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1966 DIGILAW 316 (KER)

VELUKUTTY v. SALES TAX APPELLATE TRIBUNAL

1966-11-15

M.S.MENON, S.VELU PILLAI

body1966
Judgment :- 1. The petitioner preferred an appeal under S.14 of the General Sales tax Act. 1125, Act XI of 1125, against an assessment made under S.12(2). That Act, which may be referred to hereafter as the 1125 Act, was repealed with effect from the 1st April, 1963, by the Kerala General Sales tax Act, 1963, Act 15 of 1963, which may be referred to hereafter as the 1963 Act, The appeal was decided on the 16th April, 1964. The 2nd respondent in this petition, the State Government, appealed against the said decision, under S.39 of the 1963 Act, to the Appellant Tribunal, which by its order Ext. P-3 dated the 5th February, 1965, overruled the preliminary objection, that the State Government had no right of appeal against the decision of the appellate authority. This petition is to quash Ext. P-3 2. S.14 of the 1125 Act, which conferred the right of appeal on an assessee against his assessment, provided by sub section (4) thereof, that "every order passed in appeal under this section shall, subject to the provisions of S.15 to 15-C be final". S.15-A, which is pertinent, provided by sub-section (1), that "any assessee objecting to an order relating to assessment passed (i) by the Appellate Authority under S.14, xxx xxx xxx xxx may appeal to the Appellate Tribunal ", omitting the parts of the sub-section which are not relevant. There is no provision in the 1963 Act which corresponds to S.14 (4) of the 1125 Act. Moreover, S.39 of the 1963 Act, as distinguished from S.15-A of the 1125 Act, has conferred on the State Government also, a right of appeal to the Appellate Tribunal, for it provides by sub-section (1), that "any officer empowered by the Government in this behalf or any other person objecting to an order passed by the Appellate Assistant Commissioner under sub-section (3) of S.34 may appeal against such order to the Appellate Tribunal." The question for decision is whether, in this case, the State Government could appeal to the Appellate Tribunal under S.39 of the 1963 Act, or is debarred from doing so by S.15-A of the 1125 Act. 3. For the petitioner it was contented, relying on the dictum of the Supreme Court in Garikapati Veeraya v. N. Subbiah Choudhry AIR. 1957 SC. 3. For the petitioner it was contented, relying on the dictum of the Supreme Court in Garikapati Veeraya v. N. Subbiah Choudhry AIR. 1957 SC. 540 at p. 553 that "the right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists, as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal" and that "this vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise", that the right of appeal of either party, throughout the career of the proceeding was determined, the moment the assessment proceedings commenced under the 1125 Act and is not enlarged or curtailed by the 1963 Act, except to the extent provided for expressly or by necessary implication. In other words, the contention was, that under the 1125 Act under which the assessment proceedings started, no right of appeal to the appellate tribunal accrued to the State Government, and that the repeal by the 1963 Act, did not either expressly or by necessary implication confer such right. The learned Advocate-General relied on S.61 of the 1963 Act for contending, that the State Government's appeal to the appellate tribunal is competent. The learned Advocate-General relied on S.61 of the 1963 Act for contending, that the State Government's appeal to the appellate tribunal is competent. As the decision of the case depends on S.61 of the 1963 Act, it may be extracted below in full: "(1) The General Sales-tax Act, 1125 Act XI of 1125) is hereby repealed: Provided that such repeal shall not affect the previous operation of the said Act, or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject there to anything done or any action taken, including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit, in the exercise of any power conferred by or under the said Act, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act. (2) Notwithstanding anything contained in sub-section (1), any application, appeal, revision or other proceeding made or preferred to any officer or authority under the said Act and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceeding under this Act if it had been in force on the date on which such application, appeal, revision or other proceeding was made or preferred." 4. It was argued for the petitioner that the effect of sub-section (2) of S.61, is only to specify the officer who may dispose of a proceeding instituted under the 1125 Act, and pending at the commencement of the 1963 Act and nothing more. As for sub-section (1), it was argued, that the State Government having had no right of appeal to the appellate tribunal under the 1125 Act, there had accrued to the petitioner from the commencement, a vested right to maintain the decision of the appellate authority whenever it is rendered, free or immune from attack or challenge by way of appeal to the appellate tribunal by the State Government and that the repeal of the 1125 Act did not affect such vested right. The right of appeal, which is a vested right and is a well-known concept, is of the party to whom it belongs and in the absence of it, what the other party derives is but an immunity in respect of the decision rendered from attack or challenge by appeal. We entertain no doubt, that this immunity, whatever it may connote in different circumstances, means in the present context, neither more nor less than a finality in the decision when rendered. The question then is, whether such a right of finality in the decision had accrued from the inception of the proceedings to the party concerned. 7. In the above view, there is no scope for applying the rule in S.4 of the Interpretation and General Clauses Act, 1125 and it is unnecessary to consider whether that rule has been abrogated by the repeal of the 1125 Act and by the. re-enactment of the 1963 Act. Our attention was invited by the learned counsel to three decisions of the Madras High Court reported in Deputy Commissioner of Commercial Taxes, Madras Division v. Sri Swami and Company (13 STC. 468), Deputy Commissioner of Commercial Taxes, Madras Division, Madras v. M. Balasundaram and Company (14 STC. 996) and V. N. Surulivel Nadar and Brothers v. The State of Madras (14 STC. 1005). The first of these does not wholly support the petitioner, and to the extent that there is anything in any of them contrary to the pronouncements of the Supreme Court on which we have relied, we cannot agree. In the result, this petition fails and is dismissed; no costs. Dismissed.