TMI Blog2014 (8) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Sub-section (2) of section 61 of the HVAT Act, 2003, contemplates transfer of pending proceedings pertaining to application, appeal, revision or other proceedings to the authorities constituted under the HVAT Act, 2003 and to be disposed of by the authorities so constituted. Such authorities constituted under the HVAT Act has been given deemed fiction to be in existence for the purpose of such application, appeal, revision or such other proceedings so as to be in force on the date such application, appeal, revision or other proceedings have 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amining the similar matters in Oswal Agro Mills Ltd.’s case (2004 (3) TMI 723 - PUNJAB AND HARYANA HIGH COURT), the return filed before amendment would be governed by unamended provisions. We find that the conditions of entertaining the appeal by Haryana Act No.10 of 2009 could not be made applicable in respect of assessment proceedings initiated prior to the amendment - Matter remanded back - Decided in favour of Assessee. - VATAP No. 154 of 2013(O&M) - - - Dated:- 30-5-2014 - Hemant Gupta And Fateh Deep Singh,JJ. For the Appellant : Mr. Alok Mittal, Advocate For the Respondent : Mr. Pardeep Singh Poonia, Additional Advocate General, Haryana ORDER Hemant Gupta, J. The present appeal under Section 36 of the Hary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y days from the date of the order appealed against. The appellate authority shall ensure before entertaining the appeal that the appellant has paid the amount of tax admitted to be due and interest thereon, and a bank guarantee or adequate security to the satisfaction of the assessing authority, in the manner, as may be prescribed, for the amount in dispute has also been furnished. Prior to the amendment, the unamended provisions of Section 33(5) of the Act were the following:- 33 (5) No appeal preferred by an assessee to an appellate authority shall be entertained unless it is filed within sixty days from the date of the order appealed against and the amount of tax and interest admitted by the appellant to be due as a result of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h retrospective effect but the condition of pre-deposit is a condition relating to procedure of filing of appeal, therefore, it will operate retrospectively i.e. even in respect of appeals relating to assessment prior to the date of amendment. Mr. Poonia referred to large number of judgments but such judgments have been considered by the Division Bench of this Court of which one of us (Hemant Gupta. J.) was a member. We find that in view of the judgments of this court relied upon by the learned counsel for the appellant, the appeal is bound to be allowed after the questions of law are answered it its favour. In Khazan Chand Nathi Ram s case (supra) the right of appeal was being examined after the repeal of Haryana General Sales Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim application. The question is when lis can be said to commence under the taxation laws. Section 25 of the HGST Act enjoins a duty upon an assessee to file quarterly return and deposit tax thereon. If such returns are accepted, there is no lis. Consequently, there would be no occasion for the parties to file an appeal. However, if such returns are not accepted, the cause of action which arise on the date when returns are required to be filed. The cause of action can be said to be arisen also when an assessee is called upon to furnish return on his failure to do so in terms of the provisions of the old Act. In fact, that is the relevant date as in Vitthalbhai Naranbhai Patel s case [1961] 12 STC 219 (SC); AIR 1967 SC 344. 37. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above discussion, we hold that right of the appeal is a vested right as it exists on the date of commencement of lis. The lis can be said to commence under the HGST Act on the date when return is filed or is required to be filed. Therefore, the provisions of section 39(5) of the HGST Act would continue to govern the right of appeal vested in the petitioner which is saved in terms of section 4 of the Punjab General Clauses Act (as applicable to State of Haryana). 9. The returns in all the writ petitions have been filed prior to the amendment of the Act on April 7, 2000. Since lis has commenced prior to the amendment of the Punjab General Sales Tax Act, 1948, the provisions as it existed prior to the amendment would be applicable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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