- (1.) THIS revision petition has been filed against the order dated 1. 11. 66 of Addl. Comm. Commercial Taxes, Raj. Jaipur. The facts are that Commercial Taxes Special Circle, Jodhpur assessed the petitioner's firm for the year 1962-63 vide assessment order dated 15. 10. 66 and created a demand for Rs. 100,295. 07. The petitioner preferred an appeal against this order before the Dy. Commissioner (Appeals), Udaipur. After filing the above appeal the petitioner moved an application under proviso to sub-sec. 3 of sec. 11 of the Rajasthan Sales Tax Act, 1954 before the Addl. Commissioner, Commercial Taxes, Jaipur for stay of recovery proceedings and the learned Addl. Commissioner, Commercial Taxes, Jaipur vide his order dated 1. 11. 65 ordered that if the assessee deposits Rs. 15,000/- in the month of November, 66 and Rs. 10295. 07 by 15th December, 1966 the remaining amount out of' the existing demand for the above period shall be stayed pending disposal of appeal. He also laid down certain conditions. The petitioners have come in revision praying for stay of recovery of demand ordered by C. T. O. Special Circle, Jodhpur.
(2.) I have heard counsel for the parties and also perused the record. A preliminary objection was raised by the Government Advocate that revision against an order passed by the Commissioner under proviso to sec. 11 sub-cl. (3) is not maintainable as the same has been expressly excluded under sec. 14 (2) of the Rajasthan Sales Tax Act as amended by the amending Act No. IX of 1965 which has come into force from 27. 4. 65. The learned counsel for the petitioners contended that the insertion of the words "not being proceedings under the proviso to sub-sec. 3 of sec. 11" has no retrospective operation as the amending Act No. IX of 1965 does not contain any words to that effect. In the absence of such words it cannot be inferred that this amendment has retrospective operation. The matter relates to the assessment of the said amendment Act and, therefore, the law which was in force prior to its amendment is to be applied. In the old sec. 14 (2) as it stood prior to its amendment of 1965 there was no restriction about excluding a revision against an order passed under proviso of sub-sec. 3 of sec. 11 and hence the revision is maintainable. Counsel for State replied that the order under revision has been passed under sec. 11 (3) proviso after its amendment and if the amending Act has no retrospective operation the Commissioner had also no jurisdiction to pass any such orders. He further drew my attention to second proviso of sec. 14 (2) of the Rajasthan Sales Tax Act and in this context he added that since an appeal is. pending before the Dy. Commissioner (Appeals) against the assessment order no revision is maintainable. The counsel for the petitioner in reply contended that petitioner's claim for stay of recovery of the tax was under the proviso to sec. 11 (3) as it stood prior to its amendment on 27-4 65 and the Commissioner was competent to stay the recovery of the tax on furnishing security to his satisfaction. On this the counsel for State submitted that the condition of pendency of an appeal has been added in the first proviso of sub-sec. 3 of sec. 11 and a further provision has been added about liability to payment of interest on the tax due. The counsel for the petitioner contended that amendments conferring powers and providing certain measures of relief under certain procedure can be applied to the pending proceedings also. But an enactment imposing a condition on a statutory right of revision or impairing the same cannot be applied to the pending proceedings. In support of his contention he referred to 1964 RRD p. 293 (Chimnaram vs. State of Rajasthan) wherein a similar provision by which sec. 10 Land Revenue Act has been against order of the single member was required to obtain a certificate of fitness for appeal to a Division Bench. The Board of Revenue held that this amendment for obtaining a certificate of fitness was not applicable to cases which were instituted prior to the amendment and it was held that it was not applicable to pending proceedings. 1953 S. C. p. 221 (M/s. Hoosein Kasam Dada India vs. State of Madhya Pradesh) was cited in support of the contention that the lis commences on the day when the proceedings initially started before the inferior Tribunal. It was further supported by 1957 S. C. p. 540 as also Full Bench decision of the Board of Revenue reported in 1966 RRD 193. The learned counsel further contended that the question of bar of proviso to sec. 14 (2) was not applicable in the present case as the revision application has been filed against the order of the Addl. Commissioner under sec. 11 (3) against winch any appeal neither lies nor such an appeal was pending before the Dy. Commissioner (Appeals ). The appeal now pending is against the assessment order of the Commercial Tax Officer. The provision of sec. 14 (2) would apply if the petitioners had come in revision direct against the order of the C. T. O. The Government Advocate replied that revision was not a vested right and, therefore, no question arose for consideration of retrospective operation. In support of his contention he cited unreported decision in case No. 1/1960 Sales Tax Deptt. vs. Ganeshilal Jiwanlal decided by Full Bench of the Board of Revenue on 24. 5. 61 as also Supreme Court decision in Appeal No. 383 of 1963 (Mohammad Meera Labbai vs. Thirumalya Counder Ramaswamy) decided on 23rd August. 1965. He contended that the Full Bench decision of the Board reported in RRD 1 966 p. 193 that revision is a vested right was not comprehensive and the same was pending for reconsideration The Government Advocate further contended that even if this court over-ruled his objection and accepted the revision petition, only the order of the Addl. Commissioner could be set aside and the case will have to go back to it. This court cannot substitute its own order in place of the Addl. Commissioner granting or modifying the said order and the order of Commercial Taxes Officer will remain in force and recovery cannot be stayed. Counsel for the petitioners rejoined that in the unreported decisions referred to by the Government Advocate the matter was not directly and substantially in issue whether the right of revision is a vested right and whether the same can be taken away by retrospective application of certain amendment. In that case the only question in dispute was that when the Board of Revenue was empowered to entertain revision application against the order of the Dy. Commissioner the question of the maintainability of the pending revision application before the Commissioner was examined and in this context the Board held that no litigant had a vested right of having a hearing by any particular authority. He contended that the judgment cited by the Government Advocate has no bearing to the present case and the Full Bench decision of the Board of Revenue should be taken to decide the point about the retrospective operation of the amending Act, 1965. Referring to ruling of the Supreme Court cited by the counsel for State he contended that it is not applicable as in this also the question in dispute was the manner of hearing of the appeal by a particular number of Judges and there was no reference to the hearing of a revision petition. Neither any right was snatched away in that case. In reply to the second argument of the counsel for State the counsel for the petitioner submitted that if this court was competent to set aside the order of the Addl. Commissioner it was also competent to modify and substitute its own order in place of order under revision. The points for determination before me on which the issue will turn are whether lis starts from the date of commencement of the proceedings or the date of the order of the C. T. O. and whether right of revision under sec. 11 (3) has been affected by the amendment of 27. 4. 65 and if this revision is not barred by sec. 14 (2) According to the judgment of the Board of Revenue reported in R. R. D. 1964 p. 293 the cause of action started from the day proceedings commenced in the trial court. This is supported by common sense as well as by 1953 S. C. p. 221 and the counsel for State was unable to show any authority in support of his contention that the lis commenced when the C. T. O. gave his assessment order dated 15. 10. 66. Whether revision is a vested right and has not been retrospectively affected by the amendment dated 27. 4. 65 is a point on which two opinions have been given. Decision given on 24. 5. 61 in the unreported Full Bench case is clear that revision in the first is only a remedy and not like an appeal a vested right. This viewpoint of the Advocate General was agreed to by the Full Bench. On the other hand in the case reported in R. R. D. 1966 p. 193 it was held by the majority that revision is a vested right. I am told that this majority judgment is being subjected to further proceedings. Of this judicial notice cannot be taken. In the same case it was held by the Member, Board of Revenue, who was in minority that it was not necessary to make a definite pronouncement whether a revision is a vested right like an appeal. In view of the order that I am going to give I also leave the question open. Sec. 14 (2) of the Rajasthan Sales Tax Act lays down as below - "provided further that no revision under this sub-section shall be entertained upon the application of a dealer - (a) if he could have appealed under sec. 13 and no appeal has been filed by him, or (b) if an appeal is pending before the appellate authority. Now in this case it is admitted that an appeal against the assessment order of the C. T. O. in respect of assessment for 1962-63 is pending in the court of the Dy. Commissioner (Appeals ). The counsel for the petitioner contended that the fact that appeal was pending against the order of assessing authority is no bar for the revision against the order of the Dy. Commissioner (Appeals) in stay application. This contention does not appear to be sustainable. The intention of the legislature clearly is that during the pendency of an appeal before the appellate authority revision should not lie upon application of dealer. Hence the order given on the stay application is not subject to revision by this court as an appeal is pending before the appellate authority. In the result the preliminary objection is sustained and the revision fails. . ;