TMI Blog2022 (3) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... the same becomes due and payable - second proviso to Section 84(1) infringes Article 14 of the Constitution of India - right of appeal conferred under Section 84(1) can be construed as an absolute right - effect of substitution of second proviso to Section 84(1) of the West Bengal Finance Act, 2015 - alleged hardship of a dealer would be a relevant consideration while considering the vires of a statutory provision or not. HELD THAT:- Section 84(1) of the Act provides for an appellate remedy to an aggrieved dealer. The said provision is a substantive law, which confers a right on an aggrieved dealer. The provisos contained in sub-section (1) of Section 84 regulate the procedure for exercising such right of appeal. The first proviso to Section 84(1) deals with procedural aspects in respect of an appeal in which the dispute is in excess of rupees twenty lakh and the authority, which will be disposing of such appeal as may be constituted by the Commissioner. The second proviso deals with the procedure to be adopted by the aggrieved dealer in cases where appeals are preferred on or after the 1st day of April, 2015 - if the right of appeal as provided under Section 84(1) could be ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 022 - HON BLE MR. JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE HIRANMAY BHATTACHARYYA MAT 783 OF 2017 WITH MAT 784 OF 2017 MAT 786 OF 2017, WITH M.A.T. 792 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 5148 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 5151 OF 2017) M.A.T. 982 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 5956 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 5961 OF 2017) WITH M.A.T. 985 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 5958 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 5963 OF 2017), WITH M.A.T. 986 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 5959 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 5964 OF 2017) M.A.T. 1370 OF 2017 WITH M.A.T. 1619 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 9655 OF 2017) WITH M.A.T. 1664 OF 2017 I.A. CAN 1 OF 2018 (OLD NO. C.A.N. 720 OF 2018) M.A.T. 1751 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 9909 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 9913 OF 2017) WITH M.A.T. 1752 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 9912 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 9914 OF 2017) M.A.T 1782 OF 2017 WITH I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 10240 OF 2017) WITH M.A.T. 1786 OF 2017 M.A.T. 1787 OF 2017 I.A. CAN 1 OF 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pharmaceuticals Anr. Sanjay Rampuria, Ape Power (Private) Limited Muridhar Ratanlal Exports Limited, Shree Vaishanavi Ispat Limited, Mr. Navin saraf North Brook Jute Company, Limited Supreme Industries Limited, DVC Emta Coal Mines Limited, Anindya Ghosh, Precision Engineers Fabricators Private Limited, Shambhu Prasad Agarwal Paulsons Derma Private Limited, Power Mech. Projects Limited Harsh Polyfabric Private Limited, Dipanjan Mitra Anr. Island Trading Company Private Limited VERSUS The Senior Joint Commissioner, Sales Tax, Central Audit Unit Ors. The Joint Commissioner, Commercial Taxes, Burrabazar Circle Ors. Deputy Commissioner Commercial Taxes, Midnapore Charge Ors., Sales Tax Officer, Park Street Charge Ors. Joint Commissioner, Sales Tax, Beadon Street Charge Ors. Sales Tax Officer Central Audit Unit-I Ors. State Of West Bengal Ors. Appearance:- Mr. Boudhayan Bhattacharyya, Mr. Anil Kumar Dubey, Mr. Rajarshi Chatterjee, Ms. Sretapa Sinha........For the Appellants (in MAT 792/2017; MAT 982/2017; MAT 985/2017; MAT 986/2017; MAT 1619/2017; MAT 1751/2017; MAT 1752/2017; MAT 791/2017; MAT 373/2018; MAT 374/2018; FMA 733 OF 2018) Mr. Anil Dugar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision is far from being reasonable and realistic. 2.2. Elaborating his submission, on the first contention, it is submitted that the word used in Section 84 is payment and not deposit . The impugned proviso to Section 84 (1) nowhere specifically mentions that the amount has to be returned to the dealer and even Section 62 of the Act which deals with refunds does not specifically mention that the prepayment made in terms of the impugned provision has to be returned. Reference was made to the P. Ramanatha, Advance Law Lexicon to state that the payment is defined to be act of paying or that which is paid; discharge of a debt, obligations or duty; satisfaction of claim; recompense; the fulfillment of a promise or the performance of an agreement; the discharge in money of a sum due. Further it is submitted that the payment has no narrow technical legal meaning restricted to payment of money, as it signifies satisfaction of a claim. With regard to the meaning of the word deposit , it is submitted that the Advance Law Lexicon explains deposit to mean that there must be a liability to return it to the party by whom it is made, it is not a sum lent but a sum deposited. Relying upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, on the part of the state legislature to make it retrospective. It is submitted that in all cases where the appeals were filed on or after 01st day of April, 2015, the original lis arose much before the said date, hence the substantive and vested right to appeal cannot be taken away and/or prejudicially modified under the facts and circumstances. 2.5. The fourth contention is that the provision is ultravires being hit by the general principles of arbitrariness and unreasonableness as contained under Article 14 of the Constitution of India, as the impugned provision fails to distinguish between the quantum of demands and all dealers are compelled to pay 15 % prepayment in order to file an appeal. Further the impugned proviso does not take into account the different kinds of assessments such an ex-parte assessment, best judgment assessment and assessments where dealer had reasonable opportunity of being heard and therefore the provision is arbitrary and unreasonable. To support such contention, reliance was placed on the decision of the Hon ble Supreme Court in Shayara Bano Versus Union of India Ors., (2017) 9 SCC 1. It is further submitted that the Learned Writ Court wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the other dealers submitted that the right of appeal is a vested and substantive right and that cannot be taken away by virtue of the impugned proviso. In support of such contention, reliance was placed on the decision of the Hon ble Supreme Court in M.P. Steel Corporation Versus Commissioner of Central Excise MANU/SC/0484/2015. It is further submitted that right of appeal accrues on the date of commencement of the lis which commences from the date when return is filed or the date by which return is required to be filed. In support of such contention, reliance was placed on the decision in Khazan Chand Nathi Ram Versus State of Haryana Others (2004) 136 STC 261 (P H) and Deputy Commercial Tax Officer, Tribunal Central 1 Assessment Circle, Tirupur and Others Versus Cameo Exports and Others (2006) 147 STC 218 (Mad). Further it is submitted that the impugned proviso is detriment to the interest of the dealer who prefers an appeal against the order of assessment and in such circumstances giving retrospective operation to the impugned proviso will affect, alter and destroy the existing right of the dealer as it creates a new liability or obligation on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. Reliance was also placed on the decision in the case of Royal Insulation Private Limited Versus Commercial Tax Officer, Manali Assessment Circle, Chennai (2006) 147 STC 246 (Mad) wherein the Division Bench of the High Court of Madras dealing with provisions insisting for prepayment for entertainment of appeal but not empowering the Appellate Authority to give any relief was deprecated and the State Government was advised to forthwith amend the provision to permit waiver or stay by the Appellate Authority of the pre-deposit amount. Therefore, it is submitted that taking clue from the decision in Shyam Kishore and Royal Insulation, the impugned proviso requires to be amended. The Learned Advocate placed reliance on the decision of this Court in Shyam Sel and Power Limited Versus Union of India MANU/WB/1394/2014 (Cal), which is a case which deals with Section 35 F of the Central Excise Act 1944, a provision enabling the appellate authority to dispense with the deposit. It is submitted that in the said decision the Hon ble Supreme Court has enlisted the circumstances where under it would be necessary to dispense with such requirements. It is further submitted that in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that the substituted proviso be deemed to be a provision under the Act for all purposes ever since the West Bengal Value Added Tax Act, 2003 came into effect. The substituted proviso also fixes a date from which the appeals will be entertained subject to fulfillment of conditions in clause (a) and (b) contained therein. Emphasis is laid on the word entertained and what would mean by entertainment of an appeal, Rule 141 of the WBVAT Rules 2005 has to be referred to. Further more in terms of Rule 141, prayer for stay can also be made. References were also made to be Rules 80 and 83 of the 2005 Rules. Reliance was placed on decision of the Hon ble Supreme Court in State of Madhya Pradesh Versus Rakesh Kohli Anothers (2012) 6 SCC 312, for the proposition as to what are the principles the Court will have to take into consideration while dealing with constitutional validity of a taxation law. For the same proposition, reliance was placed on the decision of the Hon ble Supreme Court in Government of Andhra Pradesh and Others Versus P Laxmi Devi (2008) 4 SCC 720. To explain the effect of an amendment to a statute by substitution, reliance was placed on the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited Versus State of UP and others (2021) SCC Online SC 1044, wherein the Hon ble Supreme Court took into consideration similar provision insisting upon a pre-deposit and held the same to be valid as it will avoid unscrupulous and uncalled for litigation at the appellate stage. It is submitted that when a statute confers a right of appeal, while granting a right, the legislature can impose conditions for exercise of such a right, so long as the conditions are not onerous or unreasonable rendering the right almost illusory. It is submitted that the amended proviso, provides for producing proof of payment of 15 % of the disputed amount which cannot be said to be unreasonable or onerous. In any, event hardships cannot be a ground to test the constitutional validity of a statutory provision. Further it is submitted that several provisions of the Act and the rules were amended by the Finance Act 2015 and taking into consideration that the amended proviso should not impact the pending appeals, the legislature in its wisdom had fixed the date as 01st day of April, 2015 and the wisdom of the legislature will not be questioned by this court. Reliance was placed on the decision in Harin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit. Equally Rule 141 deals with stay of disputed amount of net tax and other circumstances and these rules cannot save the impugned proviso. It is submitted that decision in Har Devi Asnani referred to by the Learned Government Pleader is a case where payment or deposit was not the issue. Further in the decision in Newtech Promoters relied on by the Learned Government Pleader, it was admitted case of pre-deposit and therefore distinguishable. It is further submitted that the decision in NITDIP Textile Processors cannot be applied to the case on hand as the appellant s case is that there is no qualification at all. On the same ground, the decision in Arun Kumar is also stated to be distinguishable. The Learned Advocate seeks to distinguish the decision in the case of D.V.C. Bukaru Cooperative Stores and Prakrith Builders by contending that those were cases in which the issue was not whether the amount to be paid is a pre-deposit or a payment . Further the Learned Advocate has drawn our attention to the enactments in other states where the powers to relax and waive have been provided. 9. Mr. Khan, Learned Advocate appearing for the appellants, in reply would reiterate his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional Commissioner or any person appointed under sub-section (1) of Section 6 to assist the commissioner as may be prescribed to exercise the power under the section against a provisional assessment or any other assessment, within forty-five days or such further period as may be allowed by the said authority for cause shown to his satisfaction from the receipt of a notice of demand in respect thereof: Provided that where the total amount of tax, interest, late fee or penalty in dispute in an appeal is in excess of rupees twenty lakh such appeal may lie before an appellate forum as may be constituted by the Commissioner, consisting of one or more special Commissioner or Additional Commissioner or any person appointed under sub-section (1) of Section 6 to assist the Commissioner, and the appellate forum shall act as the appellate authority in disposing of such appeal under this section: Provided further that no appeal for any period submitted on or after the 1st day of April, 2015, shall be entertained by the said authority unless it is satisfied that the applicant has produced the documents relating to proof of payment of- (a) full amount of tax, interest, penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 states that notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, the amendment made in the Principal Act by Clause (a) of sub-section (2) of Section 2 shall be deemed to have been made with effect from 2nd day of March, 2015 and accordingly, anything done or any action taken or purported to have been taken or done under the Principal Act on or after the said date shall, notwithstanding anything contrary contained in the judgment, decree or order of any court, Tribunal or other authority be deemed to be and to have always been for all purposes, as validly and effectively taken or done as if the said amendment had been in force at all material time. 19. Rule 80 of the West Bengal Value Added Tax Rules, 2005 (hereinafter referred to as the Rules for brevity) deals with manner of refund in consequence of order of appeal, revision, etc. It states that where any amount payable by a dealer in respect of any period on account of tax assessed, penalty imposed or late fee and interest determined is reduced in consequence of any order passed on reassessment, redetermination, appeal, revision or review, as the case may be, and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fee or penalty shall be subject to such payment. 26. As mentioned above, the appellants have questioned the vires of the second proviso to Section 84(1) of the Act and were unsuccessful in their attempt leading to filing of these appeals. 27. In the preceding paragraph, we have noted the submission made by the learned Advocates for the appellants as well as the learned Government Pleader. 28. The following issues arise for consideration in these appeals:- (i) Whether insistence of protection of payment of 15% of the disputed tax as stipulated in the second proviso to Section 84(1) of the Act infringes/abrogates the vested right of appeal under Section 84(1), when such right accrues to a dealer on the date of filing the return; whether it would amount to compulsory extraction of tax before the same becomes due and payable? (ii) Whether the second proviso to Section 84(1) infringes Article 14 of the Constitution of India, as it ignores the different categories and assessments and assessees? (iii) Whether the right of appeal conferred under Section 84(1) can be construed as an absolute right prohibiting the said legislature from imposing conditions for enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs are first initiated and such vested right cannot be taken away, except by express enactment or necessary intendment. Further, it is contended that the pre-existing right of appeal should continue to exist and the proviso as it stood prior to its amendment of the Finance Act, 2015 would cover the exercise and enforcement of that right of appeal and amended proviso cannot prevent exercising such a right. 33. The Hon'ble Supreme Court in the said decision was testing the correctness to the amended proviso to sub-section (1) of Section 22 of the Central Provinces and Berar Sales Tax Act, 1947 and it was held that the amended proviso was prospective and the old law which continued to exist would apply and that the appeal should not have been rejected on the ground that it was not accompanied by satisfactory proof of payment of the assessed tax as in the said case, the appellant did not admit that any amount was due by it and therefore, it was held that under the section as it stood previously (before amendment) the appellant therein was entitled to file its appeal without depositing any sum of money. To the same effect, reliance was placed on the decision of the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 84 is the substantive law providing for a right of appeal to an aggrieved dealer and the provisos under the said provision are procedural and the State legislature is competent to impose conditions for entertaining an appeal and therefore, the impugned proviso does not in any manner abrogate the right of appeal provided under Section 84(1). Thus, we are to consider as to the distinction between a substantive law and the procedural law. 40. In Hitendra Vishnu Thakur Versus State of Maharashtra (1994) 4 SCC 602, the Hon'ble Supreme Court, while considering what are substantive and procedural laws, had laid down the scope of amending Act which was given retrospective effect. It was held that a statute which affects substantive rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment. 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. It was further held that law relating to forum and limitation is procedural in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the authority, which will be disposing of such appeal as may be constituted by the Commissioner. The second proviso deals with the procedure to be adopted by the aggrieved dealer in cases where appeals are preferred on or after the 1st day of April, 2015. The second proviso is qualified by two conditions. The first of which being producing proof of payment of the full amount of tax, interest, penalty or late fee as the aggrieved dealer may admit to be due from him. Clause (b) requires the aggrieved dealer to produce proof of payment of 15% of the amount of tax in dispute in such appeal. The third proviso provides for the contingency when an appeal can be entertained, when the tax admitted to be due from a dealer has not been paid and the same stands deferred under Section 116 of the Act. Therefore, if the provisos to Section 84(1) are read together, will clearly demonstrate that the provisos enumerate the procedure to be followed by an aggrieved dealer while exercising his substantive right of appeal under Section 84(1) of the Act. In other words, if the right of appeal as provided under Section 84(1) could be entertained upon compliance of certain conditions by the aggrieved de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Bearing in mind the above legal principles in mind we test the correctness of the contentions of the appellants that the impugned proviso cannot affect the vested right of the appellant which accrued in their favour prior to the amendment. Similar arguments were placed in Hindustan Petroleum corporation Ltd. (Supra), which were rejected holding thus: But prior to that, it would be necessary to understand the scope of a proviso vis-vis the main provision in a section in the context of the decisions of the Hon ble Supreme Court and in light of the principles of interpretation of proviso. a) The normal function of a proviso is to except something out the enactment or to qualify something enacted therein which, but for the proviso, would be within the purview of the enactment. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive enactment is worded in the form of a proviso, it would be an independent legislative provision concerning different set of circumstances than what is worded before or what is stated before. Sometimes, a proviso is to make a distinction of special cases from the general enactment and to provide it specially. d) At this stage, this construction or interpretation of a proviso could be considered:- a) In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai [MANU/SC/0328/1965: AIR 1966 SC 459], while dealing with the Bombay Tenancy and Agricultural Lands Act, 1948, the Hon ble Supreme Court held, that a proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso, would be within that clause. b) In Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories [MANU/SC/0194/1964 : AIR 1965 SC 980], while considering proviso to Section 6 of Trade Marks Act, 1940, it was observed that it would not be a reasonable construction for any statute, if a proviso which in terms purports to create an exception and seeks to confer certain special rights on a particular class of cases included in it sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enactment workable; (3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. f) The approach to the construction and interpretation of a proviso are enunciated in the following cases:- a) In M. Pentiah others v. Muddala Veeramallapa others (MANU/SC/0263/1960 : AIR 1961 SC 1107), it was observed that while interpreting a section or a proviso, as in the instant case, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. b) In Superintendent Remembrancer of Legal Affairs to Govt. of West Bengal v. Abani Maity (MANU/SC/0525/1979 : AIR 1979 SC 1029), the Apex Court observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed person is not entitled to file an appeal. Further, it was held that the legislature while granting the right of appeal can impose conditions for the exercise of such right. It was permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid and such condition merely regulating the exercise of right of an appeal was that the same is not to be abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It was further held that it was open to the legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation. 48. In Seth Nand Law Versus State of Haryana (1980) Supplementary SCC 574, the Constitution Bench of the Hon'ble Supreme Court held that right of an appeal is a creature of a statute and there is no reason why the legislature while grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act cannot be sought to be interpreted by referring to the meaning of the words payment and deposit as defined in the Advance Law Lexicon but are required to be considered by reading the entire provision as a whole along with the scheme of the Act and not to read the two words viz., payment and deposit in isolation. Therefore, the reference to the meaning of these words as spelt out in the Law Lexicon cannot in any manner advance the case of the appellants. 53. The decision in the case of Bazpur Sugar Factory was pressed into service to explain as to what would be meant by deposit, which has essence of a deposit is that there must be a liability to return it to the party by whom or on whose behalf it is made on the fulfilment of certain conditions. Firstly, the decision in the said case arose out of a proceedings under the Indian Cooperative Societies Act, 1921 and the question framed for determination was whether on the facts and circumstances, the Income Tax Appellate Tribunal was right in holding that the amount of ₹ 5,15,863/- was not a revenue receipt liable to tax. Thus, considering the facts of the case of the assessee therein, with regard to the monies desc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be followed by an aggrieved dealer for preferring an appeal under Section 84(1) cannot be construed to be a compulsory extraction in the nature of a tax, but it is a condition imposed by the legislature, a condition precedent for exercising the statutory right of appeal. 56. Thus, as pointed out earlier in Hoosein Kasam Dada the validity of Section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947 was challenged in which there was no date mentioned, as to which of those appeals will be entertained unless the amount of tax and penalty admitted by the assessee has been paid, whereas in the second proviso to Section 84(1), the date has been clearly mentioned as appeals to be submitted on or after the 1st day of April, 2015 such procedure is required to be adopted, making it clear that the second proviso will not affect pending appeals. 57. In fact in Hoosein Kasam Dada, the Hon'ble Supreme Court held that though the right of appeal is a substantive right/vested right, such right cannot be taken away, except by express enactment or necessary intendment. Even assuming for arguments sake, the second proviso to Section 84(1) is to be treated as a substantive provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate for the appellants to draw inspiration from the enactment of the other State or read down the 2nd proviso to Section 84(1) of the Act does not arise. The principle of reading down can be applied if a provision is not clear or does not provide for certain contingencies and if a statute is clear more particularly a fiscal statute, the concept of reading down would be alien especially in the facts and circumstances of the cases before us. We also note that similar provision under the Karnataka Sales Tax Act, 1957 was upheld in Prakrith Builders Pvt. Ltd. Versus State of Karnataka (2009) 19 VST 589. Similar provision in Section 77(4) of the Orissa Value Added Tax Tax, 2004 was upheld in Jindal Stainless Steel Versus State of Orissa (2012) 54 VST 1. 61. In the light of the above discussions, we hold that the second proviso to Section 84(1) of the Act is the procedure prescribed for preferring an appeal under Section 84(1) of the Act by an aggrieved dealer and condition imposed therein is not a compulsory extraction of tax and the State legislature was well within its jurisdiction to impose conditions for preferring appeals and on account of such condition being imposed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as equals. To explain the concept of equality, reference was made to Rig Veda. Reliance was also placed on the decisions in Benette and Colomen Khem Chand. While testing the constitutional validity of a statute on the anvil of Article 14, it has to be seen as to whether there is discrimination, whether a person or class of persons have been singled out from others similarly situated. It is equally important to note that Article 14 does not prohibit classification as long as classification is based on legal and relevant circumstances. 64. Firstly, we need to consider as to whether the argument of the learned Advocates for the appellants stating that different types of assessments and different types of dealers have been treated alike. The argument deserves to be outrightly rejected for the simple reason that whatever may be the type of assessment, such as a best judgment assessment, an assessment after opportunity to the dealer etc., is an assessment under the provisions of the Act. Similarly, an assessee can be of different categories and a casual dealer can also be brought within the provisions of the Act. Therefore, the appellants' attempt to show discrimination is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e types of assessments. In terms of provisions of the WBBAT, an assessee has been defined to also include a transporter or a casual trader. While testing the vires of the proviso to Section 84(1), we are required to examine as to whether the substantive law, namely, Section 84(1) seeks to draw any distinction as regards the varied categories of dealers/ assessees or assessments. On a plain reading of Section 84(1), it shows that there is no distinction among the categories of dealers or the types of assessments. The provision deals with appeal against provisional or other assessments. Other assessments would include all categories of assessments as were enumerated by the learned Advocates for the appellant. Thus, in the absence of any classification or sub-classification of the category of dealers or types of assessments, the provision cannot be stated to be discriminatory. Furthermore, the provision states that any casual dealer or dealer may in the prescribed manner appeal to the authority specified therein. The term dealer has been defined under Act and undoubtedly, all the appellants before us will fall within the said definition. Assuming one of them is a casual dealer, he a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, the question before the Court was as to when an appeal will be heard or determined. These words were interpreted by the Court by holding that in this statutory context of the said provision it is plausible to say that an appeal (Section 169 of the said Act) can be admitted or entertained, but only cannot be heard or disposed of without pre-deposit of the disputed tax. 71. In our considered view, the decision in Shyam Kishore cannot be applied to the facts and circumstances of the cases on hand. As noted earlier, Section 84(1) of the Act is the substantive right of the assessee to file an appeal. The manner, in which the appeal will be entertained, is stipulated in the proviso under Section 84(1) of the Act. There is marked difference between the words and phrases used in the Delhi Municipal Corporation Act and that of the WBVAT. Hence, the decision cannot be applied to the facts of this case. Equally this Court cannot enact a law and the duty of the Court is to interpret the law and as we find there is nothing arbitrary or unreasonable about the provisos to Section 84(1) the question of making a recommendation to the legislature for amending the Act does not arise. Equally t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer seeking enhancement of the claim for refund. It may be true that there might have been some stray instances where the Appellate Authority or the office of the Appellate Authority might have mechanically refused to entertain an appeal regardless of the fact that the appeal does not dispute any quantum of tax but disputes the computation done by the revenue with regard to entitlement for refund. However, we find such orders were reversed by the Tribunal, and rightly so. In any event, these stray instances cannot be taken as an anvil to test the vires of a statute. 74. Reliance was placed on the decision in M.P. Steel Corporation to buttress the submission that the substantive right of filing an appeal cannot be taken away by virtue of the second proviso. This argument was further expanded by placing reliance on the decision of Khazan Chand Nathi Ram and the decision in Cameo Exports. In the earlier part of this judgment, we have conclusively held that the second proviso to Section 84(1) being a procedural law does not in any manner impinge on the substantive right of appeal conferred by the aggrieved dealer under Section 84(1) of the Act. Therefore, the decision does not ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention is manifest in the provision itself. Therefore, the decision in Jayam and Company cannot be made applicable to the facts and circumstances of the cases on hand. The decision in Technimont Private Limited was referred to to support the contention that in case of genuine and extreme hardship writ petition could be an appropriate remedy. This issue does not arise for consideration in the cases on hand as we are to decide the validity of the impugned provision. In any event, if a dealer is of the view that he is entitled to move the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India without filing an appeal before the Appellate Authority, it is for such dealer to convince the Court as to why he is justified in not availing the alternate remedy and as to why he has approached the High Court under Article 226 of the Constitution. It is for the Court to then take a decision as to whether the writ petition would be an appropriate remedy though there exists a statutory appellate remedy. 76. It was contended that the learned Writ Court while dismissing the writ petitions had placed heavy reliance on the decision in Rakesh Kohli, which decision h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of scheme of the Act makes it clear that the limited rights and duties are provided on the shoulders of the allottees under Section 19 of the Act at a given time, several onerous duties and obligations have been imposed on the promoters i.e. registration, duties of promoters, obligations of promoters, adherence to sanctioned plans, insurance of real estate, payment of penalty, interest and compensation, etc. under Chapters III and VII of the Act 2016. This classification between the rights, duties and obligations cast upon the allotees/home buyers and the promoters and is in furtherance of the object and purpose of the Act to protect the interest of the consumers vis-a-viz, the promoters in the real estate sector. The promoters and allotees are distinctly identifiable, separate class of persons having been differently and separately dealt with under the various provisions of the Act. Therefore, the question of discrimination in the first place does not arise which has been alleged as they fall under distinct and different categories/ classes. The legislature in its wisdom has intended to ensure that the money which has been computed by the authority at least must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie or it may lie on fulfillment of precondition, if any, against the order passed by the Authority in question. In our considered view, the obligation cast upon the promoter of pre-deposit under Section 43(5) of the Act, being a class in itself, and the promoters who are in receipt of money which is being claimed by the home buyers/ allottees for refund and determined in the first place by the competent authority, if legislature in its wisdom intended to ensure that money once determined by the authority be saved if appeal is to be preferred at the instance of the promoter after due compliance of pre-deposit as envisaged under Section 43(5) of the Act, in no circumstance can be said to be onerous as prayed for or in violation of Articles 14 or 19(1)(g) of the Constitution of India. 83. The upshot of the discussion is that:- 1. Insisting the dealer to produce the proof of payment of 15% of the disputed tax in terms of the second proviso to Section 84(1) does not infringe/ abrogate the vested right of appeal under Section 84(1) of the Act and such proviso does not amount to compulsory extraction of tax as it is a procedural law, prescribing a procedure for the purpose of en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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