EOOSEIN EASAM DADA INDIA LIMITED Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(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.

(2.) Section 22 (1) of the Act was originally express in the following terms:

(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: