Vested right of appeal and pre-deposit waiver must be assessed under the law in force when the lis commenced.

The right of appeal accrues when the lis commences and is ordinarily governed by the statute then in force, unless a later enactment clearly displaces it. On that basis, the appeals arising from the 2002-2003 and 2003-2004 assessments were governed by the Assam General Sales Tax Act, 1993, not the Assam Value Added Tax Act, 2003. The appellate authority also had to consider the prayer for waiver of the pre-deposit requirement under the proviso to Section 33(6), which allows admission of an appeal on part payment or without payment for recorded reasons. Rejection of the appeal without addressing that waiver request was unsustainable, and the matter was remanded for fresh disposal under the correct provision.

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Issues: (i) Whether the appeal against the assessment orders relating to the assessment years 2002-2003 and 2003-2004 was governed by the Assam General Sales Tax Act, 1993 or by the Assam Value Added Tax Act, 2003; and (ii) whether the appellate authority was required to consider the request for waiver of the pre-deposit condition and could reject the appeal without examining that request.

Issue (i): Whether the appeal against the assessment orders relating to the assessment years 2002-2003 and 2003-2004 was governed by the Assam General Sales Tax Act, 1993 or by the Assam Value Added Tax Act, 2003.

Analysis: The right of appeal is a vested and substantive right which accrues when the lis commences, and it is governed by the law prevailing on that date unless a later enactment clearly takes it away by express words or necessary intendment. Since the returns and the lis originated before the Assam Value Added Tax Act, 2003 came into force, the appeals arising from the assessment orders had to be examined under the earlier statutory regime.

Conclusion: The appeal was governed by Section 33 of the Assam General Sales Tax Act, 1993 and not by Section 79 of the Assam Value Added Tax Act, 2003.

Issue (ii): Whether the appellate authority was required to consider the request for waiver of the pre-deposit condition and could reject the appeal without examining that request.

Analysis: Section 33(6) of the Assam General Sales Tax Act, 1993 requires proof of payment of the admitted tax or the prescribed percentage, but the proviso confers discretion on the appellate authority to admit the appeal with part payment or without payment for reasons to be recorded in writing to mitigate undue hardship. The impugned orders did not show consideration of the prayer for waiver, and the Board proceeded on an erroneous assumption that the request had been dealt with on merits.

Conclusion: The rejection of the appeal without considering the waiver request was unsustainable.

Final Conclusion: The revision succeeded, the impugned orders were set aside, and the matter was remanded for fresh disposal under the correct statutory provision with consideration of the waiver prayer.

Ratio Decidendi: A pre-existing right of appeal is governed by the law in force when the lis commences, and where the statute confers discretion to relax pre-deposit for recorded reasons, the appellate authority must consider that request before rejecting the appeal.

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