Arun Tandon, J. - (1.) Assessment proceedings in respect of the assessment year 1996-97 were initiated and were closed under an assessment order dated 30th March, 1999. Feeling aggrieved by the said order, petitioner preferred an appeal under Section 9 of the Trade Tax Act, being First Appeal No. 1622 of 1999. The appeal so filed was decided under order dated 25.8.2000.
(2.) Second Appeal against such an order is provided for under Section 10 of the Trade Tax Act. The period prescribed for filing of such an appeal is 90 days. The second appeal, in fact, was filed by the petitioner on 8th February, 2001. The appeal was reported defective on the grounds (a) beyond the limitation prescribed (b) it was not accompanied with sufficient fee payable on memo of appeal. The objections in that regard were considered by the Trade Tax Tribunal and by means of the order dated 22nd March, 2005 the appeal has been dismissed on the ground that it does not bear sufficient fee of Rs. 10,000/- as required under the Act. Therefore the report of the Munsarim is correct. The petitioner has been granted time to make good the deficiency in fee. It is against this order of the Tribunal, the present writ petition has been filed.
(3.) On behalf of the petitioner it is contended that the cause of action for filing of the second appeal arose on the date the assessment order was passed, in the facts of the case in the year 1999. At the relevant time the fee payable on the memo of second appeal was 500/- only. Along with the appeal filed by the petitioner in fact fee of Rs. 2100/- was deposited and therefore the report of the Munsarim as well as the order of the Tribunal, holding that the stamp duty paid on the memo of appeal was not sufficient, is factually in correct and based on non-consideration of legal position in that regard. In order to keep the record, Counsel for the petitioner states that by means of Section 6 of U.P. Act No. 35 of 2000 amendments were made in Section 32 of the U.P. Trade Tax Act, 1948. The fee payable on memo of appeal was revised from Rs. 500/- to Rs. 10,000/-. It is further pointed out that by means of U.P. Act No. 11 of 2001, vide Section 13 further amendment has been made in Section 32 of the principal Act and it has now been provided that on second appeal filed on and from March 5, 2001 the fee payable shall be Rs. 21,00/- only. Counsel for the petitioner submits that aforesaid amendments in Section 32 have absolutely no application inasmuch as the right to file the appeal, being a vested right, accrued on the date the order of assessment is passed and therefore the fee payable on the memo of appeal is to be determined with reference to the date on which the right to file the appeal had accrued. In support thereof, counsel for the petitioner has placed reliance upon the judgment of Hon'ble Supreme Court reported in AIR1957 SC 540 , [1957 ]1 SCR488 ; Garikapati Veeraya v. N. Subbiah Choudhry and Ors. (paragraph 23 Sub-clause 1, 2, 3 and 4).;