- (1.) THE record is put up today for order. This hearing is with respect to an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987. The order dated March 26, 2003 passed by the Assistant Commissioner, Commercial Taxes, 24 Paraganas Circle (respondent No. 2) rejecting the appeal and the review application against the order of assessment passed by the Commercial Tax Officer, Ultadanga Charge (respondent No. 1) has been challenged. The Commercial Tax Officer's order of assessment related to the period fourth quarter ending March 31, 2000.
(2.) BEFORE entering into the facts it is pertinent to mention that proviso to Sub -section (1) of Section 79 which was there in the West Bengal Sales Tax Act, 1994 has been substituted, by a new proviso by West Bengal Act of 2002 with effect from April 1, 2002. Initially the said proviso had been to the effect that no appeal should be entertained by the appellate authority unless he was satisfied that such amount of the tax, penalty or interest as the case may be, as the appellant may admit to be due from him has been paid. The new proviso that has been inserted by the amendment of the Act is to the effect that no appeal shall be entertained unless the said authority is satisfied that the amount of tax, penalty or interest as the appellant may admit to be due from him and an amount equal to 20 per centum of the tax, penalty or interest in dispute has been paid. The appellate authority by the impugned order rejected the appeal and review application since the petitioner's assessment order was passed on August 16, 2002 which was much after the effective date April 1, 2002 requiring deposit of 20 per cent of disputed tax at the time of filing appeal. The petitioner as per the said impugned order appears not to have deposited the amount as directed earlier by the appellate authority (respondent No. 2). For that and in view of the judgment by the honourable Supreme Court reported in [1970] 26 STC 10 ; : AIR 1970 SC 724 in the matter of Hardeodas Jagannath v. State of Assam, the Assistant Commissioner was obliged to pass the order of rejection as he did.
(3.) AGAINST the said stand taken by the revenue authority, the contention of the petitioner's advocate Sri S.K. Chakraborty is that the right of appeal vests in the petitioner at the moment there is commencement of the "his". His submission is that necessary return of the period in question was filed long before October 17, 2000 when notice in form 29 was issued by respondent No. 1 fixing April 19, 2001 as the date of hearing of the relevant assessment case of the petitioner. The return having been filed and the notice of hearing having been issued on October 17, 2000, the "lis" has commenced already and the petitioner's right of appeal exists on and from that time and the said right is not to be governed by the amendment which came into effect on April 1, 2002. In this respect he relies on a decision of the honourable Supreme Court reported in [1953] 4 STC 114 in the matter of Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh. It has been decided there that right of appeal is not a matter of mere procedure but is a vested right which inhered in a party from the commencement of the action in the court of first instance and such right could not be taken away except by an express provision or by necessary implication. Right of appeal is a substantive right and it vests in a party when a "lis" commences. The vested right of appeal cannot be destroyed by amendment if it is not retrospective in nature by express words or necessary intendments. In other words, the Supreme Court held in that case, that when a "lis" commences all rights crystallised and no bar on likely appeal was legal unless the law was made retrospective expressly or by clear implication. The facts in that case are similar to the instant one before us. The date of submission of return there was November 28 1947, notice of date of disposal was fixed as February 5, 1949 and the hearing commenced on June 9, 1949 and the order of assessment was passed on April 8, 1950 and the disputed amendment was made effective on and from November 25, 1949. In the instant case though order of assessment was passed after the said amendment in the law but the "lis" or initiation of assessment proceeding being before the date of amendment, right of appeal will be deemed to have accrued already before the date of amendment though actually the assessment order was passed after the amendment - -provision of which admittedly has not been made retrospective one. It is next submitted by learned advocate for the petitioner that the principle enunciated in this ruling has also been followed by the Constitution Bench of the Supreme Court in another case reported in Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax [1961] 12 STC 219, but it could not follow the ratio of the earlier case since the necessary facts about the commencement of the "lis" had been wanting. Sri S.K. Chakraborty then refers to a case reported in [1962] : 46 ITR 516 (Pat.) (Raja Bahadur Kamakhya Narayan Singh v. State of Bihar), [1968] 21 STC 476 (Mad.) (State of Madras v. Latheef Hameed and Co.), [1986] 62 STC 40 (Bom) (Siemens India Ltd. v. State of Maharashtra) and [1977] 39 STC 147 (All.) (Commissioner, Sales Tax v. Tika Ram Arhti) in support of the legal principle that the right of appeal vests in the assessee on the date of initiation of the proceeding for assessment and the right vests from that moment when the assessee files return leading to commencement of assessment proceeding. At least the assessment proceeding can be said to be initiated by issuing notice or by filing of return. He relies on a decision of the Tamil Nadu Taxation Special Tribunal reported in Hugs Advertising Industries v. Commercial Tax Officer [2000] 119 STC 591, wherein all relevant decisions concerning this aspect of law have been discussed. That Tribunal assigned reasons as to why that the Supreme Court decision rendered in the case of Hardeodas Jagannath v. State of Assam reported in [1970] 26 STC 10 on which respondent rely cannot be taken as an authority in such a dispute. The main point there as per the Tribunal related to extension of Assam Sales Tax Act to Shilong administrative area and that there was no argument in that case before the honourable Supreme Court on the point that right of appeal vested earlier from the date of commencement of "lis" or when proceedings were initiated. Moreover, there is no reference from any quarter in that case regarding the earlier decisions of the Supreme Court on this point. So regard being had to all the above, submission of learned lawyer for the petitioner is that the appellate authority erred in rejecting the appeal for non -deposit of 20 per cent of the disputed tax amount by the petitioner. Sri Chakraborty also relied on a decision of this Tribunal on the same question reported in Ram Prokash Arora v. C.T.O. [2004] 135 STC 409 (App.) infra ; [2002] 40 STA 206.;