TMI Blog2004 (3) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... 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before the appeal filed by the petitioner could be entertained by the learned Appellate Authority, the HGST Act was repealed by virtue of section 61(1) of the Haryana Value Added Tax Act, 2003 (for short the HVAT Act ).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 the petitioner is required to be heard and decided under section 33 of the HVAT Act. No payment of tax can be insisted upon as a condition precedent for hearing of appeal but still the learned appellate authority vide order dated April 2, 2003 ordered the payment of tax assessed in six monthly instalments as a condition precedent for hearing of appeal. The said order of the learned appellate authority was challenged by the petitioner in appeal before the Haryana Tax Tribunal (for short the Tribunal ). The learned Tribunal dismissed the appeal holding that there is no implied repeal of provisions of section 39(5) of the HGST Act and the appeal is to be entertained only under the provisions of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 year, within one month of the expiry of the quarter. (2) Every dealer as mentioned in sub-rule (1) shall pay the full amount of tax due from him under the Act according to return in form ST-9 or ST-10 or both as the case may be before filing the return, in the manner prescribed in rule 30. (3) to (7) .. Section 39. Appeal.-(1) An appeal from every original order, including an order under section 40, passed under this Act or the rules made thereunder shall lie- (a) to (c) (2) to (4) .. (5) No appeal shall be entertained unless it is filed within sixty days from the date of the order appealed against and the appellate authority is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tribunal in the impugned order has relied upon Manphul Singh Sharma's case (1994) 5 JT 49 (SC) and India Tobacco Co. Ltd. v. Commercial Tax Officer, Bhavnipore [1975] 35 STC 95 (SC) to hold that the HGST Act (Haryana Act No. 20 of 1973) has not come to an end altogether with its repeal by the HVAT Act (Act No. 6 of 2003). Notwithstanding the repeal of the HGST Act, since the tax has been assessed under the HGST Act, the appeal is under the aforesaid Act alone. 6.. A comparison of the provisions of the HGST Act and the HVAT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive 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 well-settled that a right of appeal is a mere creature of statute and the Legislature which confers such a right can equally take it away or prescribe conditions for the exercise of this right which may be onerous or otherwise. Reference may in this connection be made to the division Bench ruling of this Court in Subhash Chander Co. v. State of Punjab [1979] 44 STC 331 where it was held that the right of appeal was neither a fundamental nor a constitutional right. There was no inherent claim or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;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 new Act will have to be looked into to determine whether and how for the new Act projects or keeps alive the old rights and liabilities. It was, thus, contended that by virtue of section 61(2) of the HVAT Act, all pending applications, appeals, revisions or other proceedings are not only required to be transferred to the corresponding authorities constituted under the HVAT Act but also required to be disposed of in accordance with the new HVAT Act. 13. In the case of Hardeodas Jagan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder; 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 on the intention of the Legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal. 15.. In Shiv Shakti Co-operative Housing Society's case (2003) 6 SCC 659, the honourable Supreme Court, while considering the scope of revisional jurisdiction in terms of section 115 of the Code of Civil Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the payment of tax or penalty or both as admitted to be due from assessee. However, the provisions of section 22 of the said Act were amended on November 25, 1949 when as a condition precedent to appeal, the appeal was required to be accompanied by satisfactory proof of payment of tax in respect of which the appeal had been preferred. 18.. Learned Advocate-General, Haryana, also relied upon the judgment of the Supreme Court in the case of Ramesh Singh v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was bound to admit the appeal whether appellant deposited the amount recoverable in execution of the decree or not. By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction has been put on the right of appeal, the admission of which is now hedged in with a condition. There can be no doubt that the right of appeal has been affected by the new provision and in the absence of an express enactment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 assessee files his return a lis may not immediately arise as under section 11(1) the authority may accept the return as correct and complete. But if the authority is not satisfied as to the correctness of the return and calls for evidence, surely a controversy arises involving a proposition by the assessee and an opposition by the State. It was held that the relevant date to determine the accrual of right of appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborate 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 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) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 25.. In the said judgment of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbhai 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 petition which was made in the High Court, and we cannot allow that petition to be amended. That petition does not mention the dates on which the return was filed, so that we could apply the dictum of this Court in Hoosein Kasam Dada's case [1953] 4 STC 114 (SC); [1953] SCR 987; AIR 1958 SC 221. Dr. Barlingay deduces the date of the filing of the return from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment, 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 rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication'. 28.. Such view of the Supreme Court has been referred to by the Constitution Bench with approval in the case of Shyam Sundar v. Ram Kumar AIR 2001 SC 2472. 29.. In Vinod Gurudas Raikar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53] 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 and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot be binding on the Courts below. Inevitably a choice, though a difficult one, has to be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 amount of tax, interest and penalty. Such obligation or liability confers a right in favour of the State to insist upon pre-deposit of tax, interest or penalty. From the judgments of the honourable Supreme Court in Hoosein Kasam Dada's cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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