S. Sankarasubban, J.
1. The above tax revision cases were filed by the Revenue against the same assessee, Janatha Expeller Company. T.R.C. No. 223 of 1998 is with regard to the assessment year 1981-82 in respect of the Central Sales Tax Act, T.R.C. No. 224 of 1998 is with regard to the assessment year 1981-82 under the Kerala General Sales Tax Act, 1963 (hereinafter referred to as 'the Act') and T.R.C. No, 225 of 1998 is with regard to the assessment year 1980-81. In T.R.C. Nos. 223 and 224 of 1998, the original assessments were completed on June 24, 1985. In T.R.C. No. 225 of 1998, the original assessment was completed on May 22, 1985.
2. The assessee invoked the jurisdiction of the Deputy Commissioner under Section 35 of the Act. Section 35 of the Act underwent an amendment by Finance Act, 1993 with effect from April 1, 1993. Section 35 of the Act before the amendment is as follows :
'Powers of revision of the Deputy Commissioner suo motu.--(1) The Deputy Commissioner may, of his own motion, call for and examine any order passed or proceedings recorded under this Act by any officer or authority subordinate to him other than an Appellate Assistant Commissioner and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such order thereon as he thinks fit.'
Section 35 of the Act after the amendment is as follows :
'35. Powers of revision of the Deputy Commissioner suo motu.--(1) The Deputy Commissioner may, of his own motion, call for and examine any order passed or proceedings recorded under this Act by any officer or authority subordinate to him other than an Appellate Assistant Commissioner which in his opinion is prejudicial to revenue and may make such enquiry, or cause such enquiry to be made and, subject to the provisions of this Act, may pass such order thereon as he thinks fit.'
The assessee invoked the jurisdiction of the Deputy Commissioner under Section 35 of the Act by filing an application on June 24, 1993. The Deputy Commissioner by order dated August 19, 1993 declined jurisdiction to the assessee on the finding that after the amendment a revision is permissible under Section 35 of the Act only if the order sought to be revised is prejudicial to the Revenue. The assessee filed appeals before the Sales Tax Appellate Tribunal. The Tribunal, placing reliance on Deputy Commissioner of Sales Tax v. Balachandran [1988] 69 STC 165 (Ker) and V. Krishnaswamy Chettiar v. State of Tamil Nadu [1993] 90 STC 344 (Mad.) allowed the appeal and set aside the order passed by the Deputy Commissioner and directed the Deputy Commissioner to consider the matter again on merits. It is against the above order that the tax revision cases were filed.
3. W.A. No. 1373 of 1999 is filed against the judgment of a learned single Judge in O.P. No. 3746 of 1999. The appellant is an assessee under the Sales Tax Act. The assessments in question are for the years 1984-85 to 1986-87. The assessment was made under Section 17(3) of the Act based on the yield fixed for the agricultural income-tax assessment for the relevant years. The agricultural income-tax assessments for the relevant years were set aside. Hence, the petitioner approached the Deputy Commissioner by filing revision under Section 35 of the Act. But the Deputy Commissioner dismissed the revision on the ground that it has no jurisdiction, since the order was not prejudicial to the Revenue. Against that the petitioner filed revision before the Commissioner of Commercial Taxes. He also took the view that the order of the Deputy Commissioner was correct. Hence this original petition was filed challenging the order passed by the Deputy Commissioner and the Commissioner of Commercial Taxes. The learned single Judge took the view that the amendment applies to the revisions filed before the Deputy Commissioner and hence dismissed the original petition. It is against that the present writ appeal is filed.
4. Thus, the question for consideration is whether the amendment to Section 35 of the Act which came into force on April 1, 1993 is applicable to orders passed before that date by the assessing authority. Before the amendment, the Deputy Commissioner had the authority to call for and examine any order passed or proceedings recorded under the Act and pass such orders as he thinks fit. But after the amendment, this could be exercised only with regard to proceedings or act which is prejudicial to the Revenue. Thus, after the amendment, if an order is not prejudicial to the Revenue, Section 35 of the Act cannot be invoked. Prior to the amendment, even the assessee can bring to the notice of the Deputy Commissioner the illegality of the order passed by the assessing officer. The only thing is that he should bring to the notice of the Deputy Commissioner within four years from the date of the order of assessment. Thus, the question that arises for consideration is whether the amendment takes away the right, which the assessee had, to approach the Deputy Commissioner in revision with regard to orders passed prior to the amendment.
5. There is no dispute that the amendment effected under Section 35 of the Act is not retrospective in operation. The contention urged by the learned counsel for the Revenue is that the right of revision is only a procedural right and so far as the procedural rights are concerned, no person has vested right and hence, any amendment to the procedure will be applicable to pending proceedings also. On the other hand, learned counsel for the assessee contended that the right of revision is not a mere procedural right. It is a right conferred on the assessee by the statute. In so far as there is no retrospective operation to the amendment, the assessment orders passed before the amendment are liable to be adopted by the Deputy Commissioner under Section 35 of the Act as per the amended form.
6. A cardinal principle of construction is that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect. Retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication. Lord Denning in Blyth v. Blyth (1966) 1 All ER 524 (HL) held as follows : 'The rule that an Act of Parliament is not to be given retrospective effect only applies to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure, or the admissibility of evidence or the effect which the courts give to evidence.'
7. Chapter VII of the Act deals with appeals, revisions and refunds. Section 34 of the Act deals with provisions of appeals to the Appellate Assistant Commissioner. Section 35 of the Act before its amendment gave power to the assessee to invoke the power of revision in cases where time for appeal has expired and more than four years have not expired after the passing of the order referred to therein. Section 36 of the Act is another power given to the assessee to file revision. This power can be invoked in cases where an appeal is not provided for under Section 34 or Section 39 of the Act within a period of thirty days. Under Sections 37 and 38 of the Act powers of revision are conferred on the Board of Revenue and under Section 39 power of appeal is conferred on the Appellate Tribunal. The scope of Section 35 of the Act was considered by a division Bench of this Court in the decision reported in Deputy Commissioner of Sales Tax v. Balachandran [1988] 69 STC 165. K.S. Paripoornan, J., speaking for the Bench observed thus :
'On a fair interpretation of Sections 35 and 36 of the Kerala Act, in the light of the various decisions mentioned above, we are of the view that the power of revision is conferred on the Deputy Commissioner to remedy injustice. The power is couched in very wide terms. The purpose for which the power of such amplitude is given is to safeguard the interest of the Revenue and also that of the assessee. It is open to the assessee or to the Revenue to bring it to the notice of the authority (Deputy Commissioner) any error made by a subordinate authority and it is for the Deputy Commissioner to consider whether the case is a fit one, in exercise of the revisional jurisdiction. Since the power of revision can be exercised to set right the error or illegality of a subordinate authority and it could be exercised for or against the assessee, such power can be exercised, even if the assessee has not filed an appeal against the order, for the purpose of setting right the improper or the illegal order .......... When circumstances warranting the exercise of the power come to the notice of the concerned authority, the mere fact that the circumstances for the exercise of that power are shown to exist, by the assessee in a particular case, cannot be a factor or reason for the non-exercise or refusal to exercise the said power.'
Thus, this Court held that the assessee was having a right under Section 35 of the Act as it stood earlier to bring to the notice of the Deputy Commissioner any irregularity or injustice in the order passed by the lower authority and that the Deputy Commissioner cannot refuse to perform his function merely because the matter is brought to his notice by the assessee.
8. In Board of Revenue, Madras v. Raj Brothers Agencies [1973] 31 STC 434, the Supreme Court was dealing with Section 34(1) of the Madras General Sales Tax Act, 1959 which deals with suo motu power of revision to the Board of Revenue. Under Section 34(1), the Board of Revenue was given suo motu power to call for any order passed or proceeding recorded by the appropriate authorities under some of the provisions of the Act, Dealing with that, Hegde, J., on behalf of the Bench, observed thus :
'Yet another contention was taken on behalf of the State, It was contended on behalf of the State that the assessee had no right to invoke the jurisdiction of the Board to exercise its revisional power. This contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under Section 34, then in the absence of any vitiating circumstance recognised by law, the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessee's appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence the High Court was justified in interfering with that decision.'
The above decision also shows that even though suo motu power is conferred on the authority, the assessee has got a right to compel the revisional authority to look into his grievance. Section 35 of the Act had undergone amendment earlier. The question whether the amendment applied to pending proceedings was also considered earlier. In the decision reported in Forward Traders v. State of Kerala [1988] 69 STC 21 (Ker), a division Bench had occasion to consider a similar question. The occasion to consider that question arose when Section 35(2A) of the Act was introduced by an amendment. As per Section 35(2A) of the Act, the Deputy Commissioner is given power to decide any point which has not been decided in appeal or revision within one year of order in appeal or four years from the date of assessment order. The facts of that case are as follows : For the three years, 1972-73, 1973-74 and 1974-75, assessment orders were passed against the assessee. The assessee had filed appeals before the Deputy Commissioner of Sales Tax (Appeals). For the first two years, the appeals were disposed of on May 10, 1978 and for the year 1974-75, the appeal was disposed of on April 26, 1978. The Deputy Commissioner of Sales Tax, Ernakulam, took the view that the assessee is not entitled to the benefit of the concession contemplated by Notification, S.R.O. No. 116 of 1966, and initiated suo motu revision proceedings under Section 35(2A) of the Act by issuing notice dated November 6, 1979. By order dated January 30, 1980, the Deputy Commissioner of Agricultural Income-tax and Sales Tax (Central Zone), Ernakulam, set aside the assessment orders for all the three years and remitted the matter to the assessing authority for fresh disposal according to law. This was so done notwithstanding the objections of the assessee objecting to the jurisdiction of the Deputy Commissioner of Sales Tax to initiate suo motu proceedings and also the plea on the merits. Section 35(2A) was inserted in the statute from April 1, 1978. The question arose whether jurisdiction could have been invoked in respect of the orders in question. In dealing with this contention, the Bench observed thus :
'Admittedly, no retrospective effect has been given to Section 35(2A) of the Act by the Amendment Act (Act 21 of 1978). It cannot be doubted that a wider or enlarged jurisdiction is vested in the Deputy Commissioner to suo motu revise orders, under Section 35(2A) of the Act. As per Section 35 of the Act, as it stood on the day when the assessments were rendered in these cases (15th March, 1977), and still later when the appeals were filed by the assessee against these three orders, suo motu revision by the Deputy Commissioner was not possible under Section 35(2)(b), since the assessment orders were made the subject of appeals. In other words, the assessment orders acquired finality subject to the disposal of the appeals filed by the assessee. In this view of the matter, it appears to us, that the new provision, Section 35(2A) of the Act, affects or impairs the existing rights of the assessee. It adversely affects substantive rights. We are of the view that Section 35(2A) is not a mere matter of procedure and the wider or enlarged jurisdiction cannot be invoked against orders made before the commencement of the amending Act. The decision of the Supreme Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas AIR 1968 SC 1336 concludes the point against the Revenue.'
9. In V. Krishnaswamy Chettiar v. State of Tamil Nadu [1993] 90 STC 344, a similar question arose before the Madras High Court. There also, the power of revision under Section 32 of the Tamil Nadu General Sales Tax Act, 1959 was curtailed. A division Bench consisting of Bakthavatsalam and Raju, JJ., held that when the order of assessment was passed, the petitioner had a right of revision to the Deputy Commissioner and the amendment cannot take away that right. Their Lordships relied on the decision reported in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114 (SC) and distinguished the decision of the same High Court in K. Ganesh v. State of Tamil Nadu [1988] 68 STC 84 (Mad.). In State of Andhra Pradesh v. Kothuri Venkateswarlu and Sons [1992] 85 STC 334, a division Bench of the Andhra Pradesh High Court considered the amendment to Section 20(1) of the Andhra Pradesh General Sales Tax Act, by which the power of revision was restricted to cases where the orders were prejudicial to the interests of the Revenue. The division Bench held that in taxation matters the statutory right of appeal or revision are also vested rights and is to be determined from the law as it was when the order of assessment was passed. In Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114, the Supreme Court was considering the question regarding the right of appeal. There, the Supreme Court has considered whether the amendment was merely an amendment. Under Section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947 as it stood prior to its amendment, the assessee is entitled to appeal provided he paid such amount of tax as he might admit to be due from him. Under Section 22(1) as amended, the appeal had to be accompanied by satisfactory proof of payment of the tax in respect of which the appeal had been preferred. The assessment proceedings of the assessee-company were initiated prior to the amendment of the section but the order of assessment was made after the amendment. The assessee contended that as the amendment has not been made retrospective its right of appeal under the original Section 22(1) remained unaffected and that as it did not admit anything to be due, it was not liable to deposit any sum along with its appeal to the Sales Tax Commissioner. The Supreme Court held that the new requirement in the proviso to Section 22(1) could not be said merely to regulate the exercise of the assessee's pre-existing right but in truth whittled down the right itself and could not be regarded as a mere rule of procedure.
10. The Patna High Court had occasion to deal with the scope of power of revision and the impact of an amendment on such power in the decision reported in Vishanji v. State of Bihar [1961] 12 STC 226. Ramaswami, C.J., speaking for the Bench, observed thus : 'We, therefore, hold that there is no difference in the intrinsic quality between a 'right of appeal' and a 'right of revision' to a Tribunal. In either case there is a question of interference with an existing vested right, and the principle of the Supreme Court decision in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114 applies as much to a vested right of appeal as to a vested right of revision given to a superior taxing authority'. Another decision cited by the learned counsel for the assesses is the decision reported in Siemens India Ltd. v. State of Maharashtra [1986] 62 STC 40 (Bom). There, the question that was considered was whether the prescription of new period of limitation for filing a revision, will affect the previous proceedings. In dealing with that contention, the court held as follows : 'The right of the Commissioner to initiate suo motu revision proceedings in respect of an assessment order is similar to a right of appeal in that context though it may differ from a right of appeal in other regards. At the time when the assessment proceedings are initiated the assessee has a right to have these proceedings finalised in accordance with substantive law then in force'. Dhinakar, J., in Sree Ganesh Wood Works v. Sales Tax Officer (1996) 4 KTR 253, held as follows :
'It is not in dispute that at the time when the revisions were filed, the second respondent, viz., the revisional authority was vested with the power to take suo motu revision to revise the orders of the assessing authority and that the petitioner only invoked such a power which existed at the time when he filed the revision petitions in view of the notification, exhibit P5. In my view the second respondent was not justified in rejecting the revisions on the ground that there was a subsequent amendment which took away the power of the revisional authority to pass any order prejudicial to the Revenue. A reading of the exhibit P5 notification, would show that the Government considered all these aspects and then issued the said notification giving retrospective effect to the said notification by granting exemption to the softwood with effect from April 1, 1984. I am of the view that the revisional authority was not justified in rejecting the revisions filed by the petitioner and hence the order, exhibit P11, passed by the revisional authority has to be quashed and accordingly it is quashed.'
Viswanatha Iyer, J., had occasion to consider the scope of revision under the Building Tax Act in the decision reported in Mrs. Safia Rahman v. State of Kerala 1993 KLJ (TC) 303. In the above decision, it was held as follows : 'Whatever has been stated in relation to right of appeal in a civil proceeding must apply equally to any proceeding under a special statute. No distinction can be made on this point between the right of appeal and a proceeding in revision, inasmuch as the remedy of revision statutorily provided is also a right which is available to a party aggrieved and vests in him as and when the Us commences. As was observed in Garikapati Veerayya AIR 1957 SC 540, 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 the regarded as one legal proceeding. A statutory remedy of revision is one available to the aggrieved party as of right and cannot be negatived except on grounds specified in the statutory provision itself.'
11. The above decisions support the case of the assessee that amendment does not apply to assessment proceedings started before the amendment. Learned Government Pleader brought to our notice the decision reported in Karmadi Stone Cutting and Polishing v. Joint Commissioner of Commercial Taxes (Vigilance), Bangalore [1988] 68 STC 345 (Kar). There the section in question was Section 22-A of the Karnataka Sales Tax Act, 1957. Originally, under Section 22-A, the power of revision was conferred on the Commissioner. That was amended by conferring the power on the Joint Commissioner also. The question was whether the Joint Commissioner can exercise power with regard to the assessment proceedings before the amendment. According to us, the above decision does not apply to the facts of this case, because the right of revision was not taken away. The decision reported in State of Tamil Nadu v. Samco Metals and Alloys (Private) Ltd. [1997] 104 STC 616 (Mad.), no doubt, supports the argument of the learned Government Pleader. But that decision does not take note of the Bench decision of the Court in V. Krishnaswamy Chettiar v. State of Tamil Nadu [1993] 90 STC 344 (Mad.). Another decision cited was K. Ganesh v. State of Tamil Nadu [1988] 68 STC 84 (Mad.) distinguishable on the facts of the case and was concerned with the applicability of the Limitation Act. Hence, it is not applicable to the facts of this case.
12. Thus, on a conspectus of the various decisions and the authorities on the subject, we are of the view that the right of revision conferred under Section 35 of the Act cannot be said to be a mere procedural right. A party, who has not filed an appeal, has got a right to approach the revisional authority under Section 35 of the Act. It was an alternate remedy to the assessee. By the decision of this Court, the assessee could file revision before the Deputy Commissioner under Section 35 of the Act to look into the complaint filed and find out whether injustice has been caused to the assessee. This, according to us, is a right that is vested in the assessee at the time when the assessment orders were passed. Now by the amendment, this right has been taken away and now the power under Section 35 of the Act is available only with regard to those matters, which are prejudicial to the Revenue. This, according to us, affects substantive right of the assessee.
13. In the aforesaid view of the matter, the tax revision cases are dismissed. The Deputy Commissioner is directed to consider and dispose of the revision petitions filed by the assessee on merits. Writ appeal is allowed and the judgment of the learned single Judge is set aside. Exhibits P3 and P5 orders are quashed. The second respondent--Deputy Commissioner is directed to dispose of exhibit P2 revision on merits.