KHEM CHAND KESHRIMAL Vs. COMMISSIONER OF SALES TAX
LAWS(ALL)-1965-9-25
HIGH COURT OF ALLAHABAD
Decided on September 16,1965

KHEM CHAND KESHRIMAL Appellant
VERSUS
COMMISSIONER OF SALES TAX Respondents


Referred Judgements :-

QUEEN V. LEEDS AND BRADFORD RAILWAY CO. [REFERRED TO]
CORNILL V. HUDSON [REFERRED TO]
ATTORNEY-GENERAL V. SILLEM AND OTHERS [REFERRED TO]
GARDNER V. LUCAS [REFERRED TO]
TURNBULL V. FORMAN [REFERRED TO]
COLONIAL SUGAR REFINING COMPANY LTD. V. IRVING [REFERRED TO]
KING V. CHANDRA DHARMA [REFERRED TO]
PEGLER V. GREAT WESTERN RAILWAY CO. [REFERRED TO]
COMMISSIONER OF INCOME-TAX V. TRIBUNE TRUST, LAHORE [REFERRED TO]
COMMISSIONER OF INCOME TAX BOMBAY CITY II VS. RANCHHODDAS KARSONDAS BOMBAY [REFERRED TO]
STATE OF BIHAR VS. RADHA KRISHNA KAMALA PRASAD [REFERRED TO]


JUDGEMENT

DESAI, J. - (1.)THIS is a statement of case submitted to this Court by the Judge (Revisions) Sales Tax, U.P., at the instance of the assessee. The question referred to us is -
"Whether, on the facts of the case, the application in revision was barred by limitation by virtue of the provisions of section 10(3) prescribing the period of limitation of one year for application in revision."

(2.)OUR answer to the question, for the reasons that we shall give subsequently, is in the affirmative. We direct that a copy of the order be sent under section 11(6) of the Sales Tax Act, under the seal of the Court and the signature of the Registrar to the Judge (Revisions) Sales Tax, U.P., and the Commissioner of Sales Tax, U.P. The assessee shall pay to the Commissioner of Sales Tax, U.P., his costs of this reference which we assess at Rs. 200. Counsel's fee is assessed at Rs. 200. September 16, 1965. DESAI, C.J. - We answered in the affirmative the question formulated by the Judge (Revisions) Sales Tax, U.P., on 30th August, 1965, and said that the reasons for the answer would be given later. We now proceed to give the reasons. The material facts, as stated in the statement, are as follows :- For the assessment year 1952-53 an assessment order under the U.P. Sales Tax Act was passed on 13th October, 1953, assessing the assessee [at whose instance the Judge (Revisions) has submitted this statement, on a turnover of Rs. 14,000]. A copy of the order was despatched on 26th December, 1953, and it was received by the assessee in the first week of January, 1954. (Why the assessing officer took more than two months to despatch the copy and why it took so many days for service are not known). The assessee filed no appeal from the assessment order; instead on 12th September, 1955, it applied to the Judge (Revisions) to revise it. Previously no period of limitation was prescribed for an application for revision but the Act was amended with effect from 1st April, 1954, and now the period of limitation prescribed for an application for revision is one year from the date of service of the order complained of and the Judge (Revisions) is empowered to extend the period by six months at his discretion. Thus when the assessment order was passed and also when it was communicated to the assessee there was no period of limitation for a revision application. On 1st April, 1954, the law was changed and if it applied, the assessee was required to file a revision application within one year from the date of service of the order, i.e., by the end of the first week of January, 1955, but it filed the revision application on 12th September, 1955, and the Judge (Revisions) rejected it as barred by time.
Then at the assessee's instance the Judge (Revisions) submitted this statement. If the revision application was governed by the law of limitation in force when it was filed it was barred by time and if it was governed by the law of limitation which was in force when the impugned order was passed it was not. If the Amendment Act, which came into effect on 1st April, 1954, governed it, it was barred by time; if it did not govern it there was no other law which required it to be filed within a specified period and it could not be said to be barred by time. Therefore, the question to be answered is whether the Amendment Act governed it or not. It was in force from before 12th September, 1955, and there is nothing in it which made it not applicable to the revision application. The provision in it prescribing the period of limitation from the date of service of the order complained of makes no distinction between service before 1st April, 1954, and service after 1st April, 1954, or between an order made before 1st April, 1954, and an order made after 1st April, 1954. The words reproduced above refer as much to service effected, and an order made, before 1st April, 1954, as to service effected, and an order made, after 1st April, 1954. Every service effected and every order made, regardless of the date, is within the provision. In other words, the provision applies to every service of an order regardless of its date. This does not amount to giving retrospective effect to the Amendment Act.

"A retrospective law, in the legal sense, is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect of transactions or considerations already past. It may also be defined as one which changes or injuriously affects a present right by going behind it and giving efficacy to anterior circumstances to defeat it, which they had not when the right accrued, or which relates back to and gives to a previous transaction some different legal effect from that which it had under the law when it occurred ........... However, a statute is not regarded as operating retroactively because of the mere fact that it relates to antecedent events, or draws upon antecedent facts for its operation. A prohibition of the doing of business after a statute goes into effect is not retroactive with regard to that business, even though the business be done in pursuance of an earlier contract." (50 Am. Jur., 492-493).

(3.)AS we shall show subsequently there is no vested right to apply for revision of an assessment order under the Sales Tax Act. Further even if it were a vested right it cannot be said to be in respect of a transaction or consideration anterior to 1st April, 1954. The making of an assessment order is not a transaction or consideration giving rise to a right. Assessing a dealer to sales tax does not confer any right upon him; on the contrary it imposes an obligation or duty (to pay a certain sum of money) upon him. Therefore, it cannot be said that the Amendment Act takes away or impairs a vested right acquired or creates a new obligation in respect of a transaction or consideration already past or that it goes behind a present right and gives efficacy to any anterior circumstance to defeat it or relates back to, and gives to, a previous transaction some different legal effect. There is no question of any transaction here; the making of an assessment order is not a transaction at all. "Transaction" means an act such as a contract or transfer. All that the Amendment Act does is that it relates to an antecedent event or draws upon an antecedent fact, the event or fact being the making and service of an assessment order. Merely because it operates upon an antecedent assessment order or service, it is not to be regarded as operating retroactively. Sulaiman, C.J., said in Ram Karan v. Ram Das (A.I.R. 1931 All. 635 at p. 639), that to entertain a suit after a new enactment permitting such a suit is not, strictly speaking, giving to the Act retrospective effect.
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