SURYA SERVICE STATION Vs. UNION OF INDIA

JUDGEMENT

(1.) IN W. P. No. 5391 of 2001, the petitioner had challenged the order of the second respondent made in proceedings No. Re. 1396/aac/2000 dated February 27, 2001 and for a consequential direction to the second respondent to admit the appeal filed by the petitioner on September 14, 2000 challenging the assessment order dated August 21, 2000 passed by the second respondent demanding payment of 25 per cent of the difference of tax as assessed and the tax as admitted and dispose of the appeal on merits.

(2.) IN W. P. Nos. 4355 and 4356 of 2001, the petitioners pray for the issue of a writ of mandamus directing the second respondent to admit the appeal preferred by the petitioners on September 14, 2000 and August 25, 2000 respectively challenging the assessment order dated August 4, 2000 and August 18, 2000 respectively of the third respondent without demanding payment of 25 per cent of the difference of the tax as assessed and the tax as admitted and dispose of the appeal on merits.

(3.) MR. R. Natarajan, learned Additional Government Pleader, Pondicherry on the other hand submitted that the Supreme Court in Hardeodas Jagannath v. State of Assam [1970] 26 STC 10; AIR 1970 SC 724, while considering the question of applicability of the Central Government Notification dated April 15, 1948 extending the Assam Sales Tax Act (17 of 1947) to Shillong Administered Areas, finally laid down the law in the following words : "it was contended that the amendment came into force with effect from April 1, 1958, and it cannot be given retrospective effect so as to apply to assessment periods ending on September 30, 1956, March 31, 1957 and September 30, 1957. We are unable to accept this argument as correct because the assessments for these periods were completed after the amending Act came into force, i. e. , after April 1, 1958. The appeals against the assessments were also filed after the amendment". Learned counsel therefore submitted that the law laid down by the Constitutional Bench is binding on this Court. In fact, the said judgment also came up for consideration by the Special Tribunal in the judgment referred by the learned counsel for the petitioners in Hugs Advertising Industries v. Commercial Tax Officer [2000] 119 STC 591. While considering the said judgment, the Tribunal was more on the point of deciding the lis between the parties. In fact, the judgment of the Supreme Court in Hardeodas Jagannath v. State of Assam [1970] 26 STC 10; AIR 1970 SC 724 was excluded by the Tribunal on the ground that the main question related to the extension of Assam Sales Tax Act (17 of 1947) to Shillong Administered Areas. The learned counsel submitted that the question of the applicability of the amendment Act to the assessments which were not completed prior to the amendment and admittedly completed after the amendments were not considered and discussed. Therefore the learned Additional Government Pleader submitted that in view of the judgment of the Supreme Court in Hardeodas Jagannath v. State of Assam [1970] 26 STC 10; AIR 1970 SC 724, the petitioners in order to prefer appeal should abide by the amended provisions of section 34 and deposit the 25 per cent of the difference of tax assessed. Learned Additional Government Pleader would also rely upon yet another judgment in Goodluck Agencies v. State of Tamil Nadu [1999] 113 STC 122, wherein the Tamil Nadu Taxation Special Tribunal while considering a similar amendment in the Tamil Nadu General Sales Tax (Amendment) Act, 1997 held that the date of the actual assessment is the relevant date for the purpose of filing appeal. Hence, the learned counsel submitted that the impugned order in W. P. No. 5391 of 2001 is in order with the law laid down by the apex Court in the judgment in Hardeodas Jagannath v. State of Assam [1970] 26 STC 10; AIR 1970 SC 724. It is not in dispute that the assessment orders were passed after the Amendment Act No. 4 of 2000, which came into force on June 1, 2000. The submission of the learned counsel for the petitioner based upon the judgment of the Special Tribunal in Hugs Advertising Industries v. Commercial Tax Officer, Vadapalani Assessment Circle, Chennai [2000] 119 STC 591 is that the relevant date, to be the date of filing of return or the return was due whichever is earlier alone be taken into consideration for the purpose of imposing any conditions. It is to be seen that as rightly pointed out by the learned Additional Government Pleader, the Tribunal in the said judgment excluded the judgment of the apex Court in Hardeodas Jagannath v. State of Assam [1970] 26 STC 10; AIR 1970 SC 724, taking into consideration as the main question in the said judgment was related to extension of Assam Sales Tax Act to Shillong Administered Areas. The applicability of the amended provisions with reference to the payment of deposit as a precondition for appeal was not in fact put forth and decided in the judgment. As apparently, the very same Tribunal in yet another judgment in Goodluck Agencies v. State of Tamil Nadu [1999] 113 STC 122 has held that the right of appeal is not an inherent right and it is not also a fundamental right and the right of appeal is a mere creature of the statute and it is open to the Legislature which creates such a right to take away the same, if necessary. The Tribunal also observed that when return is filed, and the same is not accepted and the officer proposes to assess the dealer in a different way by issuing a pre-assessment notice, the lis commences. But only when this difference of opinion takes the form of an assessment order, it can be said that the lis has actually taken a proper and legal form. Instead of leaving the matter in doubt or to the whims and fancies of the parties or the assessing authorities, it is proper to hold that the dispute between the parties commences only when an order of assessment is made. The above judgment would also indicate that this point was not put before the Tribunal and there was no decision on the said issue when the Tribunal rendered the order in Hugs Advertising Industries v. Commercial Tax Officer, Vadapalani Assessment Circle, Chennai [2000] 119 STC 591. This leaves the question as to the law laid down by the Supreme Court in Hardeodas Jagannath v. State of Assam [1970] 26 STC 10; AIR 1970 SC 724. The Supreme Court while considering the applicability of the amendment Act with reference to the date on which the assessment orders are made held as follows : " It was contended that the amendment came into force with effect from April 1, 1958, and it cannot be given retrospective effect so as to apply to assessment periods ending on September 30, 1956, March 31, 1957, and September 30, 1957. We are unable to accept this argument as correct because the assessments for these three periods were completed after the amending Act came into force; i. e. , after April 1, 1958. The appeals against the assessments were also filed after the amendment. "