Surya Service Station and Others vs Union of India (UOI) and Others

A.P. Shah, C.J.—In all these cases, the appellants challenge the action of the appellate authority under the Pondicherry General Sales Tax

Act, 1967 (hereinafter for the sake of brevity referred to as ''the Act'') in not entertaining their appeals for nonpayment of 25% of the disputed tax

assessed by the assessing authority.

In these cases, we are concerned with the orders of assessment for the year 1996-97. Notices u/s 13 of the Act were issued and orders of

provisional assessment were also passed prior to the Amendment Act No. 4 of 2000 came into force on 1.6.2000. Prior to the amendment,

against the order passed by the assessing officer, an appeal would lie u/s 34 of the Act before the Appellate Assistant Commissioner. By the

Amendment Act No. 4 of 2000, the following words were added to the second proviso to Section 34 of the Act:

and 25% of the difference of tax admitted by the appellant

Similarly, in Section 40, Sub-section (1), after proviso, the following provision was inserted:

provided further that no appeal filed by any person objecting to an order passed under Sub-section (3) of Section 34 shall be entertained unless it

is accompanied by satisfactory proof of the payment of tax as ordered by the Appellate Assistant Commissioner.

The short question to be decided is whether such an amendment can be made applicable to the appellants'' case and thereby the appellate

authority was justified in returning the appeals filed by the appellants for non-compliance of the condition of pre-deposit of 25% of the difference of

tax.

It is now well-settled that right of appeal is a substantive right and such right exists as on and from the date the lis commences even though the

litigant may exercises this right later on when the adverse order is pronounced against him. See Garikapatti Veeraya Vs. N. Subbiah Choudhury, ;

Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Ors. 1953 (4) STC 114 SC ; and Vitthalbhai Naranbhai Patel Vs.

Commissioner of Sales Tax, M.P., Nagpur, .

An identical issue u/s 31 of the Tamil Nadu General Sales Tax Act, 1959 came up for our consideration in Deputy Commercial Tax Officer,

Tirupur and Ors. v. Cameo Exports W.A. No. 3093 of 2003, etc. and this Court, by order of even date, held as under:

In view of the foregoing discussion, we hold that the crucial date on which the right of the assesses to prefer an appeal u/s 31 or Section 36 of the

Act is the date on which the returns is filed under the Act. In all these appeals, returns were filed long prior to the date when the provisions of

Section 31 of the Act was amended by virtue of Act 14 of 1999. Further more, it is not disputed by the parties that the aforesaid amendments to

the Act have not been given retrospective effect as and from an anterior date and those amendments are prospective. Therefore, the appeals are

liable to be entertained without insisting of pie-deposit of 25% of the disputed tax as per the amended provisions of the Act.

In the present case also, notices u/s 13 of the Act were issued long prior to the coming into force of the amended Act. In view of the fact that

the lis had already commenced by issue of notice by the authorities against the appellants, the appellate authority is not correct in not entertaining

the appeals filed by the appellants u/s 34 of the Act. We, therefore, allow these appeals and direct the appellate authority to entertain the appeals

preferred by the appellants without insisting for the pre-deposit of 25% of the difference of tax assessed by the assessing authority as per the

amended provisions of Section 34 of the Act vide Amendment Act No. 4 of 2000. Connected W.A.M.P. Nos. 17037 to 17042 of 2001 are

closed.