Hanuman Prasad Agarwalla vs Rabindralal Barua and Another

Sarjoo Prosad, C.J.—This application has been presented under Articles 22G and 227 of the Constitution, requesting us to direct the Opposite Party, the Commissioner of Taxes, Assam, to hear on merits a petition in revision filed by the petitioner u/s 31, Assam Sales Tax Act (Act 17 of 1947), which the Commissioner returned to the petitioner under Memo No. B-12/54/1989-90 dated 7-5-1954, intimating that no revision lay.

It is not necessary to reiterate all the facts set out in the petition filed by the assessee fit would be sufficient to indicate that the assessment order in this case was passed by the Superintendent of Taxes, Gauhati, on the 1-3-1954. On that date, the petitioner had two remedies open to him under the law against the said order of assessment.

It was open to him to prefer an appeal u/s 30 of the Sales Tax Act aforesaid, or to present an application in revision u/s 31 of the said Act. The petitioner applied for certified copies of the assessment order on 18-5-54 (18-3-54?) and on receipt of the same, he filed the application in revision on 26-4-54.

In the meantime, it appears that there was a change in the law by Assam Sales Tax (Amendment) Act of 1954 (Act 12 of 1954) which came into force on 7th April, 1954. Section 31 was altered, with the result that a revision, in the circumstances, did not lie at the instance of the assessee. The Commissioner, probably in view of this change in the law, refused to entertain the petition in revision and returned the same to the assessee.

The assessee contends--and, in our opinion, very rightly--that his remedies in the present case were governed not by the new Act which came into force after the assessment order was passed, but by the old Section 31 of the Act itself and therefore, it was incumbent upon the Commissioner of Taxes to hear and dispose of the'' petition in revision filed by him according to law, after considering the objections raised in that petition.

Reliance has been placed in this context up on a decision of the Supreme Court in Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Others, where it was pointed out that a right of appeal is not merely a matter of procedure, but a substantive right, and such a right becomes vested in a party when the proceedings are initiated and even before a decision has been given by the inferior Court.

Such a vested right could not be taken away except by express enactment or necessary intendment, and the intention to interfere with or to impair or imperil such a vested right could not be presumed unless such intention was clearly manifested by express words or necessary implication.

In the present case, we do not find anything in the amending Act of 1954 to indicate that, either expressly or by necessary intendment, this right, which the petitioner had under the old Act of 1947, within the meaning of Section 31 of that Act, had been taken away.

In the circumstances, it was the bounden duty of the Commissioner to consider the application in revision and to adjudicate upon the same. On behalf of the Commissioner, it has been Urged that the petitioner should not be entitled to any relief under Articles 226 and 227 of the Constitution because, by the amendment of 1954 of Section 32 of the Sales Tax Act, a right of reference to this Court has been provided.

We have already indicated that the assessment order in the present case is governed by the Act of 1947 independently of the changes in 1954, and on the terms of Section 32 of the Act, as it then stood, this Court had held that no reference lay, except within the meaning of that section. It was probably in view of that decision that the section was amended in 1954. In the circumstances, the petitioner had no remedy except to come to this Court and get a direction for the hearing of his revision application by the Commissioner.

The application is accordingly allowed and the Rule is made absolute. The Commissioner is directed to hear and dispose of the application in revision which has been presented to him u/s 31 of the Act of 1947 by the assessee. There will be no order for the costs of this application.

Deka, J.

I agree.