JUDGMENT : ( 1. ) THIS is a petition under Articles 226 and 227 of the Constitution of India seeking to quash the order of the Commissioner of Sales Tax, M. P. , Indore, dated 27-10-1969, passed in Sales Tax Revision No. 323/r. M. of 1962-63 (Petitioners Annexure-4) dismissing the revision on the ground that it was not maintainable under section 39 (1) of the Madhya Pradesh General sales Tax Act, 1958, but it could lie only under section 12 (2) of the Madhya Bharat Sales Tax Act, 1950 (No. 30 of 1950), which provided a period of six months and not one year and as such, the revision being barred by time, was liable to be dismissed. Therefore, the learned Commissioner refused to adjudicate on merits. ( 2. ) THE case relates to the assessment year 1957-58, relating to the Madhya bharat region when the Madhya Bharat Sales Tax Act, 1950, was in force. The petitioner carries on the business of buying and selling kirana goods in the name of M/s. Daluram Pannalal Modi at Ratlam and was a registered dealer under the Madhya Bharat Sales Tax Act, 1950. In respect of the said assessment year, 1957-58, i. e. for the period from 1-4-1957 to 31-3-1958, the Sales tax Officer, Ratlam, passed an order on 23-2-1959 assessing the petitioner to sales Tax. It may be relevant to note that on 1-4-1959, the Madhya Bharat act was repealed and was substituted by the Madhya Pradesh General Sales Tax Act, 1958. ( 3. ) ON 31-12-1960 the Assistant Commissioner of Sales Tax issued a notice for reassessment under section 19 (1) of the Madhya Pradesh General sales Tax Act, 1958, and the actual order of assessment was passed on 31st march, 1961. It is this order of re-assessment, dated 31st March, 1961, that was made the subject-matter of two writ petitions, which were ultimately taken up to the Supreme Court. However, the petitioner on 31-3-1962 had filed a revision before the Commissioner of Sales Tax, purporting to be under section 39 of the M. P. General Sales Tax Act, 1958. It is this order of re-assessment, dated 31st March, 1961, that was made the subject-matter of two writ petitions, which were ultimately taken up to the Supreme Court. However, the petitioner on 31-3-1962 had filed a revision before the Commissioner of Sales Tax, purporting to be under section 39 of the M. P. General Sales Tax Act, 1958. Although this revision was noticed in the first writ petition that was filed when the questions involved in the writ petition were left open for decision by the revisional authority, this fact was not brought to the notice of their Lordships of the Supreme Court on the two occasions when the appeals were taken up before the Supreme Court against the orders of the High Court. This revision was kept pending for a long time as the petitioner had, in the meantime, filed the writ petition and ultimately, when the Supreme Court decided the appeal on the second occasion, the revision was taken up by the Commissioner for hearing and by order, dated 27-10-1969, it was dismissed on the grounds mentioned above. This revisional order is impugned in the present writ petition on the third occasion. ( 4. ) BEFORE considering the questions involved, it may be relevant to note that the petitioner had filed Misc. Petition No. 114 of 1961, in this Court and a Division Bench of this Court by order, dated 5-4 1962, dismissed the petition (this case was reported as Daluram Pannalal Modi, Firm v. Assistant commissioner of Sales Tax ( 1962 MPLJ 825 . ). That order has not been filed on record. However, we sent for the original file of the writ petition. The petitioner raised grounds challenging the validity of the notice of re assessment, dated 31-3-1961, on legal grounds contending that such a notice of re assessment could not be issued. However, all those contentions were negatived. As regards the merits, the Division Bench specifically observed that they could not be considered in these proceedings. It was also observed that an order of re-assessment under section 19 of the M. P. General Sales Tax Act, 1958, was appealable under section 38 and the petitioner was free to agitate the merits of the case in an appeal to be filed before the competent authority. It was also observed that an order of re-assessment under section 19 of the M. P. General Sales Tax Act, 1958, was appealable under section 38 and the petitioner was free to agitate the merits of the case in an appeal to be filed before the competent authority. As such, it is pertinent to note that all the contentions raised by the petitioner against the validity of the notice of re-assessment, dated 31-3-1961 were negatived and the petitioner was left free to agitate the merits of the case in an appeal that he may file. This aspect will have a bearing on the question of res judicata, which was urged by the learned counsel for the respondents as a preliminary objection. This division Bench order of the High Court was the subject-matter of Civil Appeal no. 870 of 1962 before their Lordships of the Supreme Court on special leave being granted and by judgment, dated 8-3-1963, Their Lordships of the Supreme court dismissed the appeal. It is necessary to take note of the points decided by their Lordships of the Supreme Court in the said appeal. Two objections were taken to the validity of the notice of re-assessment, dated 31 3 1961. The first one was that the conditions precedent for satisfaction of the Assistant commissioner for re-opening the re-assessment were not present. The other objection was that the assessment made under the Madhya Bharat Sales Tax act, 1950, could not be re-opened under the M. P. General Sales Tax Act, 1958. Both these contentions were negatived by Their Lordships of the Supreme Court and we have no doubt that as the said questions operate as res judicata, the petitioner cannot be permitted to challenge the notice of re-assessment, dated 31-3-1961 in the present proceedings. ( 5. ) THEREAFTER, the petitioner filed Misc. Petition No. 129 of 1963 in this court, in which he again challenged the order of re-assessment and penalty, dated 31 -3-1961 on the very same grounds and added some other grounds. A division Bench of this Court, by order, dated 29-4-1963 dismissed the said writ petition in Motion Hearing. ( 5. ) THEREAFTER, the petitioner filed Misc. Petition No. 129 of 1963 in this court, in which he again challenged the order of re-assessment and penalty, dated 31 -3-1961 on the very same grounds and added some other grounds. A division Bench of this Court, by order, dated 29-4-1963 dismissed the said writ petition in Motion Hearing. Two grounds were raised: that although under the Madhya Bharat Sales Tax Act, 1950, sugar was taxable, it was not so taxable under the M. P. General Sales Tax Act, 1958, and, therefore, an order of assessment under the Madhya Bharat Act could not be reopened under section 19 (1) of the M. P General Sales Tax Act, 1958, and secondly, that no penalty could be imposed under section 14 of the repealed Act after its repeal. Both these contentions were negatived by a Division Bench of this Court. The merits of the case were not at all adjudicated upon. This order was also made the subject-matter of Civil Appeal No. 249 of 1964, after special leave was granted. Their Lordships of the Supreme Court, by judgment, dated 7-10-1964 reported as Devilal Modi v. Sales Tax Officer, Ratlam (1968 MPLJ 160= (1965) 16 ST C 303 = A 1 R 1965 SC 1150.) dismissed the appeal mainly on the ground of constructive res judicata We may usefully reproduce the observations of Their Lordships of the Supreme Court as made in paragraph 12 of the said judgment as follows:- "the present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case the appellants sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the writ petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court had decided against him on the merits of those points, he has come to this Court; but that is not all. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court had decided against him on the merits of those points, he has come to this Court; but that is not all. At the hearing of this appeal, he has filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive ret judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata. " ( 6. ) THE learned counsel for the respondents raised a preliminary objection to the ten ability of the present writ petition on the ground that it is barred not only by the principle of res judicata, but also by constructive res judicata. In this connection the learned counsel relied on the pronouncement of their Lordships of the Supreme Court in Devilal Modi v. Sales Tax Officer, Ratlam (supra); and cited some more cases to support his contention, namely, Gulabchand chhotalal Parikh v. State of Gujrat ( AIR 1965 SC 1153 ) ; Sheodan Singh v. Daryao Kunwar (A I R 1966 SC 1332.); Union of India v. Nanak Singh ( AIR 1968 SC 1370 .) and The State of Punjab v. B. D. Kaushal ( AIR 1971 SC 1676 . ). ). We may observe that there can be no doubt that as laid down by their Lordships of the supreme Court in the said cases as also in this very case on an earlier occasion, namely, in Devilal Modi v, Sales Tax Officer, Ratlam (supra), the second writ petition filed by the petitioner was clearly barred by the principle of constructive res judicata and further there can be no doubt that any further attack on the validity of the order of re-assessment and penalty, dated 31-3-1961 would also be barred by the principle of res judicata and constructive res judicata. That evidently cannot be permitted to be done. ( 7. ) THE learned counsel for the respondents also invited attention to the observations of their Lordships of the Supreme Court in Devilal Modi v. Sales tax Officer, Ratlam, pointing out that the order, dated 31-3-1961 had become final and, therefore, it cannot be challenged in any manner. We are unable to accede to this contention. On neither of the two occasions was it brought to the notice of Their Lordships of the Supreme Court that the petitioner had on 31-3-1962 filed a revision under section 39 (1) of the M. P. General Sales Tax act, 1958, which was pending. As such, the view expressed by Their Lordships of the Supreme Court that the said order had become final, would have reference only to the orders passed in the writ petitions and not with reference to the order that might be passed by the revisional Court in case a revision would legally be tenable before the Commissioner. By no stretch of imagination can the principles of res judicata or constructive res judicata be stretched so as to nullify the revision, which the petitioner had already filed and which was pending almost for seven years. Of course, if the petitioner had not filed any revision and if it was not pending; in that event, the principle of constructive res judicata might have been applicable to the petitioners contentions to be raised on merits. Of course, if the petitioner had not filed any revision and if it was not pending; in that event, the principle of constructive res judicata might have been applicable to the petitioners contentions to be raised on merits. It is pertinent to note that in the first writ petition a Division Bench of this Court in Daluram Pannalal Modi, Firm v. Assistant Commissioner of Sales; tax (supra), had refused to go into the merits of the case and the petitioner was left free to agitate the merits in an appeal to be filed under section 38 of the M. P. General Sales Tax Act, 1958. In view of this fact it is not possible to accept the contention of (he learned counsel for the first respondent that the present petition should be thrown out on the ground of constructive res judicata. We may observe that the questions involved in the present writ petition are necessarily with reference to the ten ability of a revision under section 39 (1) of the M. P. General Sales Tax Act, 1958, and that revision was thrown out by the Commissioner on the ground that it was not tenable and a revision could be filed under the repealed enactment alone for which the limitation was six months and not one year. This question was never the subject-matter of any writ petition, nor the subject-matter of an appeal before their Lordships of the supreme Court on two occasions and as the petitioner had already filed his revision, he can pursue the remedy and, in our opinion, the consideration of the revision on merits cannot at all be barred by the principle of res judicata or constructive res judicata. For this reason, we overrule the preliminary objection and hold that the present writ petition challenging the order of the Commissioner, dated 27-10-1969 is tenable in law and the points raised in the present writ petition have to be adjudicated upon on merits. ( 8. For this reason, we overrule the preliminary objection and hold that the present writ petition challenging the order of the Commissioner, dated 27-10-1969 is tenable in law and the points raised in the present writ petition have to be adjudicated upon on merits. ( 8. ) THE learned counsel for the petitioner urged three questions for our consideration, which we propose to consider in a serial order: (1) Whether the order of assessment, dated 31-3-1961 can be construed to have been passed under section 19 (1) of the M. P. General Sales Tax act, 1958, or under section 10 of the Madhya Bharat Sales Tax Act, 1950; (2) whether a revision will lie against the said order under section 39 (1) of the M. P. General Sales Tax Act, 1958, or under section 12 (2)of the Madhya Bharat Sales Tax Act, 1950; (3) the consequential question of limitation for a revision would be whether a revision could be filed within one year as per the M. P. General sales Tax Act, 1958, or within six months as per the Madhya Bharat Sales tax Act, 1950. ( 9. ) TAKING up the first question, whether the order of assessment, dated 31-3-1961, can be construed to have been passed under section 19 (1) of the m. P. General Sales Tax Act, 1958, or under section 10 of the Madhya Bharat sales Tax Act, 1950; we are mainly required to interpret section 52 of the M. P. General Sales Tax Act, 1958, which is a repealing and saving section. Section 52 of the M. P. General Sales Tax Act, 1958, is as follows : - "s. 52. Section 52 of the M. P. General Sales Tax Act, 1958, is as follows : - "s. 52. Repeal and savings:- (1) The Central Provinces and Berar Sales Tax Act, 1947, the Madhya Bharat Sales Tax Act, Samvat 2007, the Central Provinces and Berar sales Tax Act, 1947, as extended to Vindhya Pradesh and Bhopal regions and as in force in those regions immediately before the commencement of this Act, and the Rajasthan Sales tax Act, 1954, as in force in Sir on region, are hereby repealed: provided that such repeal shall not affect the previous operation of the said Acts or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate, or licence) in the exercise of any power conferred by or under the said Acts shall, in so far as it is not inconsistent with the provisions of this Act, 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 taxes and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act. (1-a ).-Notwithstanding anything contained in sub-section (1) a dealer registered or licenced under any of the repealed Acts who has not been assessed to tax for any period prior to the commencement of this Act shall be assessed to tax in accordance with the provision of the repealed Acts as if this Act has not been passed, subject however to the condition that the period prescribed therefore under the relevant provisions of the relevant repealed Act shall extend till the expiry of five years from the date of commencement of the madhya Pradesh General Sales Tax (Second Amendment) Act, 1964 (20 of 1964 ). (2)-Notwithstanding anything contained in sub-section (1), any first appeal preferred to any officer under any of the said Acts and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer, who would have had jurisdiction to entertain such appeal under this Act if it had been in force on the date on which such appeal was preferred. (3 ).-Notwithstanding the repeal of the Acts specified in sub-section (1), any second appeal, application for revision, review or reference to the High Court thereinafter called the proceeding) preferred or made under any of the said Acts and pending at the commencement of this Act, shall, continue to be governed by the provisions of the Act and the rules under which such proceedings were preferred and made and such proceedings shall be heard and decided in accordance with the provisions of the said Act and the rules, as in force of the date immediately before the commencement of this Act as if the said Act and the rules had not been repealed; and the right of reference to High Court, if any, arising out of any of such proceedings shall not be affected by the said repeal and such reference shall be made and disposed of in accordance with the provisions of the said Act and rules (4)-Notwithstanding anything contained in sub section (1), any first appeal or any second appeal arising under any of the said Acts but preferred after the commencement of this Act, shall be heard and decided, in case of first appeal, by the officer competent to entertain first appeal under sub-section (1) of section 38, and in case of second appeal, by the tribunal, in accordance with the provisions of this Act. " Section 55 confers powers on the State Government to remove difficulties. Analysing section 52 of the Act, we find the following provisions : -Sub-section (1) provides that whatever has been done in the past under the repealed enactments, shall be deemed to have been done under the provisions of the repealing Act, provided it is not inconsistent with the provisions of the repealing Act. Sub-section (1-a) makes a further special provision to the effect that despite sub-section (1) if a dealer has not been assessed under the repealed act, then he can be assessed under the repealing Act, subject to the restrictions and limitations placed by the repealed enactment within a period of five years from the date of commencement of the M. P. General Sales Tax (Second Amendment) Act, 1964. As such, it extends the period for re- assessment in respect of escaped assessment. As such, it extends the period for re- assessment in respect of escaped assessment. However, we are not concerned with this amended sub-section (1-a) as the re-assessment order was passed on 31-3-1961 when the Amend-ment Act of 1964 was not in force. Sub-section (2) merely concerns the first appeal forum and the officer competent to dispose of an appeal under the repealing Act would be required to dispose of the appeals pending at the commencement of the repealing Act. Similarly, sub-section (3) provides that any second appeal, application for revision, review or reference to the High Court made under the repealed Acts and pending at the commencement of this Act shall continue to be governed by the provisions of the repealed enactments and they shall be disposed of in accordance with the provisions of the repealed enactments. In the present case we are not concerned with sub-section (3), either as at the commencement of the M. P. General Sales Tax, 1958 no proceeding was pending. Sub-section (4) provides that despite sub-section (1) any first appeal or second appeal arising under the repealed Act, but preferred after the commencement of the repealing Act, shall be disposed of by an officer competent under the repealing Act in accordance with the provisions of the repealing Act. As such, sub-section (4) of section 52 of the Act will have some bearing on the questions involved in the present case, although no specific provision has been made in respect of revisions against orders of re-assessment. The point of distinction is really this that all pending cases at the commencement of the repealing Act, i. e. 1-4-1959 have to be disposed of in accordance with the provisions of the repealed Acts; while all appeals filed on any day subsequent to 1-4-1959 have to be disposed of in accordance with the provisions of the repealing enactment, i. e. the 1958 Act. In view of this specific provision, we are clearly of the opinion that if an order of re-assessment is passed subsequent to the coming into force of the 1958 Act, the matter of appeal will clearly be governed by subsection (4) of section 52 of the Act, and on the same analogy, a revision filed subsequently ought to be governed by the provisions of the 1958 Act, although the revisions pending on 1-4-1959 will have to be disposed of in accordance with the provisions of the repealed Acts. ( 10. ) THE learned counsel for the petitioner invited attention to the pronouncement of their Lordships of the Privy Council in Government of the province of Bombay v. Hormusji Manekji (A I R 1947 PC 200.), wherein their Lordships observed as follows: "it is a familiar principle of statutory construction that where you find in the same section express exceptions from the operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject matter of the exceptions would have come within the operative provisions of the section. There are four exceptions in the proviso to section 4, which are clearly general exceptions to the operative provisions of the section. If the construction adopted by Chandavarkar J. in Lukshman v, Govind (11. R 28 Bom. 74.), and adopted by the High Court in the present case be correct, these exceptions were unnecessary, and they are stronger instances for the application of that construction, for respondents agreements are contracts fixing the amount of land revenue to be paid; they are neither matters of title to, nor matters of tenure of the land. Neither the present respondent, nor the defendants in the two Inam cases, claimed to come within the proviso to section 4, but section 5 was held applicable in the Inam cases, and their Lordships express no opinion as to section 5. Their Lordships are of opinion that, apart from the question of ultra vires, the respondents claim, as set out in the plaint based on the agreements, did constitute objections to the amount or incidence of assessments authorised by Government within the meaning of section 4 (b), Bombay Revenue Jurisdiction Act, 1876 and that the jurisdiction of the Civil Court was thereby excluded. " ( 11. " ( 11. ) WE may observe that the sub-section (1-a), sub-section (2), subsection (3) and sub-section (4) of section 52 of the M. P. General Sales Tax Act, 1958 are to be read as exceptions to sub-section (1) and full effect must be given to the exceptions, particularly, sub-section (3) and sub-section (4), which lay down that all pending appeals and revisions as on 1-4-1959 have to be disposed of in accordance with the repealed enactments; while those filed subsequently have to be disposed of in accordance with the provisions of the repealing enactment. ( 12. ) FT was also urged by the learned counsel for the petitioner that as specific provisions had been made in the repealing and saving clause, namely, section 52 of the M. P. General Sales Tax Act, 1958, section 10 of the M. P. General Clauses Act, 1958, providing for the effect of repeal would necessarily have to be excluded and the same cannot be called in aid by the respondents. In this connection attention was invited to the pronouncement of their Lordships of the Supreme Court in Indira Sohanlal v. Custodian of Evacuee Property, Delhi (A I R 1956 SC 77.)as follows : "before proceeding to determine it, it is desirable to consider whether section 6, General clauses Act (Equivalent to section 10 of the M. P. General Clauses Act, 1958) can be relied on. The position as regards section 6, General Clauses Act in the case of repeal and re-enactment has been considered by this Court in State of Punjab v. Mohar Singh (AIR 1956 SC 84,) and laid down as follows at page 88 : "whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention the line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot, therefore, subscribe to the broad proposition that section 6, General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law. . . . . . . " ( 13. ) IT is, therefore, clear that ordinarily section 6 of the General Clauses act, 1897, or section 10 of the M. P. General Clauses Act, 1958, will be applicable unless there be a different intention expressed in the repealing enactment. Earlier we have already pointed out that the M. P. General Sales Tax Act, 1958, and particularly section 52, expresses a different intention and there is a distinction between the proceedings pending on 1-4-1959 and proceedings that may be initiated after that date. The Act clearly provides for a different treatment to these two classes of proceedings. Under these circumstances, section 10 of the m. P. General Clauses Act, 1958, would, in our opinion, have to be excluded from consideration. We may further observe that the same principle is enunciated by their Lordships of the Supreme Court in Bishambhar Nath Kohli v. State of u. P. ( AIR 1966 SC 573 .), wherein their Lordships have laid down that if the repealing provisions of an enactment express an intention to the contrary, in that event, section 6 of the General Clauses Act, 1897, will clearly be inapplicable. It will certainly apply if there be no different intention. ( 14. ) SIMILARLY, in Kalawati Devi Harlalka v. The Commissioner of Incometax (A I R 1968 SC 162.), their Lordships have laid down that because of the provisions of section 297 (2) of the Income Tax Act, 1961, which would amount to an intention to the contrary, section 6 of the General Clauses Act, 1897, would be wholly inapplicable. ( 15. ) WE may further observe that their Lordships of the Supreme Court had to consider the effect of section 52 of the M. P. Genera! Sales Tax Act, 1958, in The Sales Tax O fficer. ( 15. ) WE may further observe that their Lordships of the Supreme Court had to consider the effect of section 52 of the M. P. Genera! Sales Tax Act, 1958, in The Sales Tax O fficer. Circle I, Jabalpur v. Hanumanprasad (1967 MPLJ 138 = air 1967 SC 565 .) wherein their lordships made the following observations : - "the facts given by us above clearly show that the original assessment of the respondent was in respect of a period when the new Act had not come into force. The respondent had filed the return, and even the notice in that connection was issued by the Sales Tax Officer prior to the enforcement of the new Act. The actual order of assessment was made on 23rd May, 1959, shortly after the new Act had come into force. The mere enforcement of that Act by the time the order of assessment was passed by the Sales Tax Officer cannot lead to the conclusion that the assessment of the respondent was made under the new Act and not under the repealed Act. It was under section 52 of the new Act that the repealed Act was repealed, and that section itself under the proviso laid down 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. There was also the further addition that subject thereto anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation certificate or licence) in the exercise of any power conferred by or under the said Act shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in 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. In view of this proviso it has to be held that when this new Act came into force on 1st April, 1959, all rights, title obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained un-affected and intact. In view of this proviso it has to be held that when this new Act came into force on 1st April, 1959, all rights, title obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained un-affected and intact. The rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force. The repealed Act laid down what turnover was taxable, how it was to be computed, and at what rate the tax was to the charged. These provisions clearly created rights as well as liabilities of dealers. Those rights and liabilities were thus preserved by section 52 of the new Act. The assessment which was completed in the case of the respondent on 23rd May, 1959, was therefore, an assessment in accordance with the rights and liabilities of the respondent under the repealed Act; and this being so, it has to be held that the proviso to section 19 (1) of the new Act was applicable to the case of the respondent. As a result of this proviso, the period of re-assessment on the ground of under-assessment, escapement or wrong deduction in the case of the respondent had to be as provided in section 11-A (1)of the repealed Act, so that the period was three years and not five years as laid down by section 19 (1) of the new Act. The notice dated 23rd October, 1962, was clearly issued beyond the period of limitation prescribed by section 11-A (1) of the repealed Act, and the proceedings in pursuance of it were time-barred. " ( 16. ) IN that view of the matter, the appeal preferred by the Sales Tax officer after grant of a special leave was dismissed by their Lordships. It is pertinent to note that the notice of reassessment had already been given by the sales Tax authorities under the repealed enactment; while the actual order of assessment was made on 23-5-1959. ) IN that view of the matter, the appeal preferred by the Sales Tax officer after grant of a special leave was dismissed by their Lordships. It is pertinent to note that the notice of reassessment had already been given by the sales Tax authorities under the repealed enactment; while the actual order of assessment was made on 23-5-1959. As such, the right to reopen it being considered to be a vested right, the period of three years expired on 23-5-1962 and in that view, the notice, dated 23-10-1962, for reopening the re-assessment under section 19 (1) of the M. P. General Sales Tax Act, 1958, was held to be barred by time. ( 17. ) IT may further be relevant to note the pronouncement of their Lordships of the Supreme Court in The Commissioner of Sales Tax, M. P. v. M/s. Amarnath Ajit Kumar (1973 MPLJ 169= air 1972 SC 38 .) wherein their Lordships affirmed the decision of this Court in M/s. Amarnath Ajit Kumar v. Commissioner of Sales Tax, M. P. (1967 MPLJ 104=air 1969 M P 207.)and observed as follows : - "now coming back to section 52 of the M. P. Sales Tax Act of 1959, the proviso to section 52 (1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under section 12 (1) of the Madhya Bharat act after the prescribed period did create a right in favour of the assessee ? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12 (1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why section 12 (1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. We fail to see why section 12 (1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. The effect of section 52 (1) of the M. P. Sales Tax Act, as seen earlier is that all assessments, which include reassessments should be in accordance with the repealed Act. The second part of that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall, in so far as it is not inconsistent with the provisions of the M. P. Sales Tax Act, 1959, be deemed to have been done in exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between section 12 (1; of the Madhya Bharat Act and section 39 (2) of the M. p. Sales Tax Act, 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised. Therefore, the Revenue cannot call into aid the second part of the proviso. The resulting position is that the governing provision would continue to be section 12 (1) of the Madhya bharat Act. " In that view of the matter, their Lordships dismissed the appeal filed by the Department. That was clearly a case of right that had accrued in favour of the assessee under the repealed enactment and the same could not be adversely affected by virtue of section 52 (1) proviso of the M. P. General Sales tax Act, 1958. ( 18. That was clearly a case of right that had accrued in favour of the assessee under the repealed enactment and the same could not be adversely affected by virtue of section 52 (1) proviso of the M. P. General Sales tax Act, 1958. ( 18. ) AT the same time we might observe that as laid down by their Lordships of the Supreme Court in Nani Gopal Mitra v. State of Bihar (AI R 1970 SC 1636.), the rule of interpretation is that if the procedural matters are amended during the pendency of an appeal, the amending provision will be applicable and all procedural matters can be said to be retrospectively governed by the amending provision, although the rights, liabilities and obligations, which might be considered to be vested ones, would not be retrospectively governed, but they can only be prospectively governed. Therefore, any procedural amendment would certainly have a retrospective operation so far as pending matters are concerned. We have already indicated the scheme of section 52 of the M. P. General Sales Tax act, 1958, wherein a distinction is drawn between pending cases and cases that may arise after 1-4-1959. Pending cases as per sub-section (3) of that section are to be governed by the provisions of the repealed enactments, while cases arising after 1-4-1959 as per sub-section (4) of that section are to be governed by the provisions of the repealing enactment. ( 19. ) NOW applying the above principles to the instant case we find that the order of the Sales Tax Officer under section 10 of the Madhya Bharat Sales tax Act, 1950, was passed on 23-2-1959. On 1-4-1959 the M. P. General Sales tax Act, 1958, came into force and after that, the Assistant Commissioner of sales Tax on 31-12 1960 issued a notice for re-assessment under section 19 (1) of the M P. General Sales Tax Act, 1958, and the order in those proceedings was actually passed on 31-3-1961. Therefore, the question arises whether the order passed on 31-3-1961 can be construed to be as one passed under section 10 of the Madhya Bharat Sales Tax Act, 1950 or it can be construed to have been passed under the analogous provision of the M. P. General Sales Tax Act, 1958. ( 20. Therefore, the question arises whether the order passed on 31-3-1961 can be construed to be as one passed under section 10 of the Madhya Bharat Sales Tax Act, 1950 or it can be construed to have been passed under the analogous provision of the M. P. General Sales Tax Act, 1958. ( 20. ) IN this connection we have to take note of certain provisions of the m. P. General Sales Tax Act, 1958, besides section 52 of the Act. Section 19 of the Act provides for assessment of turnover escaping assessment. It is as follows:- "s. 19 (1) Where an assessment has been made under this Act or any Act repealed by section 52 and if for any reason any sale or purchase of goods chargeable to tax under this act or any Act repealed by section 52 during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calender years from the date of order of assessment after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed, in such manner as may be prescribed, to re-assess the tax payable by such dealer and the Commissioner may direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount: provided that in the case of an assessment made under any Act repealed by section 52, the period for re-assessment on the ground of under assessment, escapement or wrong deduction shall be as provided in such Act notwithstanding the repeal thereof. (2) The re-assessment made under sub-section (1) shall be at the rate at which it would have been mads had there been no under-assessment or escapement or wrong deduction. (2) The re-assessment made under sub-section (1) shall be at the rate at which it would have been mads had there been no under-assessment or escapement or wrong deduction. (3) If for any reason the licence fee, registration fee or exemption fee has escaped levy or has been charged at a lower rate in any year, the Commissioner may, at any time within and period of three calendar years next succeeding that to which such fee relates, levy the correct amount of the fee payable in respect of that year after issuing a notice to the dealer and after making such enquiry as he considers necessary; and the Commissioner may direct that the dealer shall pay, by way of penalty in "addition to the amount of fee so levied, a sum not exceeding that amount. " ( 21. ) THE said section was amended by the Amendment Act No. 23 of 1963, retrospectively and was to operate from 1st April, 1959. Therefore, we are not concerned with the amendments effected by the said Act, but necessarily concerned with section 19 as it stood before the amendment as the re-assessment order had already been passed on 31-3-1961. However, even so in the matter of re-assessment, the provisions of the repealed enactments have to be adhered to as per proviso as also sub-section (2 ). Therefore, although the reopening of the assessment may be under section 19 (1) of the M. P. General Sales Tax Act, 1958, the manner of assessment must be in accordance with the provisions of the repealed enactments. ( 22. ) FURTHER it may be necessary to take note of analogous provisions in the two Acts, in the matter of levying penalty and the remedy of an appeal or a revision. Section 38 of the M. P. General Sales Tax Act, 1958, provides for appeals. It is as follows :- "s. 38. ( 22. ) FURTHER it may be necessary to take note of analogous provisions in the two Acts, in the matter of levying penalty and the remedy of an appeal or a revision. Section 38 of the M. P. General Sales Tax Act, 1958, provides for appeals. It is as follows :- "s. 38. Appeal- (1) Any dealer or person objecting to an original order of assessment, with or without penalty passed in respect of him under section 18 or section 19 or to an original order imposing penalty on him or relating to refund under section 24 or any order passed under section 45 may, in the prescribed manner, appeal against such order to- (a) the Appellate Assistant Commissioner, when the original order is passed by the sales Tax Officer or the Assistant Sales Tax Officer; (b) The Deputy Commissioner, where the original order is passed by the Assistant commissioner. (2) Any dealer or person aggrieved by an order passed in appeal under sub-section (1)may, in the prescribed manner, appeal against such order to the Tribunal: provided that the dealer or person may at his option instead of filing a second appeal under this sub-section make an application for revision to the Commissioner under subsection (1) of section 39 and where the dealer or person exercises such option he shall be precluded from filing a second appeal under this sub-section. (3) No first or second appeal against an order of assessment, with or without penalty or against an order imposing a penalty shall be admitted by the appellate authority unless the tax with penalty, if any, or the penalty, as the case may be, in respect of which the appeal has been preferred, has been paid: provided that the said authority may, if it deems fit, for reasons to be recorded in writing, entertain an appeal against an order of assessment with or without penalty or an order imposing penalty on payment of such smaller amount, as it may direct, which shall not be less than one third of the total balance due from the dealer under the order of assessment with penalty, if any, or the order imposing the penalty, as the case may be. (4) Every first appeal shall be filed within thirty days and every second appeal shall be filed within sixty days from the date of communication of the order against which the appeal is to be filed. (5) Subject to such procedure as may be prescribed and after such further inquiry as it may think fit the appellate authority, in disposing of any appeal under sub-section (1) or (2)may- (a) confirm, reduce, enhance or annul the assessment or the penalty or both, or (b) set aside the assessment or the penalty or both, and direct the officer whose assessment order, has been appealed against to make a fresh assessment, after such further inquiry, as may be directed; or (c) pass such orders, as it may think fit. (6) In the case of an order passed in first appeal under this section against which an application for revision is filed to the Commissioner under sub-section (1) of section 39, the order passed in revision shall be final and in the case of every other order, passed in first appeal or second appeal under this section such order shall, subject to the provisions of this section, section 39, or section 44, as the case may be, be final. " ( 23. ) IT is pertinent to note that the proviso to sub-section (2) of the said section permits revision by the assessee under section 39 (1) of the Act as an alternative remedy to the remedy of filing an appeal. Ordinarily, where a judgment or an order is appealable, the revisional Court does not entertain a revision. But, here is a provision to the contrary where the assessee is given an option to file a revision instead of an appeal. ( 24. ) SECTION 39 of the M. P. General Sales Tax Act, 1958, is as follows :-"s. 39. Ordinarily, where a judgment or an order is appealable, the revisional Court does not entertain a revision. But, here is a provision to the contrary where the assessee is given an option to file a revision instead of an appeal. ( 24. ) SECTION 39 of the M. P. General Sales Tax Act, 1958, is as follows :-"s. 39. Power of revision by Commissioner.- (1) The Commissioner may, either of his own motion or on application by a dealer or person made within the prescribed period from the date of the order, call for the record of the proceeding in which any order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, as he considers necessary and subject to the provisions of this Act, may pass, such order thereon, not being an order prejudicial to the dealer or person as he thinks fit; provided that the Commissioner shall not revise any order under this sub-section- (a) where an appeal against the order is pending before any authority specified in sub-section (1) of section 38, or where if such appeal lies, the time within which it may be filed has not expired; or (b) where a second appeal against the order has been filed. Explanation-An order by the Commissioner declining interference shall not be deemed to be an order prejudicial to the dealer or person. Explanation-An order by the Commissioner declining interference shall not be deemed to be an order prejudicial to the dealer or person. (2) The Commissioner may of his own motion or on information received call for and examine the record of any proceeding under this Act if he considers that any order passed therein by any person appointed under section 3 to assist him is erroneous in so far it is prejudicial to the interests of the revenue, he may, after giving the dealer or person an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment: provided that no proceedings shall be initiated under this sub-section after the expiry of three years from the date of the order sought to be revised: provided further that the Commissioner shall not revise any order under this sub-section where a second appeal against such order is pending on such appeal has been decided on the merits. (3) Any dealer or person objecting to an order passed by the Commissioner under subsection (2) may appeal to the Tribunal within sixty days of the date on which the order is communicated to him. (4) The provisions of sub-sections (3) and (5) of section 38, shall, mutatis mutandis, apply to appeals filed under sub-section (3 ). " ( 25. ) THERE is a distinction between the provisions of sub-section (1) and sub-section (2) of this section. So far as sub-section (2) is concerned, it has been the subject-matter of interpretation by their Lordships of the Supreme court and their Lordships have clearly laid down in the cases mentioned above that if a vested right had accrued in favour of an assessee under the repealed enactment, then the Commissioner in exercise of the powers conferred by subsection (2) cannot reopen it after the expiry of that period and the larger period prescribed by the. M. P. General Sales Tax Act, 195,8, will not be available to him Further we may observe that the provision of sub-section (1) is altogether different, where the Commissioner either of his own motion or on an application made by the assessee has been given the power of revision. M. P. General Sales Tax Act, 195,8, will not be available to him Further we may observe that the provision of sub-section (1) is altogether different, where the Commissioner either of his own motion or on an application made by the assessee has been given the power of revision. The assessees right is exercisable inspite of the fact that the order may be appealable. The only condition is that he must not have filed an appeal and he can use the remedy of a revision as an alternative remedy to that of an appeal. ( 26. ) FOR filing such a revision, the limitation is 12 months from the date of the order against which the revision is filed, as per rule 57 (4) of the M. P. General Sales Tax Rules, 1959. As such, it provides for a larger period. ( 27. ) LET us now examine the provisions of the Madhya Bharat Sales Tax act, 1950. Section 11 of the same provides for appeals. It is as follows :-"s. 11. (1) Any assessee objecting to an assessment or refund or to an order of penalty may, within sixty days from the date on which he was served with a notice of demand, or the copy of the refund order, appeal to such authority as may be prescribed. Provided that in the case of assessment for a Mela an appeal shall lie within a week from the date of the receipt of the order appealed against: provided further that no appeal shall be entertained under this sub-section unless it is accompanied by a satisfactory proof of the payment of the tax in respect of which appeal has been preferred. (2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) The appellate authority may, after giving the appellant a reasonable opportunity of being heard- (a) confirm, reduce, enhance, or annul the assessment; or (b) set aside the assessment and direct the authority to pass a fresh order after such further inquiry as may be directed. (4) Every order passed in appeal under this section shall, subject to the powers of revision conferred by section 12 and of any reference made to High Court under section 13 be final. (4) Every order passed in appeal under this section shall, subject to the powers of revision conferred by section 12 and of any reference made to High Court under section 13 be final. (5) If the amount of assessment is reduced by the appellate Court under sub-section (1)of clause (3) above he shall order the excess amount of tax, if released to be refunded in such time as may be prescribed in the rules. " section 12 of the said Act provides for revisions. It is as follows:- "s. 12. (1) The Commissioner may in his discretion at any time suo motu or being moved by the assessing authority call for and examine the records of any proceedings under this Act and if he considers any order is illegal or improper or erroneous in so far as it is prejudicial to the interests of the revenue he may pass orders as he thinks fit; provided that no order shall be passed prejudicial to a dealer without giving him an opportunity of hearing; provided further that the Commissioner shall not revise an order which has been made more than two years previously. (2) The Commissioner may on application for revision of an order by a dealer under this Act made within six months of the date of the order, call for the record of the proceedings in which the order complained against was passed and after examining the record, subject to the provisions of this Act, pass such order not prejudicial to the assessee, as he thinks fit; provided that an order declining to interfere shall be deemed not prejudicial to the assessee. Provided further that no revision shall lie if there is time for filing an appeal or if an appeal is pending before the appellate authority. " ( 28. ) THE difference in the revisional provision under the Madhya Bharat act and under the Madhya Pradesh Act is that under the former, no revision could he filed if there was time for filing an appeal or if an appeal was pending before the appellate authority. However, under the Madhya Pradesh Act, the revisional remedy could be restored to as an alternative to the remedy of an appeal. ( 29. However, under the Madhya Pradesh Act, the revisional remedy could be restored to as an alternative to the remedy of an appeal. ( 29. ) IN the light of the provisions mentioned above, we have necessarily to take into consideration the fact that reopening of the assessment is done under section 19 (1) of the M. P. General Sales Tax Act, 1958. So far as the rights, liabilities and obligations are concerned, the reassessing authority is necessarily confined to the provisions of the repealed enactment. But, so far as the procedural matters are concerned, it is open to the assessee to contend that the order having been passed under the provisions of the repealing enactment, he can avail of the remedies provided by the repealing Act and that he is not confined to the provisions of the repealed enactments. It would be so especially in view of the fact that sub-section (3) and sub-section (4) of section 52 specially provide for a different treatment in the matter of pending cases and in the matter of cases arising after 1-4-1959. In this view of the matter, we have no doubt that although the re-assessing authority has to dispose of the matter of reassessment in accordance with the provisions of the repealed enactment, namely, the Madhya Bharat Sales Tax Act, 1950, the assessee can certainly avail of the remedial provisions made in the repealing Act, namely, the M. P. General Sales Tax Act, 1958. As such, we are of the view that an order of re-assessment under section 19 (1) of the M. P. General Sales Tax Act, 1958, in respect of the assessment made under any of the repealed enactments would be revisable under section 39 (1) of the M. P. General Sales Tax Act, 1958, at the instance of the assessee and in this connection the provisions of section 39 (1)of the Act ought not to be confused with the provisions of sub-section (2) of that section. Therefore, although sub-section (2) might confine the Commissioner to the period of limitation provided by the repealed enactment, an assessee purporting to file a revision under sub-section (1) can avail of the larger period of one year instead of the period of six months provided by section 12 of the Madhya Bharat Sales Tax Act, 1950. Therefore, although sub-section (2) might confine the Commissioner to the period of limitation provided by the repealed enactment, an assessee purporting to file a revision under sub-section (1) can avail of the larger period of one year instead of the period of six months provided by section 12 of the Madhya Bharat Sales Tax Act, 1950. Of course, if the petitioners revision had been pending on 1-4-1959, the matter would have been governed by section 12 of the Madhya Bharat Sales Tax Act, 1950. In this view of the matter, we are clearly of the opinion that the order of re-assessment, dated 31-3-1961, passed under section 19 (1) of the M. P. General Sales Tax Act, 1958, ought to be construed to be one passed under the repealing enactment and not one under section 10 of the Madhya Bharat Sales Tax Act, 1950. Further, we are of the opinion that as a necessary corollary, such order would be revisable under section 39 (1) of the M. P. General Sales Tax Act, 1958, and not under section 12 (2) of the Madhya Bharat Sales Tax Act, 1950. This would also decide the third question of limitation and as we hold that the matter will be governed by the repealing Act, the limitation will be one year and not six months, as provided by the repealed enactment. ( 30. ) AS a result of the discussion aforesaid, we are of the opinion that the order impugned, namely, the one, dated 27-10-1969, passed by the revisional authority was clearly erroneous and the said authority refused to exercise jurisdiction vested in it under the law under a misapprehension as to the law applicable. We have already disposed of the question of res judicata and constructive res judicata. We need not say anything in that behalf except to observe that the revision will necessarily be confined to other questions than those which already stand disposed of by the pronouncement of their Lordships of the supreme Court on two previous occasions and the petitioner will not be permitted by the revisional authority to canvass those questions. But, it will be open to the petitioner to challenge the order of reassessment, dated 31-3-1961 on merits so far as the other questions are concerned. But, it will be open to the petitioner to challenge the order of reassessment, dated 31-3-1961 on merits so far as the other questions are concerned. We may further observe that the principle of res judicata will certainly be applicable to the petition, although we have refused to apply the principle of constructive res judicata as the petitioners revision filed on 31-3-1962 was already pending before the commissioner. ( 31. ) IN the result, this petition succeeds and is accordingly allowed. The order impugned, i. e. the order, dated 27-10-1969, passed by the Commissioner is quashed and the revision is remitted to that authority for being disposed of on merits having in view the observations made by us with reference to the applicability of the principle of res judicata. Under the circumstances we direct that there shall be no order as to costs of this Court. The outstanding amount of the security deposit shall be refunded to the petitioner. ( 32. ) I have had the advantage of reading the draft judgment of My lord the Chief Justice. I regret I cannot agree with him that the revision preferred by the assessee before the Commissioner, Sales Tax, M. P. , Indore, would be governed by the period of limitation under the Repealing Act i. e. the M. P. General Sales Tax Act, 1958 section 39 (1 ). In my view, the revision lay under the M. B. Sales Tax Act, 1950-Section 12 (2) which provided a shorter period of limitation and the Commissioner of Sales Tax, by his order dated 27-10-1969 rightly rejected the revision as barred by time. I, however, agree with his lordship that the writ petition challenging this order is not barred by res judicata or constructive res judicata. ( 33. ) TO state the facts briefly, the petitioner before us is a registered dealer and carries on business in Kirana Goods in the name of M/s. Daluram Panna-lal Modi at Ratlam. He submitted his return for the purposes of Sales Tax for the year 1957-58 under the Madhya Bharat Sales Tax Act, 1950. The order of assessment was made on 23-2-1959 before the Madhya Pradesh General Sales tax Act, 1958, came into force. It came into force on 1-4-1959. He submitted his return for the purposes of Sales Tax for the year 1957-58 under the Madhya Bharat Sales Tax Act, 1950. The order of assessment was made on 23-2-1959 before the Madhya Pradesh General Sales tax Act, 1958, came into force. It came into force on 1-4-1959. On 31-12-1960, the Assistant Commissioner, Sales Tax, issued a notice of reassessment under section 19 (1) of the new Act and the order of reassessment was passed 31-3-1961. The petitioner-assessee filed a revision purporting to be under section 39 of the new Act, on 31-3-1962. The question arose whether the revision was governed by the limitation of six months prescribed under the repealed Madhya Bharat Act or by the limitation of twelve months given under the repealing Act of 1958. ( 34. ) IT cannot be a matter of controversy that the reassessment for the period covered by the repealed Act, though made after the commencement of the Act of 1958, would be governed by the provisions of repealed Act. Proviso to section 19 of the Act of 1958 reads as under: "provided that in the case of an assessment made under any Act repealed by section 52, the period for re-assessment on the ground of under-assessment, escapement or wrong deduction shall be as provided in such Act notwithstanding the repeal thereof. " Proviso to section 19 and that to section 52 were the subject-matter of interpretation in two judgments of the Supreme Court reported in The Sales Tax officer, Jabalpur v. Hanuman Prasad (1967 MPLJ138= air 1967 SC 565 ) and The Commissioner of Sales Tax M. P. v. M/s. Amarnath Ajitkumar (1973 M P L T l69=air l972 SC 387 ). In the former case, the return of the assessee related to a period prior to the commencement of the Act of 1958, the assessment order was passed on 23-5-1969, after the repeal of the C. P. and Berar sales Tax Act, 1947 by which the assessee was then governed, and the assessee was sought to be reassessed under the repealing Act on 23-10-1962, more than 3 years after the original order of assessment. The repealed Act provided under section 11-A a limitation of three years for assessment of escaped turn over. The repealing Act provided a period of five years under section 19 (1 ). The repealed Act provided under section 11-A a limitation of three years for assessment of escaped turn over. The repealing Act provided a period of five years under section 19 (1 ). Their Lordships of the Supreme Court held that the matter was governed by the limitation prescribed under the repealed Act and the reassessment proceedings were barred by time. The pertinent observations are in paras 3, 4 and 5 of the judgment. Para. 3 has been reproduced by the Honble the Chief Justice in para. 15 of his judgment. ( 35. ) IN the second case, the assessment M/s. Amarnath Ajitkumar had filed his return for the year 1957-58 under the Madhya Bharat Sales Tax Act and he was assessed on 28-11-1961. On 30-10-1964, the Commissioner of Sales Tax initiated proceedings under section 39 (2) of the Madhya Pradesh General Sales tax Act, 1958, for revising the assessment made. The question arose whether the period for revision was governed by section 12 (1) of the Madhya Bharat act since repealed, or whether the provisions of the repealing Act applied. It was held by the Supreme Court following Hanuman Prasads case that the right of the assessee under section 12 of the repealed Act was saved by section 52 of the new Act and the period of limitation as prescribed by section 12 (1) of the madhya Bharat Act was applicable. The Honble the Chief Justice has quoted the observations of their Lordships of the Supreme Court in para. 17 of his judgment. ( 36. ) THE authorities, as I have understood then clearly suggest that the repeal of the C. P. and Berar Act or the Madhya Bharat Act did not affect the right already acquired or accrued thereunder. Both the assessee and the Department got a vested right to see that an order of assessment was made under the repealed Act, if the turnover related to that period, and was not revised to their prejudice after the lapse of the period of limitation prescribed under that Act. ( 37. ) THE Honble the Chief Justice while accepting the propositions of law enunciated in these authorities sought to distinguish them on quite a different ground. ( 37. ) THE Honble the Chief Justice while accepting the propositions of law enunciated in these authorities sought to distinguish them on quite a different ground. His Lordship says that the provisions of section 52 make a distinction between the proceedings, appeals, second appeals, revisions and references pending on the date of the repeal, and those arising under the repealed Acts but preferred after the commencement of the repealed Act. Whereas the pending matters were required to be disposed of in accordance with the provisions of the repealed Act, the appeals which were preferred after the commencement of the new Act were to be disposed of in accordance with the provisions of the new act. In view of the provision contained in sub-section (4) of section 52 of the new Act, the learned Chief Justice says, the appeal and the second appeal preferred after the commencement of the new Act would be governed by the new act. Though the sub-section does not expressly mention a revision, but on analogy, it would also be covered. ( 38. ) WITH due deference, I would disagree. Sub-section (4) to section 52 reads thus : "notwithstanding anything contained in sub-section (1), any first appeal or any second appeal arising under any of the said Acts (i. e. repealed Acts) but preferred after the commencement of this Act, shall be heard and decided, in case of first appeal, by the officer competent to entertain first appeal under sub-section (1) of section 38, and in case of second appeal, by the Tribunal, in accordance with the provisions of this Act. " In my constructions of the provision, it seeks to provide forums for first and second appeals, as are constituted under the new Act. An assessee or the department, having a subsisting right of appeal arising under the repealed Act, can approach that forum. No new rights are created in favour of the assessee or the Department under this sub-section. The rights to appeal must accrue to either under the repealed Act and that right must be a subsisting right. If the right is allowed to lapse by limitation under the repealed Act, that is lost for good. No new rights are created in favour of the assessee or the Department under this sub-section. The rights to appeal must accrue to either under the repealed Act and that right must be a subsisting right. If the right is allowed to lapse by limitation under the repealed Act, that is lost for good. The words in accordance with the provisions of this Act could not be construed to mean that the period of limitation prescribed under the repealed act has been abrogated and substituted for the one provided under the new Act. The words only qualify the forums prescribed under section 38 of the new Act. What is meant is that the appellate authorities would be the person, or the tribunal, as appointed in accordance with the new Act. I am also of the view that the provisions of sub-section (4) of section 52 could not be made applicable on analogy to revisions. The revisions have been provided for in section 39 and that section alone will govern the filing of revisions. ( 39. ) A distinction was sought to be drawn by the learned counsel for the petitioner between the powers of revision the Commissioner of Sales Tax exercised under section 39 (2) and the revision petition he entertained from an aggrieved assessee under section 39 (1 ). The former provision, i. e. section 39 (2), did not prescribe any period of limitation but only took away the power of the commissioner to revise any assessment after the prescribed period. The latter provision i. e. section 39 (1) prescribed a period of limitation within which the assessee has to file his revision petition. Rule of limitation, the learned counsel says, is prima facie a rule of procedure and none has a vested right in a period of limitation. After the repeal of the old Act, the right of revision prescribed to the assessee would be governed by the new Act in the matter of limitation. ( 40. ) I cannot really appreciate the distinction. After the repeal of the old Act, the right of revision prescribed to the assessee would be governed by the new Act in the matter of limitation. ( 40. ) I cannot really appreciate the distinction. In the two Supreme Court cases referred to above, the assessment orders were made after the repealing Act had come into force and the re-assessment and the revision proceedings were initiated within the period prescribed under the new Act, yet the Supreme Court was pleased to hold that since the assessment related to a period covered by the repealed Act, the assessment would be governed by the provisions of that Act in the matter of limitation. Call it a prescribed period or a period of limitation within which the Commissioner has to exercise his power of revision, and on the lapse of the period, the assessee gets a vested right, and so does the Revenue, it is so different from the right of an assessee to file a revision petition, if he is aggrieved by an order of assessment, within the prescribed period, failing which the order assumes finality and the Revenue gets a vested right to see that the order is not altered to their prejudice. In both type of cases, the prescribed period under the old Act (if the assessment relates to turnover of a period prior to the repeal of the Act) should govern the assessee and the Department. ( 41. ) PROVISO to section 52 of the Madhya Pradesh General Sales Tax Act, 1958, was considered in Nathulal Chhotelal v. Deputy Commissioner of Sales tax ( 1962 MPLJ 653 = (1962) 13 STC 853.) and it was held that the proviso saves all rights acquired, including a right of appeal, and that there was no intention of abrogating or impairing that right. A right of revision likewise under the repealed Act was in the nature of a vested right which could not be taken away or impaired save by express words or necessary implication. To the same effect is the statement of law made by dixit J. in K. S. Nazar All Mills Ltd. v. Commissioner of Sales Tax, Indore (1958 MPIJ 282= (1959) 10 ST C 117.) "an assessment proceeding, an appeal, a revision are all inter connected steps in one legal proceeding. To the same effect is the statement of law made by dixit J. in K. S. Nazar All Mills Ltd. v. Commissioner of Sales Tax, Indore (1958 MPIJ 282= (1959) 10 ST C 117.) "an assessment proceeding, an appeal, a revision are all inter connected steps in one legal proceeding. A right of reference to the High Court is not a mere matter of procedure but is a substantive right which vested in a dealer under the law prevailing at the date of initiation of assessment proceedings. " A right of revision was vested right with the assessee when the assessment proceedings were initiated under the repealed Act and that right was saved under section 52 (1) of the new Act. It logically follows that the right of revision could be exercised within the period prescribed under the old Act unless the new Act expressly enlarged or abrogated that right. Proviso to section 52 (1)saves liability incurred under the repealed Act, with a corresponding right to go up in appeal or revision, and where there is a conflict between the provisions of the repealing Act and the repealed Act, the proviso says that the provisions of the repealed Act shall govern. In the present case, there is undoubtedly a conflict in the matter of limitation and the new Act cannot be called in aid. ( 42. ) IN Amarnalh Ajitkumar v. Commissioner of Sales Tax ( (1969) 24 STC 155 .), the Division bench of this Court in para. 5 of the judgment referred to sub-section 1 (a) of section 52 of the Act and observed that the provision made it quite clear that the assessment proceedings in respect of a period whether repealed Act was in force would be governed by substantive as well as remedial and procedural provisions of the repealed Act. To the same effect is the judgment in M/s. Gopaldas Khimaji Trading company v. The Commissioner of Sales-tax (1970 MPLJ 57. ). The right of second appeal claimed under the new Act was denied to an assessee who was assessed for a turnover of the year 1957-58 on 18-12-1962 under the repealed Madhya Bharat Act, which provided for only one appeal. If a right of second appeal were treated as a procedural matter not affecting substantive right, the Court would have applied the new Act. ( 43. If a right of second appeal were treated as a procedural matter not affecting substantive right, the Court would have applied the new Act. ( 43. ) IN my view, therefore, a right of revision available to an assessee on assessment or reassessment in respect of a turnover when the repealed Act was in force, would be governed by the repealed Act, and the limitation prescribed therein would be attracted. The petitioners revision to the Commissioner was rightly rejected as barred by time. He is not entitled to any relied in this writ petition. The writ petition deserves to be dismissed. ( 44. ) THIS petition under Articles 226 and 227 of the Constitution has been placed before me on a difference of opinion between Tare C. J. and Malik J. The only question is whether the revision petition filed by the assessee-petitioner before the Commissioner of Sales Tax, Indore, was made within the prescribed time. ( 45. ) THE facts and the circumstances in which the above question arose, may be briefly stated. The petitioner who carries on the business of buying and selling Kirana goods in the name and style of M/s. Daluram Pannalal Modi at Ratlam, as a dealer registered under the Madhya Bharat Sales Tax Act, 1950 (Act No. 30 of 1950), was, by order dated February 23, 1959, assessed by the sales Tax Officer, Ratlam, in respect of his turnover for the year 1957-58 (i. e. for the period 1-4-1957 to 31-3-1958 ). He was held liable to pay Rs. 29,485 which amount of tax be deposited in the Treasury. ( 46. ) ON December 31, 1960, the Regional Assistant Commissioner of Sales Tax, indore Region, Indore, issued to the petitioner a notice under section 19 (l)of the m. P. General Sales Tax Act, 1958 (No. 2 of 1959), read with section 14 (1) (e) of the Madhya Bharat Act, to show cause why he should not be re-assessed and why penalty should not be imposed upon him. It was stated in the notice that he (Regional Commissioner) was satisfied that the petitioners sale during the period from 1-4-1957 to 31-3-1958 had been under-assessed and had escaped assessment, which rendered him liable to be reassessed under section 19 (1) of the Madhya Pradesh Act and rendered himself liable to penalty under section 14 (1) (e) of the Madhya Bharat Act. ( 47. ( 47. ) BY order dated March 31, 1961, the Assistant Commissioner, on reassessment, enhanced the amount of the tax payable by the petitioner, by Rs. 31,250 and also imposed upon him a penalty of Rs 15,000. ( 48. ) AGGRIEVED by the order dated March 31, 1961, the petitioner filed a revision petition on March 31, 1962, to the Commissioner of Sales Tax, Indore, under section 39 (1) of the Madhya Pradesh Act (Sales Tax Revision No. 323/r M. of 1962-63.) By his order dated October 27, 1969, the Commissioner dismissed the revision as barred by time, holding that the revision really lay under section 12 (2) of the Madhya Bharat Act and consequently it was barred by time inasmuch as it was presented beyond the period of six months prescribed by that section. The revision was not considered on merits. ( 49. ) AGGRIEVED by the above order of the Commissioner, this petition was filed. It was heard by a Division Bench of Tare C. J. and Malik J. The learned chief Justice has held that the remedy under section 39 (1) of the Madhya pradesh Act was available to the petitioner for which the period of limitation is one year. He, therefore, held the revision as within limitation. On the other hand, Malik J. started on the hypothesis that the re-assessment for the period covered by the repealed Act, though made after the commencement of the Act in 1958, would be governed by the provisions of the repealed Act. According to him, inasmuch as the original assessment was made under the repealed Act, the proceedings for re-assessment would also be governed by the repealed Act. He has held that "a right of revision available to an assessee on assessment or reassessment in respect of turnover, when the repealed Act was in force, would be governed by the repealed Act and the limitation prescribed therein would be attracted. The petitioners revision to the Commissioner was rightly rejected as barred by time. " He has inter alia quoted the following observations in k. S. Nazir Ahmed Mills Ltd. v. Commissioner of Sales Tax, Indore ( 1958 MPLJ 282 = (1959) 10 ST C 117.): - "as assessment proceeding, an appeal, a revision are ail interconnected steps in one legal proceeding. " He has inter alia quoted the following observations in k. S. Nazir Ahmed Mills Ltd. v. Commissioner of Sales Tax, Indore ( 1958 MPLJ 282 = (1959) 10 ST C 117.): - "as assessment proceeding, an appeal, a revision are ail interconnected steps in one legal proceeding. The right of reference to the High Court is not a mere matter of procedure but is a substantive right, which vests in a dealer under the law prevailing at the date of the initial assessment proceeding " ( 50. ) FOR the sake of brevity, the Madhya Bharat Act will, hereinafter be called the repealed Act, and the Madhya Pradesh Act, the Existing Act. The madhya Bharat General Sales Tax Act (No. 30 of 1950) was in force when the assessee was initially assessed and it remained in force until April 1, 1959, when the M. P. General Sales Tax Act (No. 2 of 1959) came into force, and the said madhya Bharat Act was repealed by section 52 of the new Madhya Pradesh act. Thus, it will be seen that when the assessee was initially assessed on february 3, 1959, all proceedings for assessment upto that date were governed by the repealed Act. The notice to reopen assessment was issued on december 13, 1960, under section 19 (1) of the existing Act. ( 51. ) CLEARLY, five questions arise which cannot be confused: - (1) Under which provision lies the power to reopen assessment and re-assess the tax payable by the dealer? (2) Which provision will apply to see the time limit, i. e. after which period assessment cannot be reopened? (3) When assessment is reopened, which Act will govern the liability of the assessee; for instance, the formalities to be complied with by him, the rate of tax applicable to him, and so on? (4) Under what provision will a revision lie from the order passed in the re assessment proceedings? (5) Which rule of limitation will govern such revisions? ( 52. ) THE Assistant Commissioner issued a notice to the assessee under section 19 (1) of the existing Act (M. P. Act ). (4) Under what provision will a revision lie from the order passed in the re assessment proceedings? (5) Which rule of limitation will govern such revisions? ( 52. ) THE Assistant Commissioner issued a notice to the assessee under section 19 (1) of the existing Act (M. P. Act ). Omitting unnecessary portions, the section reads thus:- " (1) Where an assessment has been made under this Act or any Act repealed by section 52 and if for any reason any sale or purchase of goods chargeable to tax under this act or any Act repealed by section 52, during any period has been under assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment. . . proceed. . . to re-assess the tax payable by such dealer and the commissioner may direct that the dealer shall pay, by way of penalty. . . . . Provided that in the case of an assessment made under any Act repealed by section 52, the period for re-assessment on the ground of under-assessment, escapement or wrong deduction shall be as provided in such Act notwithstanding the repeal thereof. " ( 53. ) UNDER section 10 of the repealed Act, power was conferred on the sales Tax Officer. Under section 19 (1) of the existing Act, this power has been conferred on the Commissioner, who can delegate it to the Assistant Commissioner by virtue of section 39 of the existing Act. The words "or any Act repealed by section 52" which I have underlined [while reproducing section 19 (1)] leave no manner of doubt that the power to reopen assessment is conferred by this section. The words "or any Act repealed by section 52" were inserted by the Amendment Act (No. 23 of 1963) and they were given retrospective effect from April 1, 1959, i. e. the date on which the existing Act itself came into force. The words "or any Act repealed by section 52" were inserted by the Amendment Act (No. 23 of 1963) and they were given retrospective effect from April 1, 1959, i. e. the date on which the existing Act itself came into force. The insertion of these words has made it abundantly clear that so far as the power to reopen assessment under section 19 (1) is concerned, there is no difference and there was never any difference, between an assessment which is made under the existing Act and an assessment which is made under the Acts repealed by section 52, the Madhya Bharat Act being one of them. These words were introduced studiously and to avoid possible complications. In view of the clear language original proceedings of filing return and assessment were under the repealed Act (Madhya Bharat Act), the reopening of the assessment will also be under the repealed Act. It will not be out of place to mention that in the statement of objects and reasons appears the following passage: "a doubt has been expressed that under section 19 (1) of the Madhya Pradesh General sales Tax Act, 1959, only those sales could be re-assessed which are chargeable to tax under the said Act, and not under the Acts repealed under section 52 thereof. In order to remove the lacuna and avoid possible complications, it was considered necessary to amend section 19 suitably with retrospective effect so as to enable assessment of turnover escaping assessment under this Act as well as under the repealed Acts. As the matter was urgent the Madhya Pradesh General Sales Tax (Second Amendment) Ordinance, 1963 (14 of 1963) was promulgated. " (See M. P. Act No. 31 of 1963, M. P. General Sales Tax (2nd Amendment) Bill, 1963, which eventually became the above Amendment Act ). ( 54. ) I shall now advert to the proviso by virtue of which an exception has been carved, although it is not directly relevant to this first question. If the proviso were not there, assessment could be reopened within five calendar years from the date of the order of assessment and this would have been so whether the original assessment had been made under the existing Act or under the repealed Act (e. g. Madhya Bharat Act), because that is the period fixed under section 19 (1 ). If the proviso were not there, assessment could be reopened within five calendar years from the date of the order of assessment and this would have been so whether the original assessment had been made under the existing Act or under the repealed Act (e. g. Madhya Bharat Act), because that is the period fixed under section 19 (1 ). The power to reopen assessment cannot be exercised after the said period of five years. Now, the proviso substitutes in the section that period for assessment which was provided in the repealed Act, for the said period of "five calendar years from the date of the order of assessment" in section 19 (I ). The language of the proviso is clear, certain and unambiguous. The only purpose of this proviso is to substitute the period of five calendar years" in the section, by that period which was prescribed in the respective Acts which have been repealed by section 52 of the existing Act. To put it differently, and to read section 19 (1) along with the proviso, it comes to this that in the case of an assessment made under the Madhya Bharat Act, the power to reopen assessment under section 19 (1) can be exercised within three calendar years from the date of the order of assessment. ( 55. ) IN The Commissioner of Income-tax, Mysore v. The Indo Mercantile bank Ltd. ( AIR 1959 SC 713 .), it was held: - "the proper function of a proviso is that it 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 main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. " "the territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. " "the territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. " ( 56. ) IF the proviso to sub-section (I) of section 19 had not been enacted, assessment proceedings could be initiated under section 19 (1) of the existing act, at any time within five calendar years, that is to say, even after three years, which was the time allowed under the Madhya Bharat Act. This would have been because of the generality of the main section. Thus the proviso has merely curtailed that period which is fixed in the general provision. It has carved out an exception where assessment had been made under a repealed Act, for instance, the Madhya Bharat Act. The effect of the proviso is that on the expiry of three years, there will be no power to reopen an assessment which had been made under the Madhya Bharat Act. In that sense, it is a saving clause. In Shah Bhojraj Kuverji Oil Mills v. Subhash Chandra Yograj ( AIR 1961 SC 1596 ), their Lordships said:- "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. But provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses in which cases they will not be construed as controlled by the section. The saving clauses are introduced into Acts which repeal others, to safeguard rights which, but for the savings, would be lost. " It is absolutely beyond doubt that in the wording of the proviso, under which it can operate, is circumscribed only one aspect of section 19 (1), namely, the period for re-assessment and it has no effect or relevance on the "power to reopen assessment" conferred on the Commissioner under section 19 (1 ). ( 57. " It is absolutely beyond doubt that in the wording of the proviso, under which it can operate, is circumscribed only one aspect of section 19 (1), namely, the period for re-assessment and it has no effect or relevance on the "power to reopen assessment" conferred on the Commissioner under section 19 (1 ). ( 57. ) IN Sri Ram Ram Narain v. State of Bombay ( AIR 1959 SC 459 ), N. H. Bhagwati, J. , speaking for the Court, in emphatic terms, said thus: - "if the language of the enactment is clear and unambiguous it would not be legitimate for the Courts to add any words thereto and evolve therefrom some sense which may be said to carry out the supposed intentions of the Legislature. The intention of the Legislature is to be gathered only from the words used by it and no such liberties can be taken by the Courts for effectuating a supposed intention of the Legislature. " In Commissioner of Sales Tax v. M/s Person Tools and Plants Kanpur ( AIR 1975 SC 1039 .), their lordships said:- we will close the discussion by recalling what Lord Hailsham in Pearl Merg v. Varty ( (1972) 2 Aller 6 at p. 11)has said recently in regard to importation of the principles of natural justice into a statute which is a clear and complete Code, by itself: it is true of course that the Courts will lean heavily against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision then a statute accords him. Still less is the functioning of the Courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment. Still less is the functioning of the Courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment. " Further, their Lordships have emphatically expressed themselves thus:-"we have said enough and we may say it again that where the Legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law giver; more so if the statute is a taxing statute. " In Indira Sohanlal v. Custodian of Evacuee Property (AIR 1958 SC 77.) ,their Lordships have exposed the rule as to the applicability of a fresh legislation and exclusion of section 6 of the General Clauses Act thus :- "we cannot therefore subscribe to the broad proposition that section 6, General clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law. * * * * * therefore where, as in this case, the repealing section which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms the said provision may well be taken to be self-contained and indicative of the intention to exclude the application of section 6, General Clauses Act. We are, therefore, of the opinion that the said section cannot be called in aid in this case. " Applying the dictum to section 19 (1) of the existing Act, it is abundantly clear that that section has been made specifically and studiously applicable to reopening of assessment even though the initial assessment was made under the repealed act; otherwise, the words "or any Act repealed by section 52" will be otiose. " Applying the dictum to section 19 (1) of the existing Act, it is abundantly clear that that section has been made specifically and studiously applicable to reopening of assessment even though the initial assessment was made under the repealed act; otherwise, the words "or any Act repealed by section 52" will be otiose. However, the only restriction which has been imposed is contained in the proviso that the assessment cannot be reopened after three years. ( 58. ) MALIK J. in his opinion, starts with the following observations (see para. 3):- "it cannot be a matter of controversy that the re-assessment for the period covered by the repealed Act, though made after the commencement of the Act of 1958, would be governed by the provisions of repealed Act. " With respect, that is the real controversy and that is the crucial point. ( 59. ) MALIK J. has relied on the proviso to section 19 and has underlined the words "shall be as provided in such Act notwithstanding the repeal thereof". It seems to me clear that the words also to be underlined are "the period for re-assessment" inasmuch as the whole object of the proviso is to carve out an exception to section 19 (1), in so far as it contained the period for re-assessment. ( 60. ) MALIK J. has relied on two decisions of the Supreme Court. In the sales Tax Officer, Jabalpur v. Hanuman (1967 M P L J= air 1967 SC 565 .), the period of assessment was prior to 1958. The assessment order was passed on May 23, 1959, after the repeal of the c. P. and Berar Sales Tax Act, 1947, by which the assessee was then governed. It was on October 23, 1962, i. e. , more than three years after the original order of assessment, that the assessee was sought to be re-assessed under the repealing act. Under the repealed Act, the period within which assessment could be reopened was fixed at three years. Their Lordships observed: - "consequently, even if it be held that the effect of the Amending Act was that, under the principal clause of section 19 (1), the reassessment of the under-assessed or escaped turnover in the case of the respondent could be taken up within a period of five calendar years, that provision became ineffective because of the continued existence of the proviso. " Thus, their Lordships held that the re-assessment could not be reopened beyond three years, although under the repealing Act the period for assessment is five years. This case applies squarely to question No. 2. As discussed by me above, that ruling relates to the "period" and not to the "power" to re-assess or the proceedings for re-assessment, which matter I have discussed under question no. 1. The two questions, as already discussed, are quite different and cannot be confused. The effect of the proviso is not to prescribe any period of limitation but to take away the power of the Commissioner vested in him under section 19 (1), on the expiration of 3 years from the date of assessment. ( 61. ) THE other case relied on is Commissioner of Sales Tax, M. P. v. M/s. Amarnath (1973 MPL J= air 1972 SC 38 . ). In that case, the accounting period was from July 1, 1957, to March 31, 1958. Returns were filed on January 30, 1958, and June 17, 1958. The existing Act (M. P. Act) came into force on April 1, 1959. Assessment order was passed on November 28, 1961, evidently under the repealed Act. On october 30, 1964, the Commissioner of Sales Tax initiated proceedings under section 39 (2) of the existing Act for revising the assessment. On April 15, 1965, the order of revised assessment was made. ( 62. ) THEIR Lordships held that under section 12 (1) of the repealed Act (Madhya Bharat Act), the Commissioner could not in his discretion, suo motu, or being moved by the assessing authority, revise an order of assessment, as it had been made more than two years previously. In reaching that conclusion, section 52 of the existing Act was quoted and it was held that after the expiry of two years from the date of the initial assessment order, it became final and conclusive and a right was vested in the assessee. That right was saved and preserved by section 52. That being so, the proviso to section 39 (2) (under which the period prescribed is three years) could not apply. Thus, the ratio of that case is that after the right vests in a party, that right is saved under section 52 of the existing Act. That right was saved and preserved by section 52. That being so, the proviso to section 39 (2) (under which the period prescribed is three years) could not apply. Thus, the ratio of that case is that after the right vests in a party, that right is saved under section 52 of the existing Act. And, in this case, it was held that the bar on the power of the Commissioner from exercising the powers under section 12 (1) of the Madhya Bharat Act, after the prescribed period, conferred on the assessee a right. Thus, it can be seen that this case was also on the question whether after the expiry of the period (prescribed under the repealed Act) during which assessment could be reopened, could assessment be reopened within the period prescribed under the existing Act, the latter being longer. That dictum would have been attracted here if, after the expiry of the period of three years from the date of the original assessment order the Assistant Commissioner had reopened assessment. But that was not the case here. Therefore, the proviso to section 19 (1) of the existing Act did not come in the way. There are no words in section 39 (2) like "under any Act repealed by section 52", as in section 19 (1 ). ( 63. ) I am clearly of the view that the power to reopen assessment is there under section 19 (1) of the existing Act and the re-assessment proceedings will be under that section, provided the proceedings for reassessment are initiated before the expiry of three years from the date of the assessment order, and that was the case here. ( 64. ) THE result of this discussion is that the power to reopen assessment, will be governed by section 19 of the existing Act, and not by the repealed Act. ( 65. ) AS already discussed above, in the case of an assessment made under the Madhya Bharat Act, the period within which assessment can be reopened (on the ground of under assessment escapement or wrong deduction) is curtailed to three years, notwithstanding that the Madhya Bharat Act has been repealed by section 52. Thus, although, the power of re-assessment shall be exercised under the existing Act, that power can be exercised only within three years prescribed under the repealed Act. Thus, although, the power of re-assessment shall be exercised under the existing Act, that power can be exercised only within three years prescribed under the repealed Act. This is the effect, and the only effect, of the proviso to section 19 (1) of the existing Act. ( 66. ) THE third question is altogether different from the first two. They cannot be confused. It is the vested right of the assessee that his tax liability will be determined under that Act under which assessment proceedings were initiated. Thus, the questions, such as what goods were taxable and what goods were not taxable; what deductions were allowable and what rate of tax was applicable; etc. will be determined by the law which was in force at the original assessment. In the case of those enactments, which were repealed by section 52, that right was saved by its proviso and its non obstante clause. ( 67. ) IT is a celebrated principle that a substantive law is prospective unless retrospective effect is specifically given by the Legislature; and a procedural law is not only prospective but also applies to all pending proceedings, unless the legislature specifically declares that it will be only prospective. On the above principle and also having regard to the provisions of section 52, the rate to be applied in case of re-assessment would be that which was applicable to the particular assessee under the repealed Act. This has been made clear by enacting sub-section (2) of section 19 of the existing Act. But this is quite different from the power of re-assessment which has been conferred under subsection (1) of section 19 and which has been discussed under the first question. ( 68. ) AS soon as we reach the conclusion that the power and proceedings of reopening assessment will be under section 19 (1) of the existing Act, the fourth question, is promptly answered by section 39 (1) of the existing Act. ( 68. ) AS soon as we reach the conclusion that the power and proceedings of reopening assessment will be under section 19 (1) of the existing Act, the fourth question, is promptly answered by section 39 (1) of the existing Act. It reads thus:- "the Commissioner may, either of his own motion or on application by a dealer or person made within the prescribed period from the date of the order, call for the record of the proceeding in which any order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, as he considers necessary and subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the dealer or person, as he thinks fit. Provided that the Commissioner shall not revise any order under this sub-section- (a) Where an appeal against the order is pending before any authority prescribed in sub-section (1) of section 38, or where if such appeal lies, the time within which it may be filed has not expired; or (b) where a second appeal against the order has been filed. " Under this section, a revision lies from every order, subject to two exceptions: (i) where an appeal lies under section 38 and such appeal has been preferred or the time prescribed for it has not expired; and (ii) where a second appeal against the order has been filed. Once the power is exercised under section 19 of the existing Act, a revision from that order will lie under the revisional powers conferred under the existing Act. There is no provision to the contrary. Revision is a procedural matter. ( 69. ) THIS is not a case where the proceedings for re-assessment had been initiated under the repealed Act and were pending on April 1, 1959. If that had been so, by virtue of sub-section (3) of section 52, the right of revision would have been governed by the repealed Act. Under that clause, revisions as well are saved. The words employed are "any application for revision made under any of the said Acts and pending at the commencement of this Act, shall continue to be governed by the provisions of the Act and the Rules under which such proceedings were preferred and made. . . Under that clause, revisions as well are saved. The words employed are "any application for revision made under any of the said Acts and pending at the commencement of this Act, shall continue to be governed by the provisions of the Act and the Rules under which such proceedings were preferred and made. . . as if the said Act and the Rules had not been repealed. " To this limited extent, revisions have been saved, that is, only those revisions were saved from the provisions of the existing Act which had been not only initiated but were also pending on April 1, 1959. I have already discussed the implications and distinct effect of section 39 (2) of the existing Act. ( 70. ) THEREFORE, from a re-assessment order passed under section 19 (1) of the existing Act, a revision will lie under section 39 (1) of that Act. ( 71. ) THE fifth question presents no difficulty whatever. If, applying the above tests, a revision falls under section 39 (1) of the existing Act, the period of limitation will be under Rule 57 (4) of the M. P. General Sales Tax Rules, 1959. The prescribed period of limitation is 12 months from the date of the order against which it is filed. On the other hand, if the revision has been under the Madhya Bharat Act, the period of limitation is six months. ( 72. ) THE above discussion may be summed up thus : - (1) The words "or any Act repealed by section 52" in the opening sentence of section 19 (1) of the M. P. General Sales Tax Act, 1958, make it doubtless that the power conferred on the Commissioner under that section will apply even to a case where the original assessment had been made under the Madhya Bharat Sales Tax Act (which was repealed by section 52 of the existing Act ). Where such assessment is reopened after April 1, 1959, the proceedings for re-assessment will be under section 19 (1) of the existing Act. (2) By virtue of the proviso to section 19 (1) of the Madhya Pradesh act, such assessment could be reopened within three years of the original order of assessment, but not thereafter. The proviso carves out an exception to the "period" of five years in section 19 (1 ). (2) By virtue of the proviso to section 19 (1) of the Madhya Pradesh act, such assessment could be reopened within three years of the original order of assessment, but not thereafter. The proviso carves out an exception to the "period" of five years in section 19 (1 ). However, the field of operation of the proviso is circumscribed to the question of the period for reopening assessment. The proviso has nothing to do with the "power to reopen assessment. (3) In re-assessment also, the tax liability will be governed by the madhya Bharat Act; for instance, the articles taxable, the articles exempted, deductions, etc. This is by virtue of the saving clause contained in section 52 of the M. P. Act. See, for instance, sub-section (2) of section 19. (4) An order under section 19 (1) will be revisable under section 39 of the Madhya Pradesh Act and not under the Madhya Bharat Act. The non obstante clause contained in sub-section (3) of section 52 of the Madhya pradesh Act saves only such revisions as had been filed under the repealed (Madhya Bharat) Act and were pending at the date of the commencement of the Madhya Pradesh Act. (5) The period of limitation for a revision under section 39 of the madhya Pradesh Act is one year under Rule 57 (4) of the M. P. General sales Tax Rules, 1959, while the period of limitation for a revision under the madhya Bharat Act was six months from the date of the order of reassessment. ( 73. ) FOR my reasons stated above, I agree with Tare C. J. , in the conclusion reached by him. 1 hold that the revision filed by the assessee before the Commissioner was within the purview of section 39 of the Madhya Pradesh Act and was, therefore, within time. Revision filed within one year held to be in lime.