TaxTMI 
TaxTMI 
2002 (8) TMI 819
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....passed or proceeding recorded by any authority under the provisions of this Act other than an order passed or proceeding recorded by an Additional Commissioner, Joint Commissioner or Deputy Commissioner under sub-section (4-C) of section 14 may within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed: Provided that the appellate authority may within a further period of thirty days admit the appeal preferred after a period of thirty days, if he is satisfied that the dealer had sufficient cause for not preferring the appeal within that period." 5.. Likewise, section 21 and sub-section (2) thereto of the Act provides thus: "(1) Any dealer objecting to an order passed or proceeding recorded (a) by any prescribed authority on appeal under section 19, or (b) by the Additional Commissioner or Joint Commissioner or Deputy Commissioner under section 14 or under sub-section (2) of section 20, may appeal to the Appellate Tribunal within sixty days from the date on which the order or proceeding was served on him. (2) The Appellate Tribunal may within a further period of sixty days admit the appeal prefe....
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....the Appellate Tribunal had the discretion to condone the delay of any period over and above the statutory period of 60 days in preferring the appeal if the dealer assigns satisfying reasons in filing the appeal belatedly. However, by virtue of the impugned amendment No. 8 of 1997 brought to sub-section (2) of section 21 which came into force with effect from January 4, 1997, the discretion available to the Appellate Tribunal to condone the delay of any period is now restricted to 60 days only. 8.. Learned counsel appearing voice their grievances contending that the impugned amendments brought to the first proviso to section 19(1) and sub-section (2) of section 21 are in the nature of offending articles 14 and 19(1)(g) of the Constitution of India as it discriminates between the categories of appellate authorities and stated that the impugned amendment has to be declared as ultra vires the provisions of the APGST Act. Counsel also submitted that a right of an appeal is not merely a matter of procedure but is a substantial right and the said right vested in the petitioners when their returns are submitted to the first respondent. Elaborating further on this aspect, learned counsel....
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.... respectively. The learned Government Pleader stated that as provided under sections 19 and 21, the dealer after service of order on him by the department is entitled to prefer an appeal before the first and second appellate authorities, as the case may be, within 30 and 60 and respectively. The appellate authorities are entitled to condone further delay of 30 and 60 days respectively if an appeal is filed under sections 19 and 21 as the case may be, if the appellate authority is satisfied that there are sufficient reasons to condone the delay. Prior to amendment the unlimited discretionary power was available to these authorities to condone the delay. However, such exercise of unlimited discretionary power was found to be not in the interest of the Revenue as these authorities were condoning the abnormal delays, resulting in prolonged litigation and as such, it was thought fit that such unlimited discretionary power be restricted and accordingly, the impugned amendment has been inserted which came into force from January 4, 1997. The learned Government Pleader submitted that though the right to appeal is a statutory right, the provisions relating to condonation of delay are proced....
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....March 3, 1998. The petitioner filed appeal before the second respondent-Appellate Deputy Commissioner, Guntur, on August 3, 1998 along with stay petition seeking stay on collection of disputed tax. Since there was a delay in preferring the appeal within the statutory period of 30 days provided under the scheme of the Act, the petitioner filed a petition for condonation of delay of four months and enclosed a medical certificate. The second respondent by his proceedings dated September 19, 1998, rejected the petition filed for condonation of delay of four months, on the ground that the discretion available to him as per the amendment brought to the first proviso to sub-section (1) of section 19 of the Act is only 30 days and as such, recorded the reasons that he cannot stretch his discretion beyond 30 days. Though a second appeal is available to the petitioner to the Sales Tax Appellate Tribunal under section 21 of the Act, against the order passed by the first appellate authority, it would appear that since the Sales Tax Appellate Tribunal had already taken a view, refusing to condone the delay of beyond 60 days in the case of Sri Lakshmi Roja Oil Producers v. State of Andhra Pra....
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....le and discriminatory, had absolutely no connection with the object sought to be achieved by the Act and that section 21(6) was violative of article 14 of the Constitution. 16.. As discussed, the facts obtaining in these writ petitions are otherwise. In this case, there is no classification of appellate forums into two categories and providing certain powers to one appellate forum and denying such powers to another. What is curtailed is the unlimited discretionary power which was available to these authorities to condone the delay of any period. By the impugned amendment, the right to appeal is not taken away. Even the discretionary power to condone delay in filing appeals is also not taken away totally. Only the unlimited discretionary power to condone the delay of any period which was available to the first and second appellate authorities was restricted to 30 and 60 days respectively. 17.. The right to file an appeal is a substantive right vested in the party and whereas filing a petition for condonation of delay is procedural in nature. It cannot, therefore, be said that the impugned amendment offends the rights of the petitioners under article 14 of the Constitution of I....
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.... 21 of the Act with effect from July 1, 1985, depriving the Tribunal altogether the power of granting stay of collection of tax pending an appeal, the amendment cannot be taken to have retrospective effect. The power of the Tribunal to grant stay is preserved in respect of all appeals relating to assessment years falling prior to July 1, 1985 and in respect of provisional assessment proceedings falling prior to July 1, 1985. 22.. In Hugs Advertising Industries case [2000] 119 STC 591 a Full Bench of the Tamil Nadu Taxation Special Tribunal while examining the provisions under the Tamil Nadu General Sales Tax (Fourth Amendment) Act, 1999 which amended sections 31, 31-A and 36 of the Tamil Nadu General Sales Tax Act, 1959 making payment of 25 per cent of the disputed tax a condition for entertaining appeals thereunder, while referring to various decisions of the Supreme Court as well as other High Courts including that of the decision in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114 (SC) held that the right of appeal inheres in a dealer/assessee the very moment when he files a return under the Tamil Nadu General Sales Tax Act or when he is obliged to ....
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....authority in an appeal, which matters and that aspect has to be taken note of, while examining the prospective or retrospective effect of an amended provision of an Act. 25.. In Vinod Gurudas Raikar's case AIR 1991 SC 2156, the Supreme Court was considering the provisions of sections 217(1) and 166(3) of the Motor Vehicles Act, 1988 relating to filing of claim petition and the limitation within which they are to be filed. At para 7, the Supreme Court held thus: "It is true that the appellant earlier could file an application even more than six months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired. The answer is in the negative. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly enforceable as a right. So far the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act-subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will ....
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....now is restricted to 30 and 60 days respectively. We are therefore, not inclined to accept the submissions made on behalf of the petitioners that a substantive right is taken away by virtue of the impugned Amendment Act No. 8 of 1997 which came into effect from January 4, 1997. 29.. We may at this stage think it appropriate to indicate that challenge to a provision of any enactment made either by Parliament or State Legislature could be made only on two grounds, viz., (i) lack of legislative competence; and (ii) violation of fundamental rights or other Constitutional provisions. The honourable Supreme Court in McDowell's case AIR 1996 SC 1627 while dealing with a case arising out of imposition of prohibition on the manufacture and sale of liquor within the State of Andhra Pradesh, held thus: "A law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other Constitutional provisions. There is no third ground. If an enactment is challenged as violative of article 14, it can be st....