TaxTMI 
TaxTMI 
2005 (12) TMI 528
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....g the orders passed by the appellate authority, assessees have filed the present writ petitions. 3. In W.P. Nos. 22347, 26083 and 27441 of 2003, the learned single Judge (K. Govindarajan, J.), following the decision in the case of Arasu Rubber Corporation Ltd. v. Addl. D.C.T.O. (Mad.), reported in 200 2 Vol.126 STC 32, allowed the writ petitions and directed the appellate authority to entertain the appeals without insisting upon the pre-deposit of 25% of the disputed tax. While so, in the other batch of writ petitions, i.e. W.P. Nos.36661 to 36666 of 2004, the learned single Judge (K. Raviraja Pandian, J.), holding that the issue is covered by the decisions in the case of H. K. Dada (India) Ltd. v. State of Madhya Pradesh (4 STC 114) and Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax (12 STC 219), dismissed the writ petitions. Hence, the present writ appeals at the instance of the Revenue as well as the assessees. 4. In all these appeals, the issue involved is what is the crucial date on which the right of the assessees to prefer appeals against the order of assessment/re-assessment gets crystalised whether it is the date of assessment order or the date on which ret....
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.... on the date when a notice for final assessment is issued under Sec.12(2) of the Act or a show cause notice for re-assessment is issued under Sec.16 of the Act and, since those events having taken place after the amendment brought about by Act 19 of 2002, effective from 23-6-2002, the appellants' right of appeal is governed only by the amended law. 8. The main questions to be decided are: (1) Whether the right of an assessee to file an appeal is a substantive right? and (2) Whether such a right get crystalised at the time of initiation of assessment proceedings? 9. In the case of Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Others (1953 Vol. IV STC 114 SC), the Supreme Court was required to consider a similar issue, which arose under Sec.22(1) of the Central Provinces and Berar Sales Tax Act, 1947. Under the proviso to Sec.22(1) of the said Act, as it stood prior to its amendment by the Central Provinces and Berar Sales Tax (Second Amendment) Act (LVII of 1949), an aggrieved assessee was entitled to appeal provided he paid such amount of tax as he might admit to be due from him, but after the amendment the appeal had to be accompani....
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....ates. For the purposes of the accrual of the right of appeal the critical and relevant date is the date of initiation of the proceedings and not the decision itself." 10. In Garikapati Veeraya v. N. Subbiah Choudhry and Others (AIR 1957 SC 540), a Constitution Bench of the Supreme Court, formulated the principles, from the decisions in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, supra, Ganpat Rai Hiralal v. Aggarwal Chamber of Commerce Ltd. AIR 1952 SC 409, R.M. Seshadri v. Province of Madras AIR 1954 Mad. 543, In Re Reference under Section 5, Court Fees Act, AIR 1955 Bom. 287 and Sawaldas Madhavdas v. Arati Cotton Mills Ltd. AIR 1955 Bom. 332, as follows: (a) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings. (b) The right of appeal is not a mere matter of procedure but is a substantive right. (c) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (d) The ....
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....upra, stands impliedly overruled. We are unable to accept the contention of the learned counsel for the Revenue. 13. In the case of Hardeodasm, supra, the registered dealer's business was raided and thereafter a notice was issued dated 4th April, 1959 under Sec.19A of the Assam Sales Tax Act, 1947 for reassessment in respect of the half-yearly return periods ending on September 30, 1956, March 31, 1957 and September 30, 1957. Thereafter, orders of re-assessments were passed. The appellant filed an appeal against the orders of reassessment. In the meanwhile, Sec.30 of the said Act was amended with effect from April 1, 1958, as a result of which, the appellants were required to pay the amount of assessed tax or other reduced amount as may be directed by the Assistant Commissioner of Taxes before filing appeals. It was contended that the amended provisions of Section 30 should not be applied because the periods of assessments were prior to 1st of April, 1958. This contention was summarily rejected by the Supreme Court which observed that the assessment for the periods in question had been completed after the amendment came into force. Hence the amended provisions would apply. T....
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....nt paid towards the tax due for the period covered by the return. (2) The Commissioner is not satisfied with the correctness of the return; he issues a notice to him under Section 11(2), and makes an enquiry as provided under the Act, but does not finalise the assessment. (3) The registered dealer does not submit a return; the Commissioner issues a notice under Section 10(3) and Section 11(4) of the Act; and (4) the registered dealer does not submit any return for any period and the Commissioner issues notice to him beyond three years. If the return was accepted and the amount paid was appropriated towards the tax due for the relevant period, it means that there has been a final assessment in regard to the said period. If any turnover escaped assessment, clearly it can be reopened only within the period prescribed in Section 11-A. In the case where a return has been made, but the Commissioner has not accepted it, and has issued a notice for enquiry, the assessment proceedings will certainly be pending till the final assessment is made. Even in a case where no return has been made, but the Commissioner initiated proceedings by issuing a relevant notice either under Section 10(3) or ....
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.... provisions of Section 39(5) of the HGST Act would continue to govern the right of appeal vested in the petitioner which is saved in terms of section 4 of the Punjab General Clauses Act (as applicable to State of Haryana)." 17. In Siemens India Ltd. v. The State of Maharashtra (62 STC 40), a Division Bench of the Bombay High Court has held that assessment proceedings against a registered dealer commence when he files his return and against an unregistered dealer, when the Commissioner calls upon him to file a return of his turnover. When the registered dealer has not filed a return, the proceedings commence when the Commissioner issues a notice. The Division Bench further held that an appeal is a continuation of assessment proceedings and the right of appeal is a substantive right which gets crystallised when assessment proceedings are initiated. 18. Similar view was taken by a Division Bench of the Patna High Court in Bahadur Kamakhya Narayan Singh v. State of Bihar (1962[46] ITR 516 Pat.) and also by the Allahabad High Court in Commissioner, Sales Tax, Uttar Pradesh v. Tika Ram Arthi (1977[39] STC 147 All.). 19. Learned counsel for the appellants also drew our attention ....
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....preme Court in the case of Commissioner of Income Tax v. Sun Engineering Works Pvt. Ltd. (198 ITR 397). The reliance placed on the said decision is clearly misconceived. The question in that case was as regards the right of the assessee to contest matters closed by the original assessment in a revision of assessment under Sec.16 of the Act. In the context of the question posed before the Court, it was held that the revision of notice under Section 16 of the Act was a limited right given to the Revenue and the assessee could not utilise that opportunity to agitate matters which had become final in the original assessment. In a revision of assessment under Section 16 of the Act, the emphasis is on the return. Under Sec.16, the tax authority passes a judgment on the correctness of the return. Sec.16(2 ) of the Act provides for levy of penalty in a situation involving ' wilful non-disclosure'. The expression 'non-disclosure' itself indicates that the assessment under Sec.16 is concerned with the returns. The nature of re-assessment is nothing but an assessment itself. 22. In the case of State of Madras v. Latheef Hameed & Co. (1968) 21 STC 476, a Division Bench of th....