GOPALDAS KHIMJI TRADING COMPANY Vs. COMMISSIONER OF SALES TAX
LAWS(MPH)-1969-11-10
HIGH COURT OF MADHYA PRADESH
Decided on November 17,1969

GOPALDAS KHIMJI TRADING COMPANY Appellant
VERSUS
COMMISSIONER OF SALES TAX Respondents

JUDGEMENT

- (1.) AT the instance of the assessee, the Sales Tax Tribunal has, acting under Section 44 (1) of the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter called the new Act) referred to this court for its opinion the following question of law : Whether, in the facts and the circumstances of this case, the applicant had the right to file a second appeal before the Tribunal under the provisions of the M. P. General Sales Tax Act, 1958?
(2.) THE material facts giving rise to this reference lie within a narrow compass and may be shortly stated. The applicant is a registered dealer which carries on business at Ujjain. The relevant turnover of sales made by the applicant related to the period 1st April, 1957 to 31st March, 1958. During that period, the Madhya Bharat Sales Tax Act, Satnvat 2007, was in force. It was, however, repealed by the new Act which came into force on 1st April, 1959. That turnover was actually assessed to tax on 18th December, 1962, though, as found by the Tribunal, the lis had arisen on 11th April, 1958, when a notice was issued to the applicant to show cause why, for its failure to submit returns for the period, a best judgment assessment should not be made and a penalty be not levied. Against the order of assessment dated 18th December, 1962, there was a first appeal which was dismissed by the Deputy Commissioner on 30th June, 1964. Thereafter, the applicant preferred a second appeal to the Tribunal which, on 31st December, 1965, rejected it as incompetent on the view that the lis had arisen before the new Act (which provided for two appeals) came into force, that the case was governed by the Madhya Bharat Sales Tax Act and that that Act provided for only one appeal. Subsequently, at the instance of the applicant, this reference was made.
(3.) HAVING heard the counsel, we have formed the opinion that the question referred to us must be answered in the negative. It was argued that, before the order of assessment had become final, the new Act came into force and, since it enlarged the right to go up in appeal before the superior sales tax authorities by providing for a second appeal, the assessee was entitled to avail of it. In support of this contention, reliance was placed upon Indira Sohanlal v. Custodian of Evacuee Property A. I. R. 1956 S. C. 77 and Moii Ram v. Suraj Bhan A. I. R. 1960 S. C. 655. These two authorities do not relate to tax matters and'proceed on the general principle that, unless otherwise provided, the law amended during the pendency of the proceedings in so far as it did not affect vested rights applied to them even though they had been initiated prior to the amendment. The present case was, however, governed by a contrary provision in the new Act itself, namely, the proviso to Section 52 (1), which preserved unaffected by that Act the right or liability to be assessed in accordance with the provisions of the repealed Acts in respect of turnovers of sales effected during the time when the latter were in force. So, in Sales Tax Officer v. Hanuman Prasad [1967] 19s. T. C. 87 (S. C), the Supreme Court stated : 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 ot 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 unaffected 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 be 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. " (page 90 ). It follows that, when the Madhya Bharat Sales Tax Act did not provide for a second appeal, the Tribunal rightly regarded the second appeal as incompetent.;


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