M SHANMUGAM Vs. DEPUTY COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) By consent both the writ petitions are taken up together for disposal, as the prayer in these two writ petitions is one and the same seeking for a declaration that the words "provided further no appeal filed by any person objecting to an order passed (a) under sub section (3) of section 31, shall be entertained unless it is accompanied by satisfactory proof for payment of the tax as ordered by the Appellate Assistant Commissioner" in section 4 of the TNGST (4th Amendment) Act, 1999 Act 14 of 1999 to be violative of the fundamental right to carry on business and trade, right to life and personal liberty and due process of law guaranteed under Article 19 (1) (g), Article 21 and 265 of the Constitution of India and therefore unconstitutional. The argument advanced are made common for both the writ petitions.

(2.) The petitioners filed OPs 499 and 450 of 2003 before the Tamil Nadu Taxation Special Tribunal challenging the above said provision and on abolition of the Tribunal those OPs were transferred and are numbered as writ petitions and taken up for disposal.

(3.) Before stating the facts, a small prelude as stated in the affidavit, having a bearing on the case has to be stated. It is averred in the affidavit that the Tamil Nadu Taxation Special Tribunal heard original petitions challenging the validity of the provisions of the TNGST (4th Amendment) Act, 1999, (Act 14 of 1999) providing for pre-deposit of 25% in the case of first appeal and for pre deposit of the entire 75% of the remaining disputed amount, in the case of second appeal and upheld the validity of the provisions in the decision in the case of Hugs Advertising Industries V/s. CTO, Vadapalani Circle, Chennai, 2000 119 STC 591 Inspite of that the petitioners ventured to file the above OPs before the same Tribunal seeking to declare the above said provision as unconstitutional on the ground that when the Hugs case was argued no argument was advanced as to the constitutional validity, but argument was confined to the date from which the provision of TNGST (4th Amendment) Act would become effective. In order to emphasise that point, the petitioners extracted certain portion of the order of the Tribunal, which reads as follows :