TMI Blog1970 (10) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, assessed the petitioner by his order dated 31st March, 1963, estimating the additional turnover, which according to him had escaped assessment, at Rs. 1,50,000. Aggrieved by that order, the petitioner carried the matter in appeal to the Assistant Commissioner of Commercial Taxes who set aside the order of assessment and remanded the case to the assessing authority with a direction to enhance the turnover on the basis of certain further information available from the Income-tax authorities. This order was challenged by the petitioner before the Sales Tax Appellate Tribunal contending that the assessment in question is barred by limitation inasmuch as it was made beyond the period of four years prescribed under section 14 of the Act and that, even otherwise, the provisions of section 14(4) cannot be invoked for making a best judgment assessment and that in any event, the estimate made of the suppressed turnover is arbitrary. The Tribunal negatived the contention of limitation canvassed by the petitioner in view of the amendment to sub-section (4) of section 14, which was made retrospective in operation from 15th June, 1957, which empowered the authorities concerned to reo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken; and all arrears of tax and other amounts due at the commencement of this Act may be 'recovered as if they had accrued under this Act." It is the case of Mr. Dasaratharama Reddy that there was an obligation on the part of the petitioner to pay the tax assessed in accordance with the provisions of the repealed Act and to that extent only the rights of the respondent are saved. In other words, it is his case that the obligation or liability which arose under the previous enactments in the matter of assessments cannot be varied by reason of the retrospective application of subsection (4-A) of section 14. Ultimately, the question is whether the period of limitation enlarged by the amendment introduced in 1961 is applicable to the instant case. In support of his contention that six years period of limitation cannot be invoked, Mr. Dasaratharama Reddy relied upon a decision of this court, to which one of us (Obul Reddi, J.) was a party in S.L. Ramanatham v. Commissioner of Commercial Taxes, And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee had a right to be assessed only within three years according to the terms of the old Act, and since it was not done his accrued right could not be permitted to be adversely affected has Printed infra. no substance whatsoever. What is ignored in advancing this argument is that the right of the department to recover the tax and the corresponding obligation or liability of the assessee to pay the tax both are saved under the proviso to section 41 of the new Act. It is true that there was a fetter on the power or jurisdiction of the assessing authority to commence proceedings of assessment under rule 17 within three years and if the right of the department was barred at the time the new Act came into force, then merely because the new Act provides four years' period the lost right of the department could not have been revived and the assessee could have successfully argued in such a case that since three years' period prescribed by rule 17 has expired by the time the new Act came into force, the assessee had acquired a right, if that can be said to be a right, not to have his assessment made or reopened. But the correct way to put it is that as the power of the assessing authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GMENT The judgment of the court was delivered by GOPAL RAO EKBOTE, J.-The petitioner-firm is a registered dealer and deals in mica. For the year 1956-57 the firm was assessed to sales tax on a turnover of Rs. 4,94,315-6-5 by an assessment order dated 30th September, 1958. On information the assessing authority after due notice assessed the dealer on an additional turnover of Rs. 1,50,000 as escaped turnover by its order dated 31st March, 1963. Aggrieved by that order the petitioner-firm preferred an appeal to the Assistant Commissioner. The appellate authority thought that the escaped turnover is more than what has been found by the assessing authority. The appellate authority therefore by its order dated 28th September, 1964, remanded the case to the assessing authority with a direction to proceed on the lines suggested in the order. The firm further carried an appeal to the Sales Tax Appellate Tribunal. The Tribunal by its order dated 9th March, 1966, directed the remand of the case to the assessing officer after setting aside the order of the appellate authority. The assessing authority was asked to make a fresh assessment in the light of the observations made in that orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enjoined that in the event of any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may determine the turnover that has escaped assessment and assess the turnover to tax which is determined after notice and enquiry made in that behalf. By the Amendment Act of 1961, section 14(4) was amended with retrospective effect as per section 1(2) of the said Act from 15th June, 1957. Under the said amended section, the reassessment can be made within a period of six years from the expiry of the year to which the tax related if any part of the turnover has escaped assessment on account of the failure of the dealer to disclose the turnover or any other particulars correctly. Section 14 was further amended by section 15 of the Amendment Act 16 of 1963. According to this substituted sub-section (4-A), an assessment shall be made within a period of six years from the expiry of the year to which the tax related if the event that has occasioned such assessment has occurred on account of the failure of the dealer to disclose the turnover or any of the particulars correctly. Section 41 of the repealing Act in so far as it is relevant, reads as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the petitioner had acquired, as is argued, any right to be reassessed only within three years under rule 17 made under the repealed Act; in other words, it had acquired any right not to be reassessed after the expiry of the period prescribed in rule 17. It is necessary in order to determine this controversy to bear in mind the distinction between a substantive right and a rule of procedure prescribed for the enforcement of such a right. It is not possible to state with precision the exact nature of the distinction between a substantive law and the law of procedure. Still the distinction is marked and well-known. The law of procedure may be said to be that branch of the law which governs the process of litigation. It is the law of actions: all the residue is substantive law and relates not to the process of litigation, but to its purposes and subject-matter. In other words, the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of application of the one to the other. Likewise the distinction between a right to remedy and a mere procedure to be followed in prosecuting that remedy must also be kept in view. The law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as future transactions. This is based on the principle that "no person has a vested right, in any course of procedure. He has only a right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if an Act of Parliament alters that mode of procedure he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without or with only a defective remedy. If the time for pleading is shortened or new powers of amending were given, it would not be open to the parties to gainsay such a change, the only right thus interfered with being that of delaying or defeating justice, a right little worthy of respect," See Maxwell, page 216, See also Craies on Statute Law, page 400. In the Full Bench decision in Ganga Sahai v. Kishen Sahai(1884) I.L.R. 6 All. 262., the distinction between the substantive right and the relief on the one hand and the procedure to be adopted for getting relief on the other is succinctly brought out. In that case, the question aros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are the same under the Transfer of Property Act as they were before. A different procedure for enforcing such rights and obtaining such relief has, however, been adopted. The procedure for enforcing a right is no portion of that right, nor does it alter or affect it." In Ramakrishna Chetty v. Subbaraya Iyer(1915) I.L.R. 38 Mad. 101 at p. 103., it is held that the law of limitation applicable to a suit would be that in force at the time of its institution. The law of limitation is a branch of the law of procedure. This judgment has been approved in a later Full Bench decision in Rajah of Pittapur v. Venkata Subba Row(1916) I.L.R. 39 Mad. 645. In Ramanathan Chettiar v. Kandappa Goundan(1916) I.L.R. 39 Mad. 645., the same view that the law of limitation being procedural its provisions operate retrospectively has been affirmed. To the same effect is the Full Bench decision of the Allahabad High Court in Bankey Lal v. Babu A.I.R. 1953 All. 747. In Ramprasad v. VijaykumarA.I.R. 1967 S.C. 278 at p. 283., it is laid down that "the respondents had no vested right in the law of procedure for enforcement of the mortgage. They did not acquire under article 133 of the Hyderabad Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before dealing with this question we wish to say a few words about the well-known principle that subsequent changes in the period of limitation do not take away an immunity which has been reached under the law as it was previously. In this sense statutes of limitation have been picturesquely described as 'statutes of repose'. We were referred to many cases in which this general principle has been firmly established. We do not refer to these cases because in our opinion it is somewhat inapt to describe section 34 with its many amendments and validating sections as a 'section of repose'. Under that section there is no repose till the tax is paid or the tax cannot be collected. What the law does by prescribing certain periods of time for action is to create a bar against its own officers administering the law. It tries to trim between recovery of tax and the possibility of harassment to an innocent person and fixes a duration for action from these two points of views. These periods are occasionally readjusted to cover some cases which would otherwise be left out and hence these amendments. An assessment can be said to become final and conclusive if no action can touch it but where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, that is to say four years next succeeding the assessment year. The argument based on section 41 of the repealing Act that a right had been accrued which was saved was rejected. To the same effect is the judgment of Satyanarayana Raju and Venkatesam, JJ., in Ramakrishnaiah v. State of Andhra Pradesh[1962] 13 S.T.C. 914. In K. Kannaiah v. Deputy Commercial Tax Officer[1964] 15 S.T.C. 689. decided by Chandra Reddy, C.J., and Gopal Rao Ekbote, J., the contention was that it was beyond the competence of the department to make an assessment in respect of purchases made during the period of the operation of the repealed Act after it had ceased to be in force. Interpreting the words "'liability already incurred thereunder' appearing in the proviso to section 41 of the repealing Act, it was held that the declaration of liability by the statute and the quantification thereof are two different stages in the imposition of tax. But the declaration of liability implies the liability to pay. The specific purpose of the proviso to section 41 is to keep alive the rights acquired and the liabilities incurred under the repealed Act. " Jaganmohan Reddy, C.J., and Kumarayya, J., (as he then was) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 17 made under the repealed Act which then was prevalent the assessing authority could have reopened the assessment within three years next succeeding the assessment year. Before the said three years had expired, the repealing Act, however, came into force on 15th June, 1957, according to section 14(4) of which four years period for reopening the assessment was substituted. The said subsection was substituted by the Amending Act of 1961 which was given retrospective effect from 15th June, 1957, when the principal Act had come into force. Section 14(4-A) provided six years period for a reassessment in case of default on the part of the dealer. The effect of the amendment was that it would be deemed to have been in operation at all material times since the enactment of the principal Act, as the Legislature has given a clear retrospective operation to the amended section 14 as from the date on which the principal Act came into operation. ConsequentIy, the correctness of the notice of reassessment issued on 24th February, 1961, and the order of reassessment dated 31st March, 1963, will have to be adjudged in the light of the amended section 14(4-A) of the Act prescribing six years per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f procedure and as no party has a vested right to a particular proceedings or to a particular forum, article 225 applies to a suit even though the Constitution had not come into force when the suit was instituted." It is to be noted that article 225 of the Constitution removed the bar previously imposed on the exercise of original jurisdiction by the High Court. Characterising this as a procedural law which was in force at the time of the trial of the suit, it was held as above. It was then contended that section 14(4-A) is a part of the repealing Act. The contention was that it is only an amending Act which if alters the period prescribed for reassessment before the original period fixed had expired would make the altered limitation applicable. That result, it was contended, cannot be produced by a repealing Act in which any such provision is introduced and which has the effect of altering the period prescribed for reassessment. It was urged that there is a distinction between an amending Act and a repealing Act. We find it difficult to accept this contention. The terminology of repeals and amendments, it is true, is usually employed by the Legislature. The Legislatures labe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Andhra Pradesh[1969] 24 S.T.C. 304. , Suryaprakasa Rao v. StateI.L.R. 1970 A.P. 793., Gian Chand Mehta v. Commissioner of Sales Tax[1968] 22 S.T.C. 212., Ratanlal Hukumchand v. Additional Commissioner of Sales Tax[1967] 19 S.T.C. 92., Deputy Commissioner of Commercial Taxes v. Ramiah Chetty Co. [1968] 22 S.T.C. 217. and Arya Vaidya Pharmacy Ltd. v. State of Kerala[1968] 21 S.T.C. 357. Before we consider the decisions relied upon by the petitioner it is, we think, useful to analyse and appreciate the import of section 41 of the repealing Act. Section 41 repeals several Acts including the repealed Act. There is, however, a proviso in the nature of a saving clause attached to sub-section (1) of that section which effected the repeal of said Acts including the repealed Act. The proviso can conveniently be divided into three parts. The first part declares that such repeal shall not affect (a) the previous operation of the said Acts; (b) any right, title, obligation or liability already acquired, accrued or incurred thereunder. And subject thereto "........ secondly, it provides: Anything done or any action taken (including any appointment, notification, notice, order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch right. The procedure which includes the restriction put on the powers of the assessing authority to reopen the assessment is not a portion of the accrued or acquired right. Now it is true that it is not possible to assign a precise meaning to the terms "vested right" or "accrued right" for any attempt to define may result only in conflict. Broadly speaking, however, a right is said to be vested when the right enjoyed, present or prospective, has become the "property" of some particular person as a present interest independent of a contingency. A right which has become vested is not dependent upon the common law or the statute under which it was acquired for its assertion, but has an independent existence. Consequently, the repeal of the statute from which it originated does not efface a vested right but it remains enforceable without regard to the repeal. In order to become vested, the right must be a contractual right, a property right, or a right arising out of a statute which has become perfected to the degree that the continued existence of the statute cannot further enhance its acquisition. A vested right is usually protected from legislative interference. Since the vest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time-limit placed on the exercise of the power are not portions of the substantive right created by the statute. That this conclusion is right is seen from the various decisions which we have already considered. We find it almost impossible to agree with the contention that the phrase "subject thereto" makes the first part of the proviso independent of the two other parts of the proviso. Nor is it possible to agree with the second limb of the argument, that is, that the first part of the proviso being exclusive and independent carries with the right accrued the procedure together with the fetter of limitation placed on the exercise of the power to reopen. In regard to the second limb of the argument we have already held that the procedure prescribed to enforce a substantive right is not a part of the substantive right. What remains to be considered, therefore, is what the meaning of the term "subject thereto" is. This very phrase occurring in the repealed Act, fell for consideration of the Supreme Court in Balakrishna Chetty Sons v. State of Madras[1961] 12 S.T.C. 114 (S.C.); A.I.R. 1961 S.C. 1152. It is observed: "On a proper interpretation of the section it only means t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso says that the tax due at the commencement of the repealing Act may be recovered as if the tax has accrued under the repealing Act, it only means that the proviso after preserving the vested and subsisting rights and liabilities and validating the actions so far taken or things done applies the procedure of the new Act to complete the proceedings of not only the imposition of tax but also for its recovery. If it is once remembered that this is a case of repeal and re-enactment, then it will not be difficult to appreciate as to why section 41 provides this unusual form of repeal and saving clause. Ordinarily when an Act is repealed, without anything more, the provisions of section 8 of the Andhra Pradesh General Clauses Act would apply and in such a case it may perhaps be argued that the old rights have to be worked out according to the old law if they are saved. But it must be remembered that section 4 of the said Act says that Chapter 2 shall apply to all State Acts after the commencement of the State Act but enjoins that "unless a contrary intention appears in such Acts". It becomes therefore necessary to first examine whether the repealing Act expressed any contrary or diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1949. The repealing section 55 was almost on the same lines. The said Ordinance in its turn was repealed by Central Act 31 of 1950. Section 58 of the repealing provision thereof was as follows: "58. (1) The Administration of Evacuee Property Ordinance, 1949 (27 of 1949) is hereby repealed. (2) * * * (3) The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (27 of 1949) .....shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken." It was observed that this kind of provision in a repealing Act appeared rather unusual. It was held: "Therefore, where, as in this case, the repealing section, which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided "in such Act notwithstanding the repeal thereof". Section 11-A(1) had provided three years period for reassessment. It is in these circumstances stated it was held that although the assessment was made on 23rd May, 1959, shortly after the new Act came into force, since the assessment was made under the repealed Act, the proviso to section 19(1) of the new Act was applicable to the case of the respondent. As a result of that proviso the period of reassessment was as provided in section 11-A(1) of the repealed Act, i.e. 3 years and not five years, as is provided in the new Act. Consequently the notice dated 23rd October, 1962, was found to be beyond the period of limitation. In so far as this portion goes there can be little doubt that the conclusion is in accordance with section 19(1) in general and the proviso in particular. The Supreme Court, however, made the following observation in reaching the same conclusion on an alternative ground: "In the alternative this question may be examined in another aspect. Section 11-A(I) of the repealed Act itself created a right in favour of the respondent not to be assessed in respect of turnover that was under-assessed or had escaped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to it, the period prescribed under the old law for reassessment was made expressly applicable to the reassessment to be made under the old law and the new law was made applicable to cases of assessment or reassessment arising after the new Act came into force, it would not be difficult to correctly appreciate the meaning and implication of the above-said observation. The whole case really turned on the proviso and language of section 19 of the new Act which provision of law could not leave anyone in doubt. The observation that section 11-A(1) of the repealed Act itself created a right in favour of the respondent not to be assessed in respect of turnover that was under-assessed or had escaped assessment after the expiry of the period prescribed in that sub-section has therefore to be understood in the light of the position of law laid down in section 19 of the new Act, the proviso of which attracted the provisions of section 11-A(1) of the repealed Act prescribing three years' time for reassessment in case of assessment made under the old Act. The observation is obviously made in view of the fact that it is section 11-A(1) that was applicable to the case before their L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reassessment was issued, it was completely time-barred because the proviso to section 19(1) had made the period prescribed under section 11-A(1) applicable to that case. When the department's right to tax or the liability of the assessee to pay had ceased after three years, there was no occasion for the assessing authority to reassess under the law on the day when the notice was given. It is to this aspect of the case that reference is made in the said observation. The new Act had not revived such a lost right to be enforced under the new Act. In view of the clear language of the provisions referred to above, the Supreme Court has made the said observation. It would be incorrect to infer from such observation that the procedure prescribed to enforce accrued rights or incurred liabilities is considered as a portion of that right or liability and is thus preserved. Any such inference would be contrary to the earlier observation to which we have made reference and would be quite contrary to the principles of interpretation of statute and would go against the earlier decisions of the Supreme Court and of the High Courts to which we have already made reference. We are, therefore, clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clauses Act, which section is equal to section 8 of the Andhra Pradesh General Clauses Act, the liability which was saved could be enforced under the old law as if the repealing Act had not been passed. The contention that section 61 of the repealing Act expressed a different intention was repelled. The provision extracted in the judgment would indicate that the repealing and saving section is parallel only to the first and second parts of the proviso to section 41 of the repealing Act. It has no provision on the lines of the third part of the proviso and that of sub-section (2). The observation was made on the basis of agreement of parties that the opening portion of the proviso saves the rights and liabilities arising under the old Act and that "the remaining portion of the proviso is subject to the opening portion and therefore cannot control the saving effected thereby." On an interpretation of section 61, it was held that there is nothing which can be construed as manifesting a different intention and that is why the provisions of the General Clauses Act were considered to be applicable. Even otherwise, in that case the period of three years prescribed by the repealed Act had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case and the case before us. In S.L. Ramanatham v. Commissioner of Commercial Taxes[1969] 23 S.T.C. 249. , a Bench of this court was concerned with a case in which section 15 of the Hyderabad General Sales Tax Act fell for consideration. The facts were that the assessee submitted his return for the year ending 31st March, 1957, under the Hyderabad Act. On 15th June, 1957, the Andhra Pradesh General Sales Tax Act came into force repealing the Hyderabad Act. On 14th March, 1958, notice was issued and on 17th March, 1958, the assessment order was made applying the rates under the Hyderabad Act. On 10th September, 1963, the Commissioner of Commercial Taxes proposed to revise the assessment on certain grounds. The assessee filed a petition for the issue of a writ of prohibition contending that as the assessment was made under the new Act, the proposed revision was time-barred under section 20(3) of that Act which prescribed four years period, whereas under section 15 of the Hyderabad Act, no period of limitation was prescribed for exercising powers of revision. It is in those circumstances that it was held that the assessee cannot claim the benefits of the provisions of the repea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently this aspect was not considered and decided. It was not laid down that a person has a vested right in the procedure or limitation prescribed for enforcement of the substantive right. The distinction between the two was not canvassed before the Bench. The said decision is silent in this respect and it cannot therefore be urged that the said decision decides anything contrary to what we are laying down. In so far as the interpretation of section 41 is concerned, the said decision therefore or for that matter the earlier decision on which it placed reliance cannot be said to be an authority for the proposition that the right accrued includes the right to a particular procedure or a limitation prescribed for the purpose of enforcement of such right. In other words, the procedure or limitation is a portion of the main substantive right. The decision in Suryaprakasa Rao v. StateI.L.R. 1970 A.P. 793. does not help the petitioner. In fact to an extent it goes quite contrary to the petitioner's submission when it held that though in respect of recovery of tax, the procedure prescribed under the new Act is applicable under the second part of the first proviso to section 41. The main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his order dated 31st July, 1958. No assessment, however, was made for the assessment year 1956-57 with which alone we are now concerned. It appears that on the examination of the assessment record it was found that the Commercial Tax Inspector, Mypaud, recorded a statement of the dealer on 7th July, 1958, wherein he stated that he had carried on the business in 1956-57, but had not submitted any return, nor did he pay any tax. Enquiry by the said Inspector at Mypaud on 2nd June, 1957, revealed that some stock of paddy was sold to the assessee but the said transaction was not entered in the books of the assessee. On 8th November, 1957, the Special Assistant Commercial Tax Officer (Evasions), Nellore, inspected Sri Venkateswara Rice Mill, Mypaud. He recovered one pocket note-book and three papers relating to the transactions of the assessee. The assessee admitted in his statement recorded by the Inspector that he purchased 46 candies three tooms of paddy during the period between 1st August, 1956, and 31st March, 1957, but did not pay any tax on that transaction. On 26th July, 1958, the assessee in response to a notice of the Assistant Commercial Tax Officer, Nellore, filed three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 22(1) of the Andhra Pradesh General Sales Tax Act, 1957. The first contention of the learned Advocate for the petitioner is that the Act applicable to this case is the repealed Act, the Madras General Sales Tax Act, 1939, and not the prevailing Act. The argument is that since the assessment year is 1956-57 which ended on 31st March, 1957, and as the new Act came into force on 15th June, 1957, the assessment proceedings would be governed by the provisions of the old Act and not by the new Act. It was further argued that if the old Act applies, then under rule 17 of the then prevailing Rules the assessment should have been completed within three years next succeeding that to which the tax relates. Thus the assessment should have been completed before 31st March, 1960. As the assessment was not so completed, the assessee had acquired a right not to have his assessment made for the assessment year 1956-57. It is no doubt true that the assessment year being 1956-57 and as the new Act came into force on 15th June, 1957, if there is nothing contrary in the new Act, the assessment would be governed by the old Act. We have therefore to read section 41 of the repealing Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preserved as stated above and the pending matters are to be dealt with under the new Act, the result of which is that the old Act is repealed and is re-enacted with some modification but the matters saved as stated above have to be dealt with under the new Act, and to that extent the effect of the repeal is that the old Act has to be considered as if it never existed. What must follow is that the right of the department to assess and recover the tax from the assessee is preserved. Likewise the obligation or the liability of the assessee to pay the taxes for the year 1956-57 after the assessment is also preserved. But the assessment and recovery of the taxes shall have to be made only according to the provisions of the new Act and not that of the old Act. Section 41 being explicit we do not experience any difficulty in rejecting the contention that it is the repealed Act which applies to the present case and not the new Act. Consequently the argument that under rule 17 the assessment has to be completed within three years under the old Act cannot be accepted as correct. It is under section 14 of the new Act that the proceedings have been taken and in our view very correctly. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the department and the corresponding liability of the assessee were preserved. They had not been extinguished. They subsisted and therefore the assessment proceedings can be completed in accordance with the new provision within four years and not three years. In this connection, it must be borne in mind that no one has a vested right in the period of limitation or call it a fetter placed on the exercise of jurisdiction. It is a question which relates to procedure and does not affect the vested right. The general rule in regard to limitation is that in such cases the new Act applies, irrespective of the fact whether the new Act shortens or lengthens the period of limitation. Such a provision in terms does not take away any vested right and, therefore, it falls within the general principle that the presumption against a retrospective construction has no application to enactments which affect not only the procedure and practice of the court even where the alteration which the statute makes is disadvantageous to one of the parties. It is now fairly settled that no person has a vested right to any course of procedure or any period of limitation which is but a rule of procedure. "He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er before the Supreme Court was that for the sake of assessing the escaped turnover the provision applicable was section 19(1) and that the proviso to that section was not applicable. In the light of section 11-A, the Supreme Court observed that the original assessment was in respect of a period when the new Act had not come into force. The respondent had filed the return and even the notice was issued prior to the enforcement of the new Act. Although the actual order of assessment was made on 23rd May, 1959, shortly after the new Act came into force, in view of the proviso, the assessment would be deemed to have been made under the repealed Act and that being so, it was held that the proviso to section 19(1) of the new Act was applicable to the case. As a result of the proviso, the period of reassessment on the ground of under-assessment, escapement or wrong deduction in the case of the respondent had to be as provided in section 11-A(1) of the repealed Act so that the period was three years and not five years as laid down by section 19(1) of the new Act. It will thus be plain that the proviso had preserved the right to reassess only under the old Act and the new Act was not made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. 249. It was a case under the Hyderabad General Sales Tax Act, 1950. In that case, on 14th March, 1958, a notice was given to the assessee and on 17th March, 1958, an assessment order was made applying the rates under the Hyderabad General Sales Tax Act. This order was communicated to the assessee on 8th July, 1958. On 10th September, 1963, the Commissioner of Commercial Taxes proposed to revise the assessment on the ground that certain turnover was erroneously exempted from tax. That action was questioned by the assessee in an application under article 226 of the Constitution. It was in these circumstances and in the light of the provisions of the Act that it was held that the rights and liabilities as to assessment in accordance with the provisions of the Hyderabad General Sales Tax Act which had accrued or were incurred by the time the Andhra Pradesh General Sales Tax Act came into force remained unaffected by the proviso to section 41 of the Andhra Pradesh General Sales Tax Act, and as there was no period of limitation prescribed under the Hyderabad General Sales Tax Act for suo motu revision, the revision proceedings were within limitation. We fail to see how this goes contr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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