- (1.) On 28-11-1947, the appellant Hoosein Kasam Dada (India) Ltd., (hereinafter referred to as the assessee) submitted to the Sales Tax Officer, Akola, a Sales Tax return in Form IV for the first quarter. Notice in Form XI calling upon the assessee to produce evidence in support of the said return having been issued by the Sales Tax Officer, the assessee produced is account books. Not being satisfied by the inspection of the account books as to the correctness of the return and being of opinion that the taxable turnover exceeded rupees two lacs the Sales Tax officer submitted the case to the Assistant Commissioner Sales Tax, Amravati, for assessment. On 25-1-1949 the Assistant Commissioner issued a fresh notice in Form XI under S. 11 and fixed the case for disposal on 5-2-1949. After various adjournments and proceedings to which it is not necessary to refer the hearing commenced on 9-6-1949 when an agent of the assessee appeared with books of account of the Akola Branch. Eventually after various further proceedings the Assistant Commissioner on 8-4-1950 assessed the assessee, to the best of his judgment, in the sum of Rs. 58,657-14-0 and a copy of the order in Form XIV was sent to the assessee. Being aggrieved by the order of assessment the assessee on 10-5-1950 preferred an appeal to the Sales Tax Commissioner, Madhya Pradesh, under S. 22 (1), Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Act). The appeal not having been accompanied by any proof of the payment of the tax in respect of which the appeal had been preferred the authorities, after giving the assessee several adjournments, declined to admit the appeal. The assessee moved the Board of Revenue, Madhya Pradesh, by a revision application against the order of the Sales Tax commissioner contending that his appeal was not governed by the proviso to S. 22 (1) of the Act as amended on 25-11-1949 by the Central Provinces and Berar Sales Tax (Second Amendment) Act (Act 57 of 1949) but was governed by the proviso to S. 22 (1) of the Act as it stood when the assessment proceedings were started, i.e., before the said amendment. The Board of Revenue took the view that as the order of assessment was made after the amendment of the section and the appeal was filed thereafter such appeal must be governed by the provisions of law as it existed at the time the appeal was actually filed and that the law as it existed before the filing of the appeal could not apply to the case. The assessee thereupon moved the High Court of Madhya Pradesh under Arts. 226 and 227 of the Constitution of India praying, amongst other things, for a writ of mandamus or an appropriate order directing the sales Tax Commissioner to admit and hear the appeal without demanding payment of the amount of sales Tax assessed by the Assistant Commissioner of sales Tax. The High Court dismissed the application on 2-8-1951. The assessee applied to the High Court for leave to appeal to this Court which was also dismissed by the High Court on 14-3-1952. The assessee thereupon applied to this Court for special leave to appeal on 12-5-1952. This Court granted special leave to appeal, but such leave was, by the order granting such leave, limited to the question of the effect of the amendment to S. 22 of the Act on the petitioner's appeal to the sales Tax Commissioner, Madhya Pradesh. This Court took the view that the other questions sought to be raised by the assessee would have to be decided by the sales Tax Commissioner in case the appeal succeeded. The appeal has now come up for final disposal before us and in this appeal we are concerned only with the limited question of the effect of the amendment to S. 22 of the Act.
(2.) Section 22 (1) of the Act was originally express in the following terms: "22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal, to the prescribed authority against the order: Provided that no appeal against an order of assessment, with or without penalty, shall be entertained by the said authority unless it is satisfied that such amount of tax or penalty or both as the appellant may admit to be due from him, has been paid." The relevant portion of S. 22 as amended runs as follows: "22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order: Provided that no appeal against an order of assessment with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred." It is clear from the language used in the proviso to S. 22 (1) as it stood prior to the amendment that an aggrieved assessee had only to pay such amount of tax as he might admit to be due from him, whereas under the proviso to S. 22 (1) as amended the appeal has to be accompanied by satisfactory proof of payment of the tax in respect of which the appeal had been preferred. The contention of the present assessee is that as the amendment has not been made retrospective its right of appeal under the original S. 22 (1) remains unaffected and that accordingly as it does not admit anything to be due it was not liable to deposit any sum along with its appeal and the Commissioner was bound to admit its appeal and had no jurisdiction or power to reject it on the ground that it had not been accompanied by any proof of payment of the tax assessed against the appellant as required under the amended proviso and the Board of Revenue and the High Court were in error in not directing the Commissioner to admit the appeal.
(3.) That the amendment has placed a substantial restriction on the assessee's right of appeal cannot be disputed, for the amended section requires the payment of the entire assessed amount as a condition precedent to the admission of its appeal. The question is whether the imposition of such a restriction by amendment of the section can affect the assessee's right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction under the section as it stood at the time of the commencement of the proceedings. The question was answered in the negative by the Judicial Committee in the Colonial Sugar Refining Co., Ltd. v. Irving, (1905) A. C. 369 (A). In that case the Collector of Customs acting under an Act called the Excise Tariff, 1902 required the appellants to pay 20,100 excise duty on 6,700 tons of sugar. The appellants disputed the claim. So they deposite the money with the Collector and then brought the action by issuing a writ on 25-10-1902. A special case having been stated for the opinion of the Supreme Court, that Court on 4-9-1903 gave judgment for the Collector. In the meantime the Judiciary Act, 1903 was passed and received Royal assent on 25-8-1903, that is to say about 10 days before the judgment was delivered. By S. 39 (2) of that Act, the right of appeal from the Supreme Court to the Privy Council given by the Order in Council of 1860 was taken away and the only appeal therefrom was directed to lie to the High Court of Australia. The appellants having with the leave of the Supreme Court filed an appeal to the Privy Council the respondents filed a petition taking the preliminary point that no appeal lay to the Privy Council and praying that the appeal be dismissed. In dismissing that application Lord Macnaghten who delivered the judgment of the Privy Council said: "As regards the general principles applicable. to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure if it touches a right in existence at the passing of the Act, it was conceded that, in according with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.";