Case: The State of T.N Vs. M/s. Lateef Hamid &amp; Co

is a vested right, which cannot be interfered with or in any way impaired having regard to the specific provision of sec. 61 (1) of the Madras Act I of 1959. The order of the Appellate Assistant Commissioner only reduced the turnover to the benefit of the assessee, audit is clear that there was no violation of the vested right of the assessee by reason of the said order. The order of the Appellate Assistant Commissioner was passed after the coming into force of the 1959 Act and on that date the assessee had no vested right to prevent an enhancement of his assessment by the future appellate authority, namely the Tribunal. The Tribunal entertained an appeal at the instance of the assessee only under the new Act as the order appealed against was one passed after the coming into force of the new Act, and by a Tribunal which functioned under the new Act. It is impossible for the assessee to maintain the position that any order of the Appellate Tribunal enhancing the assessment made by the Appellate Assistant Commissioner would amount to deprivation of their vested rights or violation of the provisions of section 61(1) of the 1959 Act. 17. These observations appear to us to be some what incongruous. As seen earlier under the 1939 Act, the Revenue could not have appealed either against the order of the assessing authority or against that of the appellate authority. If the non-existence of the right of appeal on the part of the Department is considered as an immunity or protection and if that immunity or protection is considered as a vested right, the assessee will have that right both at the stage of appeal to the Appellate Assistant Commissioner as well as the stage of the appeal to the Tribunal. It is difficult to follow how the High Court was able to make a dichotomy as between the powers of the Appellate Assistant Commissioner and that of the Tribunal in that regard. If the new constituted Tribunal were clothed with wider and larger powers as opined by the High Court, the same would be the case with the Appellate Assistant Commissioner. In our opinion, the true test to be applied to the case was whether in fact any vested right of the assessee had been taken away under the 1959 Act because of the enlargement of the powers of the first appellate authority or that of the Tribunal. As seen earlier, no real right of the assessee was infringed by the 1959 Act because of the enlargement of the powers of those authorities. 18. This takes us to the decision in Balasundaram & Co.s case (supra). This case was decided by the same bench which decided Swami & Co.s case. Therein the assessee was assessed to sales tax under the 1939 Act. During the pendency of its appeal to the Commercial Tax Officer, the 1959 Act came into force. Its appeal was transferred to the Appellate Assistant Commissioner who enhanced the assessment. But on a further appeal, the Tribunal came to the conclusion that the Appellate Assistant Commissioner had no jurisdiction to enhance the assessment. As against that order, the Deputy Commissioner of Commercial Taxes went up in revision to the High Court. The High Court held that the assessee had a vested right at the time when the 1959 Act came into force to prevent the Commercial Tax Officer from enhancing the assessment in the course of the appeal preferred by him. However, there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional power, but that peril effectively disappeared when under the 1959 Act, the revisional power was conferred upon the Deputy Commissioner of Commercial Taxes and not upon the Appellate Commissioner. Thereafter the interference by the Appellate Assistant Commissioner with the assessment order passed by the Deputy Commercial Tax Officer to the prejudice of the assessee in the purported exercise of his appellate power, was clearly violative of the assessees vested rights. In our opinion this decision proceeded on a wrong basis. The question before the High Court was whether there was a vested right in the assessee not to have his assessment enhanced, under the 1939 Act and whether that vested right had been in any manner infringed by the 1959 Act. As seen earlier he had no such vested right under the 1939 Act. The fact that a different procedure is prescribed under the 1939 Act for enhancing the assessment cannot be said to be an infringement of a vested right. No one can have a vested right in a mere procedure. We are of opinion that Balasundarams case (supra) was wrongly decided and some of the observations in Swami & Cos case (supra) are not correct though the decision in that case is not open to question. 19. Mr. S. T. Desai, learned counsel for the Revenue placed strong reliance on the decision of a Division Bench of the Kerala High Court in Velukutty vs. Kerala Sales Tax Appellate Tribunal, Trivendrum and Ors. (3). Therein, interpreting provision similar to sec. 61(2) of Act, the High Court came to the conclusion that the clause be transferred to and disposed of by the officer or authority who would have jurisdiction to entertain such application, appeal, revision or other proceeding under this Act, if it had been in force on the date on which any application, appeal, revision or other proceeding was made or preferred conferred power on the appellate authority to enhance assessment. The correctness of this conclusion was contested by Mr. Shanker Das, learned counsel for the assessee. According to him that clause merely provided for transferance of the appeals pending before the authorities under the 1959 Act without enlarging their powers. In view of our conclusion that vested right of the assessee had been interfered with. It is not necessary for us to go into this controversy.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]2. There is no merit in the second contention. Therefore it will be convenient to dispose it of even before going to the facts of the case. The assessing officer as well as the Appellate Assistant Commissioner of Commercial Taxes disallowed the two exemption asked for by the assessee on the ground that there was interpretation in the relative document covering the turnover. The Tribunal reversed that findings of those authorities and allowed the exemptions asked for. It appears from the order of the Tribunal that it proceeded on the basis that there was no interpolation. This finding of the Tribunal is essentially a finding of fact and hence we will not be justified in interferring with that finding and more so as the High Court has declined to interfere with that finding6. The turnover of the assessee during the year9 became charged with liability to payx under the 1939 Act as and when the assessee effected sales and the totalx liability of the assessee for that year became fixed under the same Act on March 31, 1959. Hence the charging section in the 1959 Act is not relevant for determining the liability of the assessee7. We shall now examine the relevant provisions of the 1939 Act and the 1959 Act. We shall first take up the material provisions in the 1939 Act. Sec.) defines the expression assessing authority as meaning any person authorised by the State Government to make any assessment under the Act. The expression Commercial Tax Officer is defined in sec) as meaning any person appointed to be a Commercial Tax Officer under sec. 2 B. The Deputy Commissioner is defined in sec.) as meaning any person appointed to be a Deputy Commissioner of Commercial Taxes under sec. 2B. Section 2B empowers the State Government to make appointments of as many Deputy Commissioner of Commercial Taxes and Commercial Tax Officers as they think fit for the purpose of performing the functions respectively conferred on them by or under the Act. The expression Appellate Tribunal is defined in sec. 2) as meaning the Tribunal appointed under sec., which empowered the Government to appoint a Tribunal consisting of three members to exercise the functions conferred on the Appellate Tribunal by or under the Act. Section 11 provided for appeal by the assessee objecting to an assessment made on him under sec. 9(2) within the prescribed period. Section 9 prescribed the procedure to be followed by the assessing authority. Section 12(1) conferred certain special powers on the Commercial Tax Officer. It said that the Commercial Tax Officer) suo moto or(ii) in cases in which an appeal does not lie to him under section 11, on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding, and may pass such order with respect thereto as he thinks fit8. The application under sec. 12 (1) (ii) could have been made even by the assessing authority. It may be also remembered that the Commercial Tax Officer was one of the authorities charged with the duty to see that no taxable turnover went untaxed. The power under sec. 12 (1) could have been exercised within three years from the date the assessee was served with assessment order. Power under sec. 12 (1) (ii) could have been exercised by the Commercial Tax Officer simultaneously with the exercise of his appellate power under sec. II(1)9. Section 12(2) conferred special powers on the Deputy Commissioner to call for and examine any order or proceeding recorded under the provisions of the Act satisfying himself as to the legality or propriety of that order or as to the regularity of such proceeding and may pass such order with respect thereto as he thinks fit. This power he could have exercised within four years from the date on which the assessment order was communicated to the assessee10. Section 12A provided for an appeal by an assessee objecting to an order relating to his assessment passed by the Commercial Tax Officer whether on appeal under sec. 11 or under sec. 12. (1) or by the Deputy Commissioner under sec. 12,. (2) subject to certain conditions with which we are not concerned in this case. The assessee as well as Deputy Commissioner were conferred with power to move the High Court under sec. 12B within the prescribed period against the order of the Appellate Tribunal on the ground that order either decided erroneously a question of law or it failed to decide the question of law arising for decision11. This takes us to the relevant provisions in the 1959 Act. Therein again the assessing authority is defined in sec. 2 (c) as meaning any person authorised by the Government or by any authority empowered by them to make assessment under the Act. Against the order of assessment made by the assessing authority an appeal by any person objecting to the assessment lies to the Appellate Assistant Commissioner appointed under sec. 28,. (3). Section 31 empowers the Appellate Assistant Commissioner to confirm, reduce, enhance or annul the assessment. The power to enhance the assessment was conferred on the Appellate Authority for the first time by the 1959 Act. Under this Act also the Deputy Commissioners power to suo moto revise the order of assessment is retained, subject to certain conditions. Any person objecting to the order made by the Appellate Assistant Commissioner under sec. 31 (3) or against the order made by the Deputy Commissioner under sec. 31 (1) can appeal to the Appellate Tribunal. Under sec. 38 the assessee or the Deputy Commissioner can take up a revision to the High Court either on the ground that the Tribunal has decided a question of law erroneously or it has failed to decide a question of law arising for decision12. In the matter of assessment, the purpose of the 1939 Act as well as the 1959 Act is identical. That purpose was and is to see that neither the assessee is over assessed nor the State is deprived of the Revenue to which it is entitled. Under the 1939 Act, an aggrieved assessee could first appeal to the Appellate Authority and then to Tribunal. Further he could on question of law go up in revision to the High Court. To protect the interest of the State, special powers were conferred on the Commercial Tax Officer as well as the Deputy Commissioner of Commercial Taxes. If the Deputy Commissioner was not satisfied with the decision of the Tribunal on questions of law, he could have gone up in revision to the High Court. Under the 1959 Act, the procedure was simplified to some extent. The Appellate Asstt. Commissioner who primarily took over the quasi judicial functions of the Commercial Tax Officer was conferred with power not only to confirm, vary or annul the assessment but also the power to enhance the assessment. The power conferred on him u/s. 31 of the 1959 Act combines to an extent both the appellate power as well as the special power the Commercial Tax Officer had under secs. 11 and 12(1) of the 1939 Act. Hence the changes effected by the 1959 Act in the machinery provisions do not touch the substance of the matter. Even as regards the time with in which the enhancement of assessment can be made the change excepting in exceptional cases is in favour of the assessee. The Commercial Tax Officer could have exercised his special powers under sec. 12 (1) of the 1939 Act within three years from the date the assessment order was served on the assessee. Under the 1959 Act, he can enhance the assessment only during the pendency of the appeal and not thereafter. Herein we are not concerned with the special powers of the Deputy Commissioner nor with the powers of the Tribunal or the High Court. In our opinion there is no basis for saying that the provisions of the 1959 Act relating to the determination of the assessment are more onerous than those in the 1939 Act. The 1959 Act in our opinion merely simplified the procedure without touching the substance of the right of the parties. No benefit that was available to an assessee as regards the procedure was taken away by the 1959 Act, if we ignore the remote possibility of an appeal pending before an Appellate Assistant Commissioner for more than three years and that authority falling to exercise his power to enhance the tax within that period. The assessee before us cannot even have the benefit of such a contingency because the order of assessment in this case was made on March 24, 1961 and the appellate order was passed on August 16, 1922. In this case it cannot be said that any vested right of the assessee had been in fact affected by the 1959 ActHence the 1959 Act does not adversely effect in any manner the right of appeal an assessee had under the 1939 Act. If one probes into the grievance of the assessee before us, it would be obvious that it is wholly imaginary. No assessee has any vested right in the procedure prescribed under the 1939 Act. So long as the new procedure laid down in the 1959 Act does not interfere with any of his vested rights, an assessee has no right to claim that his case must be dealt with under the provisions of the repealed Act. It is well settled that the new procedure prescribed by law governs all pending cases. As seen earlier, the assessee filed its appeal under sec. 31 of the 1959 Act and not sec. 11 of the 1939 Act. But that is a minor aspect. What is of the assence is that his right of appeal under the 1959 Act does not take away in any manner any of his vested rights under the 1939 Act15. In view of what we have said hereinbefore, it is not necessary for us to consider the meaning of the words any right, privilege ...... accrued ...... under the Act in sec. 61 (1) (ii) (c). We repeat that no right of the assessee was infringed by the provisions of the 1959 Act. In this view, it is not necessary to examine the scope of 61 (2) of the 1959 Act about which there was considerable argument before us17. These observations appear to us to be some what incongruous. As seen earlier under the 1939 Act, the Revenue could not have appealed either against the order of the assessing authority or against that of the appellate authority. If thee of the right of appeal on the part of the Department is considered as an immunity or protection and if that immunity or protection is considered as a vested right, the assessee will have that right both at the stage of appeal to the Appellate Assistant Commissioner as well as the stage of the appeal to the Tribunal. It is difficult to follow how the High Court was able to make a dichotomy as between the powers of the Appellate Assistant Commissioner and that of the Tribunal in that regard. If the new constituted Tribunal were clothed with wider and larger powers as opined by the High Court, the same would be the case with the Appellate Assistant Commissioner. In our opinion, the true test to be applied to the case was whether in fact any vested right of the assessee had been taken away under the 1959 Act because of the enlargement of the powers of the first appellate authority or that of the Tribunal. As seen earlier, no real right of the assessee was infringed by the 1959 Act because of the enlargement of the powers of those authorities18. This takes us to the decision in Balasundaram & Co.s case (supra). This case was decided by the same bench which decided Swami & Co.s case. Therein the assessee was assessed to sales tax under the 1939 Act. During the pendency of its appeal to the Commercial Tax Officer, the 1959 Act came into force. Its appeal was transferred to the Appellate Assistant Commissioner who enhanced the assessment. But on a further appeal, the Tribunal came to the conclusion that the Appellate Assistant Commissioner had no jurisdiction to enhance the assessment. As against that order, the Deputy Commissioner of Commercial Taxes went up in revision to the High Court. The High Court held that the assessee had a vested right at the time when the 1959 Act came into force to prevent the Commercial Tax Officer from enhancing the assessment in the course of the appeal preferred by him. However, there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional power, but that peril effectively disappeared when under the 1959 Act, the revisional power was conferred upon the Deputy Commissioner of Commercial Taxes and not upon the Appellate Commissioner. Thereafter the interference by the Appellate Assistant Commissioner with the assessment order passed by the Deputy Commercial Tax Officer to the prejudice of the assessee in the purported exercise of his appellate power, was clearly violative of the assessees vested rights. In our opinion this decision proceeded on a wrong basis. The question before the High Court was whether there was a vested right in the assessee not to have his assessment enhanced, under the 1939 Act and whether that vested right had been in any manner infringed by the 1959 Act. As seen earlier he had no such vested right under the 1939 Act. The fact that a different procedure is prescribed under the 1939 Act for enhancing the assessment cannot be said to be ant of a vested right. No one can have a vested right in a mere procedure. We are of opinion that Balasundarams case (supra) was wrongly decided and some of the observations in Swami & Cos case (supra) are not correct though the decision in that case is not open to questionIn view of our conclusion that vested right of the assessee had been interfered with. It is not necessary for us to go into this controversy.