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TMI Blog2003 (7) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Tax Officer's order of assessment related to the period fourth quarter ending March 31, 2000. 2.. Before entering into the facts it is pertinent to mention that proviso to sub-section (1) of section 79 which was there in the West Bengal Sales Tax Act, 1994 has been substituted by a new proviso by West Bengal Act of 2002 with effect from April 1, 2002. Initially the said proviso had been to the effect that no appeal should be entertained by the appellate authority unless he was satisfied that such amount of the tax, penalty or interest as the case may be, as the appellant may admit to be due from him has been paid. The new proviso that has been inserted by the amendment of the Act is to the effect that no appeal shall be entertained un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e "lis" has commenced already and the petitioner's right of appeal exists on and from that time and the said right is not to be governed by the amendment which came into effect on April 1, 2002. In this respect he relies on a decision of the honourable Supreme Court reported in [1953] 4 STC 114 in the matter of Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh. It has been decided there that right of appeal is not a matter of mere procedure but is a vested right which inhered in a party from the commencement of the action in the court of first instance and such right could not be taken away except by an express provision or by necessary implication. Right of appeal is a substantive right and it vests in a party when a "lis" commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of the "lis" had been wanting. Sri S.K. Chakraborty then refers to a case reported in [1962] 46 ITR 516 (Pat.) (Raja Bahadur Kamakhya Narayan Singh v. State of Bihar), [1968] 21 STC 476 (Mad.) (State of Madras v. Latheef Hameed &Co.), [1986] 62 STC 40 (Bom) (Siemens India Ltd. v. State of Maharashtra) and [1977] 39 STC 147 (All.) (Commissioner, Sales Tax v. Tika Ram Arhti) in support of the legal principle that the right of appeal vests in the assessee on the date of initiation of the proceeding for assessment and the right vests from that moment when the assessee files return leading to commencement of assessment proceeding. At least the assessment proceeding can be said to be initiated by issuing notice or by filing of return. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in [1970] 26 STC 10, which has been relied upon by the learned appellate officer having been rendered by a larger Bench and having been the latest decision, it overrides earlier ones. Therefore the decision of rejection of the appeal for non-deposit of the 20 per cent of the disputed tax amount by the petitioner as per the amended proviso cannot but be sustained. 6.. Perused the impugned order and the rulings cited and relied on by both sides. Admittedly the amended proviso has been made effective from April 1, 2002. The amendment is not retrospective in nature by express words or by necessary intendments. Admittedly the relevant assessment order was passed and the relevant appeal was filed after April 1, 2002. Admittedly the process of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reported in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114 is just on the points as are involved in the case before us. The subsequent decision of the Constitution Bench of Supreme Court reported in Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax [1961] 12 STC 219 did not question at all validity or not of the principle enunciated by the earlier Bench of Supreme Court reported in Hoosein Kasam Dada India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114. Rather the Constitution Bench failed to apply the principle enunciated in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114 due to lack of materials before it in that case. Moreover, in the decision of Tamil Nadu Taxation Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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