Procedural defect in forfeiture notice gives no vested immunity where statutory breach supports action under sales tax law

A defect in the prescribed notice under section 37(2) of the Bombay Sales Tax Act did not create any vested right or immunity against forfeiture where tax had been illegally collected in breach of section 46(2). The notice was only a procedural step for initiating forfeiture under section 37, so the omission in the earlier Form 29 was a procedural defect, not a substantive bar. After the form was amended, the revenue could issue a fresh notice in the amended form and continue the proceedings. The court rejected reliance on section 34 of the Indian Income-tax Act, 1922, and held that no party has a vested right in a particular procedure.

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Issues: Whether a defect in the prescribed notice under section 37(2) of the Bombay Sales Tax Act, 1959, as it stood before amendment of form 29, conferred on the assessees any vested right or immunity against forfeiture, so as to prevent the revenue from issuing a fresh notice in the amended form and proceeding under section 37 for forfeiture of tax illegally collected in contravention of section 46(2).

Analysis: The prohibition against collection of tax by an unregistered dealer liable to pay tax is contained in section 46(2), and contravention of that prohibition attracts forfeiture under section 37(1). The notice contemplated by section 37(2) is only the procedural step for initiating action; it does not create any substantive protection. The omission in the earlier form 29 was a defect in procedure, not a source of immunity. Once the form was amended, the authorities were entitled to issue a fresh notice in the amended form and continue the proceedings. The analogy of section 34 of the Indian Income-tax Act, 1922, was rejected because the two statutory schemes are materially different. Procedural law is ordinarily retrospective, and no party has a vested right in a particular mode of procedure.

Conclusion: The assessees had no vested substantive right or immunity from forfeiture, and the amended notice was valid.

Final Conclusion: The reference was answered in favour of the department and against the assessees, with costs.

Ratio Decidendi: A defect in the prescribed procedure for notice does not confer a substantive right or immunity where the statutory ground for forfeiture exists; amended procedural provisions may validly be applied to pending action.

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