reads as under: 106. Repeal and savings.-(1) The Delhi Sales Tax Act, 1975(Act 43 of 1975), the Delhi Tax on Entry of Motor Vehicles into Local Areas Act, 1994 (Delhi Act 4 of 1995), the Delhi Sales Tax on Works Contract Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Gammon India Ltd. Vs. Spl. Chief Secretary others [2006] 145 STC 1(SC) and the earlier decision of the Supreme Court in the case of Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh 4 STC 114(SC). 5. Principally, the case advanced by the respondent, who has raised this preliminary objection as to non-maintainability of these appeals, is that by virtue of sub section (2) to Section 106 of the Delhi VAT Act, the repeal of the Delhi Sales Tax Act will not affect the previous operation of the said Act or any right, title, entitlement, obligation or liability already acquired, accrued or incurred thereunder. The contention is that the right of reference under the provisions of Section 45(1) and 45(2) of the Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under the 1948 Act and instead conferred on a party right of filing appeal or revision to the High Court by operation of section 68 of the Act on a substantial question of law. All these appeals which were decided by the Tribunal, after coming into force of the 2005 Act would, thus, be governed by the provisions of section 68 of the VAT Act and in all such cases the appeal or revision would lie to the High Court on a substantial question of law . 6. A reading of the judgment in the case of Gammon India Ltd.'s case (supra) is very instructive. The Supreme Court has considered in detail various S.T. Appeals No.2-3-4 and 5/ 2009. Page 5 decisions on this aspect both of English Courts as well as of the Supreme Court itself in order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns (2) and (3). 8. Before, however, we proceed to do so, it would be relevant to refer to two other judgments of the Supreme Court, namely, Maria Cristinia Desouza Sordu Vs. Amaria Jhurana Parera Pinta, 1979 Vol.I SCC 92 and P. Mohd Vs. Thisumalaya, AIR 1966 SC 430. In Maria's case (supra), the Supreme Court has laid down that though the right of appeal is a vested right/ substantive right, however the forum with respect to exercise of such right of appeal is not a vested right. It was held in the said case that the forum of filing of an appeal is a procedural matter and the Savings clause in a repealing statute and Section 6 of the General Clause Act has nothing to do with the forum where the remedy of appeal has to be pursued. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, there is no vested right in a forum of appeal and which is only a procedural matter. 10. The decision of the Punjab and Haryana High Court without relying upon the decision of the Gammon India's case has independently arrived at a decision that an appeal will lie under the new VAT Act. We, respectfully agree with this view as expressed in the said decision of the Punjab and Haryana High Court, also for additional reasons which we have indicated above. 11. Even if we look at the issue from the aspect of retrospectivity of a legislation, even then in such a case, we find that the legislature, qua the forum of appeal, has taken a conscious decision on retrospective operation of Delhi VAT Act as regards forum of a second appeal t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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